                                   NO. 07-07-0356-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                   JANUARY 11, 2008

                         ______________________________


                 IN THE INTEREST OF J.X.P. AND D.M., CHILDREN

                       _________________________________

           FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 98-503,708; HONORABLE CECIL G. PURYEAR, JUDGE

                         _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                               MEMORANDUM OPINION


       Appellant, Elana Sneed, filed this accelerated appeal to challenge the trial court’s

order terminating her parental rights to her children J.X.P. and D.M and appointing the

Texas Department of Family and Protective Services (DFPS) as permanent sole managing

conservator. Presenting a sole issue, Sneed maintains the trial court abused its discretion

and committed reversible error when it denied her Motion for Continuance of the final

hearing and/or denied her Motion for New Trial when final disposition resulted in

termination of her parental rights. We affirm.
       An appeal of a final order rendered under subchapter E of chapter 263 of the Texas

Family Code is governed by the rules of the Supreme Court for accelerated appeals in civil

cases and by the procedures set forth in that chapter.1 A final order terminating the

relationship between a parent and child and appointing DFPS as permanent managing

conservator is an order rendered under subchapter E of chapter 263. Therefore, the

accelerated appeal of the order in this case is governed by the procedures set forth in

Chapter 263.


       Chapter 263 of the Texas Family Code requires a party intending to appeal a final

order rendered under subchapter E to 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.2 The

statement of points may be filed separately or it may be combined with a motion for new

trial.3 The failure to timely file a statement of points does not deprive the appellate court

of jurisdiction over the appeal; however, it is necessary to preserve a point for review on

appeal.4




       1
           Tex. Fam. Code Ann. § 263.405(a)(Vernon Supp. 2006).
       2
           § 263.405(b).
       3
           Id.
       4
        Coey v. Tex. Dep’t. of Family and Protective Services, No. 03-05-0679-CV 2006
WL 1358490, *1 (Tex.App.–Austin May 19, 2006, no pet.) (not designated for publication);
In re S.E., 203 S.W.3d 14, 15 (Tex.App.–San Antonio, no pet.)



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       In 2005, in response to what it perceived as judicial activism, the Texas Legislature

enacted § 263.405(i), effective for appeals filed after September 1, 2005, which provides:


       The appellate court may not consider any issue that was not specifically
       presented to the trial court in a timely filed statement of the points on which
       the party intends to appeal or in a statement combined with a motion for new
       trial. For purposes of this subsection, a claim that a judicial decision is
       contrary to the evidence or that the evidence is factually or legally insufficient
       is not sufficiently specific to preserve an issue for appeal.


While several of our sister courts have questioned the practical application and

constitutional validity of this statute,5 every appellate court called upon to address this

question has agreed that the clear language of the statute prohibits appellate courts from

considering points not properly preserved by the timely filing of a statement of points.6


       5
       In re R.M.R., 218 S.W.3d 863, 864 (Tex.App.–Corpus Christi 2007, no pet. h.);
Pool v. Tex. Dep’t. of Family & Protective Services, 227 S.W.3d 212, 215
(Tex.App.–Houston [1st Dist.] 2007, no pet.); In re D.A.R., 201 S.W.3d 229, 231
(Tex.App.–Fort Worth 2006, no pet.); In re E.A.R., 201 S.W.3d 813, 814 (Tex.App.–Waco
2006, no pet.)(Vance, J., concurring)
       6
        In re J.W.H., 222 S.W.3d 661, 662 (Tex.App.–Waco 2007, no pet.); In re J.F.R.,
No. 09-06-0115-CV, 2007 WL 685640, *1 (Tex.App.–Beaumont March 8, 2007, no pet.);
In re J.H., No. 12-06-0002-CV, 2007 WL 172105, *1 (Tex.App.–Tyler Jan. 24, 2007, no
pet.) (not designated for publication); In re K.R., No. 09-06-0056-CV, 2007 WL 117738, *1
(Tex.App.–Beaumont Jan. 18, 2007, pet. denied); In re C.B.M., 225 S.W.3d 703, 706
(Tex.App.–El Paso 2006, no pet.); In re H.H.H., No. 06-06-0093-CV, 2006 WL 2820063,
*1 (Tex.App.–Texarkana Oct. 4, 2006, no pet.) (not designated for publication); Coey v.
Tex. Dep’t of Family & Protective Services, No. 03-05-0679-CV, 2006 WL 1358490, *1
(Tex.App.–Austin May 19, 2006, no pet.) (not designated for publication); In re S.E., 203
S.W.3d 14, 15 (Tex.App.–San Antonio 2006, no pet.); In re C.M., 208 S.W.3d 89, 91-92
(Tex.App.–Houston [14th Dist.] 2006, no pet.). See also In re R.M.R., 218 S.W.3d 863,
864 (Tex.App.–Corpus Christi 2007, no pet. h.); Pool v. Tex. Dep’t. of Family & Protective
Services, 227 S.W.3d 212, 215 (Tex.App.–Houston [1st Dist.] 2007, no pet.); In re D.A.R.,
201 S.W.3d 229, 231 (Tex.App.–Fort Worth 2006, no pet.); In re E.A.R., E.A.R., and I.D.A.,
201 S.W.3d 813, 814 (Tex.App.–Waco 2006 no pet.) (Vance, J., concurring).

                                               3
         We are cognizant that the natural right existing between a parent and child is of

constitutional dimension. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). We are also

aware that the application of this statutory limitation to the right of appeal can have harsh

results. In re R.C., No. 07-06-0444-CV, 2007 WL 1219046, at *1 (Tex.App.–Amarillo, April

25, 2007, no pet.). Nevertheless, we do not believe that it is an appropriate function of this

Court to create a means of recourse by fabricating an interpretation that would expand the

legislatively created procedures for perfection of a statutorily-created right of appeal. It is

the duty of this Court to administer the law as it is written, and not to make the law. To do

so would amount to blatant legislating from the bench.7


         The final order in this case was signed on July 24, 2007. Sneed’s trial counsel filed

a motion for new trial; however, no statement of points was included in that motion. The

deadline in which to file a timely statement of points was August 8, 2007. Sneed’s failure

to file a statement of points prohibits this Court from considering her issue that the trial

court abused its discretion in denying her Motion for Continuance and her Motion for New

Trial.


         Accordingly, the trial court’s order is affirmed.




                                                    Patrick A. Pirtle
                                                        Justice




         7
             See Turner v. Cross, 83 Tex. 218, 18 S.W. 578, 579 (1892).

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