In Re Rbm
338 S.W.3d 755
Tex. App.2011Background
- This is an accelerated appeal from a July 13, 2010 judgment terminating parental rights of Luis Damian Mendez to five children.
- Appellant filed a notice of appeal on September 1, 2010, outside the accelerated-appeal timetable.
- A timely motion for new trial was filed, but accelerated appeals do not toll the timetable.
- Appellant argued three instruments sought to invoke appellate jurisdiction: motion for new trial with points, an order under Section 263.405, and an indigence affidavit.
- The court held that none of these instruments clearly invoked jurisdiction and dismissed for want of jurisdiction.
- The court treated preservation issues and ineffective-assistance arguments as insufficient to overcome lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the appeal is subject to dismissal for want of jurisdiction | Mendez contends instruments invoked jurisdiction. | Court lacked jurisdiction; instruments were not bona fide invocations. | Appeal dismissed for want of jurisdiction. |
| Whether a motion for new trial or accompanying documents can invoke appellate jurisdiction in an accelerated appeal | The motion and related papers clearly invoked jurisdiction. | They do not constitute a bona fide invocation of jurisdiction. | Not a valid invocation; jurisdiction not invoked. |
| Whether an order under Section 263.405 and an indigence affidavit can invoke jurisdiction | Order and affidavit show intent to appeal without costs. | These instruments do not invoke jurisdiction; they address costs only. | Not sufficient to invoke appellate jurisdiction. |
Key Cases Cited
- In re K.A.F., 160 S.W.3d 923 (Tex. 2005) (motion for new trial not jurisdictional; preserves issues)
- In re J.H.G., 302 S.W.3d 304 (Tex. 2010) (statement of appellate points not jurisdictional)
- In re J.O.A., 283 S.W.3d 336 (Tex. 2009) (ineffective assistance and sufficiency issues as exceptions)
- In re J.W., 52 S.W.3d 730 (Tex. 2001) (affidavit of indigence relates to costs, not invoke jurisdiction)
- Grand Prairie Indep. Sch. Dist. v. Southern Parts Imports, Inc., 813 S.W.2d 499 (Tex. 1991) (three instruments claimed to invoke jurisdiction; not clearly controlling)
- Verburgt v. Dorner, 959 S.W.2d 615 (Tex. 1997) (timelines and extensions in appellate procedure)