in the Interest of D.W., T.W., and S.G., Children

lаt- proceedings, Taylor characterizes his warranty go- deed challenge

est to the subject-matter to the district court’s ing Taylor jurisdiction. first observe that We Judgment filed his “Motion to Declare Subject-Matter Due to Lack of Juris- Void underlying proceed- diction” the same untimely it amounts to an motion ing, and judgment. to set aside the June 2008 See 329(b). court Tex.R. Civ. P. The district this reason could have denied relief for event, Taylor’s “jurisdiction- alone. challenge al” must fail because the district subject-matter jurisdiction court had over deed, partition Hill’s suit for based on the Prop.Code Ann. 23.001-002 see (West 2000), already and this has Court rejected Taylor’s premise core holding

district erred in warran- ty af- Accordingly, deed to be valid. we

firm the district court’s order. We dismiss Taylor’s

as moot ami- motion to strike the Bexley cus briefs of Consolidated emergency for an Consolidated’s motion stay. D.W., T.W.,

In the Interest of S.G., Children. No. 2-06-191-CV. Texas, Appeals Court of Fort Worth. Feb. P.C., Swanda, & Dean M. Swan-

Swanda da, Arlington, Appellant. Owens, Ad Li- Arlington,

Lee Guardian tem. Curry, Atty.,

Tim Crim. Dist. Charles Division, Mallín, Chief, Shar- Appellate M. Paschall, Johnson, Asst. A. Melissa R. on Hooten, and Duke Attys., Dist. Fort Worth Austin, Appellee.

OPINION GARDNER, ANNE Justice. a final order Betty Appellant W. to her terminating parental rights her T.W., children, D.W., S.G. three Time To Dismiss (1) Of tion For Extension issues, the one- complains she four Alterna- Final And imposed deadline section Render Order year dismissal Suit Or 268.401(a) Family Code vio- of the Texas on March For Continuance” tive Motion of Powers Clause Separation lates the the final to extend sought 2006. She (2) constitution; the trial court the Texas or, alterna- days hearing deadline extend the by denying her motion to erred until a trial date continue the tively, to (3) deadline; section one-year dismissal dead- original dismissal to the time closer code, barring re- family of the sheet re- trial court’s docket line.2 The not list- by appellate view courts issues Betty a granted that the trial court flects trial in the ed in a statement only reset the final hear- but continuance court, Separation of Powers violates the 16, 2006, the exist- still within ing May (4) constitution; Texas of the Clause Prior to deadline. ing one-year dismissal process violates due also 263.405® hearing termination beginning Constitution. We under the United States trial counsel re- Betty’s May her first Betty preserve hold that failed to 180-day requesting a her motion urged appellate proce- issue under the rules it. extension, denied but dure; that section violates 263.405® the Texas Separation of Powers Clause of merits, the trial hearing on the After a constitution; that, but on the merits- of knowingly placed or Betty that court found issue, Betty’s second the trial court did remain the children to knowingly allowed by overruling Betty’s abuse its discretion surroundings which endan- in conditions or one-year motion to extend the dismissal or emotional well-be- gered physical their Accordingly, deadline. we affirm. or Betty engaged in conduct ing, that who en- persons children with placed the Background I. Procedural endangered their in conduct which gaged D.W., Betty biological is the mother of well-being, and that or emotional physical T.W., and The Texas Department S.G.1 relationship parent-child termination of the (“Depart- Family and Protective Services of the children. in the best interest was ment”) terminate petition seeking filed a final order rendered its The trial court parent-child relationship between Bet- all Betty’s parental rights to terminating children, ty and her two older D.W. May three children on T.W., Betty gave on June birth July Department on 2005. The S.G. day af- May 2006—the fifteenth On petition an amended subsequently filed its termination ter the trial court entered adding S.G. a notice Betty’s trial counsel filed order — ap- points and statement of appeal hearing in this

The trial court set a final only insufficient-evidence peal, raising Betty filed a “Mo- April case for R., father, Monday after the first judgment, on the first biological was 1. Ricardo D.W.’s appointed appointed an anniversary The trial court the date the court never located. F., Randy represent him. attorney managing ad litem to temporary con- Department as father, biological filed an affidavit T.W.’s servator, Department’s it shall dismiss G., biological S.G.’s waiver of interest. Stevie (Vernon 263.401(a) § suit. Tex Fam.Code Ann. father, copy petition with a of the was served 2006). may Supp. trial court retain The hearing failed to of the date but and notified days an additional 180 on its docket for suit appear. extraordinary Id. circumstances. under 263.401(b). 263.401(a) provides Family code section a final trial court has rendered that unless the points.3 day- department 1—the named conserva- On June sixteenth —(cid:127) granted the trial court trial counsel’s mo- tor of the child. appointed appellate

