                              NO. 12-09-00282-CV

                       IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                   TYLER, TEXAS

IN THE INTEREST                                  '   APPEAL FROM THE 307TH

OF K.H.O.T.T.,                                   '   JUDICIAL DISTRICT COURT OF

A CHILD                                          '   GREGG COUNTY, TEXAS
                              MEMORANDUM OPINION
       This is an accelerated appeal from the trial court’s order terminating Appellant’s
parental rights. In her sole issue, Appellant contends that Texas Family Code Section
263.405 denies constitutionally guaranteed due process of law to indigent parents who
are appointed new counsel on appeal. We affirm.

                                      BACKGROUND
       Appellant is the mother of K.H.O.T.T., who has been of concern to the Texas
Department of Family and Protective Services since her birth in 2005. In August 2008,
the Department filed its original petition to terminate Appellant’s parental rights.
Appointed counsel represented Appellant at the July 20, 2009 termination hearing.
However, the trial court signed an order appointing new counsel on July 28, 2009, to
handle the appeal. The order of termination was signed by the trial court on August 3,
2009. On August 11, appellate counsel filed a motion for transcription of trial testimony,
a statement of points for appeal, a notice of appeal, and a motion for new trial. Included
in the statement of points for appeal are three sufficiency complaints and the assertion
that Texas Family Code Section 263.405(i) is unconstitutional as applied to indigent
parents who have different appointed counsel for trial and appeal. A hearing was held
September 3, 2009, and the trial court found Appellant to be indigent, denied the motion
for new trial, and found the appeal to be frivolous. At that hearing, appellate counsel said
he discussed the case with trial counsel. The trial court stated on the record that appellate
counsel would have the opportunity to meet with the court reporter and review the tapes
from the trial.

