Opinion filed March 10, 2011




                                             In The


   Eleventh Court of Appeals
                                            __________

                                     No. 11-10-00261-CV
                                         __________

               IN THE INTEREST OF J.W. AND E.W., CHILDREN


                           On Appeal from the 326th District Court

                                      Taylor County, Texas

                                Trial Court Cause No. 6299-CX


                            MEMORANDUM OPINION
       In accordance with the jury’s verdict, the trial court terminated the parental rights of
Clark, the father of J.W. and E.W. It also terminated the mother’s parental rights; however, she
is not a party to this appeal. We affirm.
       Originally, in earlier proceedings, the trial court appointed the Texas Department of
Family and Protective Services first as temporary managing conservator of the children and then
as managing conservator of the children. The Department sought those appointments as well as
termination after it received a referral in which it was reported that Clark had sexually abused his
eight-year-old daughter, E.W. When interviewed at the Child Advocacy Center, E.W.’s brother,
J.W., reported that Clark kicked and punched him.          E.W. reported that Clark had orally,
vaginally, and anally abused her.
         When the trial court appointed the Department permanent managing conservator, it
provided that the Department would not seek to transfer permanent managing conservatorship of
the children until such time as Clark’s criminal charges were resolved. Subsequently, a jury
resolved those questions when it convicted him of three counts of aggravated sexual assault of a
child. The trial court sentenced Clark to serve three concurrent prison terms of seventy-five
years.
         After the criminal cases against Clark were concluded, the Department filed an amended
petition in which, among other things, it sought to terminate each parent’s parental rights to the
children. As we have said, based upon the findings of the jury, the trial court terminated both
parent’s parental rights.
         Clark presents us with just one issue in this appeal. He maintains that the trial court erred
when it refused to give an instruction to the jury in accordance with TEX. FAM. CODE ANN.
§ 263.404(a)(2) (Vernon 2008). That section provides that, before a court may enter a final order
in which the Department is appointed managing conservator, it must find that “it would not be in
the best interest of the child to appoint a relative of the child or another person as managing
conservator.” Based upon the court’s opinion in In re J.A.J., 243 S.W.3d 611, 615 (Tex. 2007),
we recently held that this section applied only when the trial court does not order termination.
In re D.O., 2011 WL 173555, No. 11-09-00337-CV (Tex. App.—Eastland Jan. 20, 2011, no
pet. h.).    In the case under consideration, the trial court ordered termination, and
Section 63.404(a)(2) has no application to this case. Clark’s sole issue on appeal is overruled.
         The Department advances other theories upon which it suggests that we could base our
decision in this case. However, in view of our holding that Section 263.404(a)(2) does not apply
to this case, we need not discuss those other theories.
         The judgment of the trial court is affirmed.


                                                               JIM R. WRIGHT
                                                               CHIEF JUSTICE
March 10, 2011
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.

                                                   2
