                                 NO. 07-07-0043-CV

                             IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL B

                                OCTOBER 11, 2007
                         ______________________________

                      IN THE INTEREST OF J.L.W.M., A CHILD
                       _________________________________

         FROM THE COUNTY COURT AT LAW #1 OF RANDALL COUNTY;

            NO. 4234-L-1; HONORABLE JAMES W. ANDERSON, JUDGE
                      _______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                              MEMORANDUM OPINION


      Appellant, Johnny Lewis Monk, brings this accelerated appeal of the trial court’s

order terminating his parental rights and appointing J.L.W.M.’s mother, Carolyn Monk, as

permanent managing conservator. In two issues, Monk contends that (1) the trial court

erred in failing to determine whether Monk was indigent and, therefore, entitled to

appointment of counsel and (2) the trial court erred in failing to appoint counsel to

represent Monk. We affirm.


      The appeal of a final order rendered under Subchapter E of Chapter 263 of the

Texas Family Code is governed by the rules of the Texas Supreme Court for accelerated

appeals in civil cases and the procedures set forth in Family Code section 263.405. See
TEX . FAM . CODE ANN . § 263.405(a) (Vernon Supp. 2006).1 When a suit affecting the

parent-child relationship is filed by the Texas Department of Family and Protective Services

(“DFPS”) and DFPS is appointed temporary managing conservator during the suit’s

pendency, a final order terminating the parent-child relationship is an order rendered under

Subchapter E of Chapter 263. The present case was a suit filed by DFPS seeking

termination of Monk’s parental rights and DFPS was appointed temporary managing

conservator of J.L.W.M. during the pendency of the suit. Therefore, the accelerated

appeal of the trial court’s final order in this case is governed by the procedures set forth in

section 263.405.


       Section 263.405 requires a party intending to appeal a final order rendered under

Subchapter E to file with the trial court a statement of points upon which the party intends

to appeal no later than 15 days after the final order is signed. § 263.405(b). The

statement of points may be included within a motion for new trial or separately. Id. An

appellant’s failure to timely file a statement of points does not deprive the appellate court

of jurisdiction over the appeal; rather, it is necessary to preserve a point for appellate

review.    In re R.C., No. 07-06-0444-CV, 2007 Tex.App. LEXIS 3208, at *2

(Tex.App.–Amarillo April 25, 2007, no pet. h.).


       While many Texas courts have questioned the practical application and

constitutional validity of section 263.405, see id., at *3 n.5, all of the Texas appellate courts

that have addressed the issue have agreed that the clear language of the statute prohibits


       1
       Further references to provisions of the Texas Family Code will be by reference to
“Chapter __,” “section __,” or “§ __.”

                                               2
appellate courts from considering points which were not properly preserved by the timely

filing of a statement of points. See id., at *3 n.6. We agree with our sister courts that the

application of this statutory requirement can have harsh results and we implore the

legislature to revisit this issue, but we are obligated to apply the statute as written in cases

in which it applies. See id., at *6-*9 (Quinn, C.J., concurring).


       The final order in this case was signed on February 5, 2007. Monk, acting pro se,

timely filed a Notice of Appeal on February 23, 2007. Monk also filed a Motion to Appeal

Lower Court’s Decision, which includes a statement of points relating to the trial court’s

denial of counsel to Monk, on February 26, 2007.2 Because Monk failed to timely file his

statement of points with the trial court, he did not preserve any error for appeal.

Accordingly, we cannot consider the issues raised in Monk’s appellate brief.


       We affirm the trial court’s order.




                                            Mackey K. Hancock
                                                Justice




       2
          Monk filed his Motion to Appeal Lower Court’s Decision with this court on February
22, 2007, two days past the section 263.405 deadline. This court forwarded this motion
to the district court and it was filed there on February 26. Monk contends that application
of the mailbox rule, see TEX . R. CIV. P. 5, would allow this court to deem the document
timely filed. However, for the mailbox rule to apply, the document must have been sent “to
the proper clerk.” Id. Section 263.405(b) requires that a statement of points be filed with
the trial court. Thus, the mailbox rule does not apply to this document.

                                               3