                           CONSTITUTIONALITY OF SECTION 263.405
        In her sole issue, Appellant complains of Section 263.405 of the Texas Family
Code, which sets out the statutory procedures governing a parent’s appeal from a decree
that terminates the parent-child relationship. She asserts that Section 263.405 denies due
process of law to indigent parents who are appointed new counsel on appeal in violation
of the Fourteenth Amendment of the United States Constitution. Compliance with the
statute, she contends, forces appellate counsel to face the “impossible task” of
formulating a statement of points required for appeal without a reporter’s record of the
trial. Obtaining a free reporter’s record of the termination trial is contingent on a finding,
based on the statement of points, that the appeal is not frivolous. Thus, she complains,
the operation of Section 263.405 is circular because it prevents an indigent parent from
obtaining a record until after the trial court rules on points that require a record to
formulate and present. Therefore, she asserts, the operation of Section 263.405 can
hinder an appellate attorney from preserving issues for appeal. Because there is a great
risk that application of Section 263.405(b) and (i) will bar review of issues, her argument
continues, Section 263.405(b) and (i), when read together, deprive the parent in
termination cases of procedural due process.
Applicable Law
        Section 263.405 of the Texas Family Code applies to appeals from final orders
rendered in parental rights termination suits and imposes strict deadlines for the process.
See TEX. FAM. CODE ANN. § 263.405 (Vernon 2008).1 A party intending to appeal a final
order terminating parental rights must file with the trial court, no later than fifteen days
after the final order is signed, a statement of points on which the party intends to appeal.
Id. § 263.405(b). An appellate court may not consider any issue that was not specifically
presented to the trial court in a timely filed statement of points. Id. § 263.405(i). The
trial court must hold a hearing not later than the thirtieth day after the date the final order
is signed to determine whether a new trial should be granted, whether a party’s claim of
        1
            Section 263.405(b) was amended in 2007 and that amendment does not apply to this case.
However, because the amendment does not affect our analysis or disposition, we cite to the current version
of the statute to avoid confusion.
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indigence should be sustained, and whether the appeal is frivolous as provided by Section
13.003(b) of the Texas Civil Practice and Remedies Code. Id. § 263.405(d). The test for
determining if a party is indigent and therefore entitled to a free record is set forth in civil
practice and remedies code section 13.003 and requires, among other things, a finding
that the appeal is not frivolous. See TEX. CIV. PRAC. & REM. CODE ANN. § 13.003(a)
(Vernon 2002). Therefore, the determination by the trial court that the appeal of the
order of termination of parental rights is frivolous has the consequence of denying the
indigent parent the right to a free clerk’s record and reporter’s record of the underlying
trial. See TEX. CIV. PRAC. & REM. CODE ANN. § 13.003(a)(2)(A). If a trial court
determines in a Section 263.405(d) hearing that an appeal on the issues attempted to be
raised by the parent would be frivolous, review is limited to the record of that hearing. In
re B.G., No. 07-0960, 2010 Tex. LEXIS 477, at *21 (Tex. July 2, 2010).
Discussion
        Appellant asserts that the operation of Section 263.405 is circular. She complains
that an indigent parent cannot obtain a free record until the trial court finds her appeal is
not frivolous, a finding made after reviewing her points for appeal that require assessment
of the record to formulate. Here, appellate counsel was appointed before the termination
order was signed, and appellate counsel said he had discussed the case with trial counsel.
Appellate counsel timely filed a statement of points for appeal asserting four points. At
the close of the Section 263.405(d) frivolousness hearing, the trial court ordered that
appellate counsel have the opportunity to meet with the court reporter and review the
tapes from the trial. Thus, Appellant had access to the record before her appellate brief
was filed. Yet, not only has Appellant not raised three of the issues included in her
statement of points, but she has raised no issues that were not included in her statement of
points. Appellant does not indicate how she personally was harmed by application of
Section 263.405. That is, even though she had access to the record, she does not suggest
any appellate issue that she was prevented from raising as a result of Section 263.405 and
does not show how any constitutional violation resulted in an improper judgment. See In
re D.J.R., No. 08-07-00354-CV, 2010 Tex. App. LEXIS 42, at *12 (Tex. App.–El Paso
Jan. 6, 2010, pet. denied); In re J.J., No. 02-06-333-CV, 2008 Tex. App. LEXIS 1714, at
*1 (Tex. App.–Fort Worth Mar. 6, 2008, pet. denied).
        We must avoid constitutional decisions until the issues are presented with clarity,
precision, and certainty. See Rescue Army v. Mun. Court, 331 U.S. 549, 576, 67 S. Ct.
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1409, 1423, 91 L. Ed. 1666 (1947). Thus, we cannot decide abstract, hypothetical, or
contingent questions. The subject matter jurisdiction of courts rests, in part, on the
ripeness of the issues. Patterson v. Planned Parenthood of Houston and Se. Tex., Inc.,
971 S.W.2d 439, 442 (Tex. 1998). Ripeness is one of several categories of justiciability.
See Perry v. Del Rio, 66 S.W.3d 239, 249 (Tex. 2001). Justiciability requires a concrete
injury, a requirement based on the judicial prohibition against issuing advisory opinions.
See Patterson, 971 S.W.2d at 442-43.
         In some cases, upon studying the record of the trial court proceedings, an
appellate attorney might uncover additional issues not previously raised that he would
want to present for appellate review. However, we cannot declare a statute invalid based
on a hypothetical possibility that the law may be unreasonable. See United States v.
Coastal Ref. and Mktg., Inc., 911 F.2d 1036, 1044 (5th Cir. 1990). Here, Appellant had
access to the record on appeal and yet did not brief any issues she was unable to raise in
the trial court due to unavailability of the record at the time her statement of points was
due.    Appellant’s sole complaint on appeal is hypothetical rather than definite and
concrete. We overrule Appellant’s sole issue.

                                               DISPOSITION
         Because Appellant’s sole issue is not ripe for review, we affirm the trial court’s
order of termination.

                                                                SAM GRIFFITH
                                                                    Justice


Opinion delivered August 11, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                (PUBLISH)



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