tion to substitute and (b) may court not retain the The suit represent Betty. counsel to the court’s docket after the time de- (a) twenty-first day On June 6—the after scribed Subsection unless the signed ap- the trial court its final extraordinary court finds that circum- order — pellate counsel filed “Motion for New remaining stances necessitate the child Supplemental Trial and Statement managing temporary conservator- Appeal.” supplemental Points on In her ship department of the and that continu- points, Betty contended that the evidence department ing appointment of the factually support insufficient to temporary managing conservator is family trial court’s order and that code the best interest of the child. If the separation violates the findings, court makes those the court powers provision of the Texas constitution may retain the suit on the court’s docket and the Due Process Clause of the United period days for a not to exceed 180 after States This appeal Constitution. followed. (a).4 the time described Subsection family The version of code section II. Discussion applicable provides: to this suit 263.405® noted, previously Family As Texas Code not consider one-year provides section 263.401 dis- specifically pre- issue was not affecting missal deadline for a suit timely sented to the trial court in a filed parent-child relationship filed the De- on which the statement partment requests termination con- or in a party intends to servatorship, with a one-time extension of a motion for new trial.5 combined with days upon proof based of “extraordi- nary Thus, circumstances”: section 263.401 deals with the dis-

(a) missal deadline while section Unless the court has rendered a fi- 263.405® may deals with what issues we consider granted nal order or an extension under appeal. (b), Monday Subsection on the first after anniversary

the first of the date the A. Dead- Section 263.401’s Dismissal temporary ap- court rendered a order Separation line and of Powers pointing department temporary the conservator, issue, Betty argues In that managing the court shall her first deadline affecting parent- legislative dismiss the suit the dismissal found relationship depart- separation child filed section 263.401 violates the requests powers provision ment that termination of thе of the Texas constitution judicial trial parent-child relationship requests interfering or with the courts’ 21, 2007, 263.405(b) (Vernon 2006) signed.” May Leg., § Supp. 3. See id. is Act of 80th R.S., 2, 6, §§ (providing intending ch. 2007 Tex. Sess. Law party appeal that a to (Vernon) (to codified as Serv. be termination must file a statement order an amendment of points for not later than the fifteenth Ann. Fam.Code 263.405(b)). § amended version is not order). day after the date of the final Effec- applicable to this case. tive for cases filed June after Legislature amended section 263.401(a). § requirement party intending add a that a 4. Tex Fam.Code Ann. request request a new trial “must file a not 2007). 263.405(i) (Vernon days Supp. later than 15 after the date a final order id. void; is judgment that the timing speed contending not power to determine But disposition Betty judgment of causes. failed is complaining she is that trial to raise this issue court. question erroneous the statute because prevented that imposes arbitrary deadlines complaint preserve To her for our her de- properly presenting her from Appellate review the Texas Rules of under Thus, Betty’s complaint does not fense.10 procedure, Betty presented must have un- challenge facial type involve timely request, objection, trial court may of a statute that constitutionality specific grounds or that states the motion appeal. first time on asserted ruling, grounds if the are the desired not from the context of the re apparent in her brief Betty concedes also motion, quest, objection, or and she must supplemental her nor her original neither implicit ruling have an explicit obtained a complaint statement of contained party trial court.6 If a fails to do constitutionality of section regarding the this, preserved, not com error is and the Betty never raised the 263.401. Because plaint waived.7 Even constitutional 263.401 in the constitutionality of section validity facial challenge to the of a statute court, cannot raise issue on she if apparently properly be waived Therefore, her first appeal.11 we overrule raised in the trial court.8 issue. Betty argues Separation of Powers Betty’s B. Denial of Trial Court’s Clause renders the dismissal statute void Deadline Motion Extend Dismissal so of her preservation first issue required. trial court was not But the of Error Preservation cases upon challenges she relies involved issue, Betty argues can her second void which be attacked judgments, any time, Betty denying not void statutes.9 that the trial court erred her (Tex.App.-Beaumont 13 S.W.3d Tex.R.App. 33.1(a). P. pet.) (holding judgment subject void Dean, Busheli v. time). to collateral attack at 1991) reh’g). (op. on contending judgment Betty 10. Nor is that the (Tex.2000) 8. In re Doe here is void statute. See v. based on a Rabb (holding challenge facial constitutional based State, 751, (Tex.Crim.App. 730 S.W.2d 752 on Separation properly of Powers Clause not 1987) appeal (holding where not voidness of statute on which considered on court); raised in trial R.B., 798, see In re 225 S.W.3d 802 be raised first conviction is based for 2007, pet.) (holding (Tex.App.-Fort State, Worth no appeal); time on see also Barnett challenge based on inval- constitutional facial 2006, 231, (Tex.App.-Fort Worth S.W.3d ' idity parental of statute in termination case excep- pet.) (discussing for Rabb no rationale court); not see waived when raised trial object general tion to rule that failure to B.L.D., 340, also re 113 S.W.3d 354-55 In any complaint appeal); 43A trial on waives (Tex.2003) (holding courts of must ah, Gеorge E. et Dix Texas Practice: Criminal preservation not retreat from error standards (2d §§ 42.253-54 ed. Procedure, & Practice parental rights unpreserved error in review 2001). cert, denied, cases), 541 U.S. termination (2004). 158 L.Ed.2d 371 S.Ct. K.A.S., (Tex. 11. See In re 131 S.W.3d denied) App.-Fort pet. (holding Worth Compare re Doe at 284 on attacks section because constitutional required (holding preservation of error court, statute) in the trial 263.401 were not raised complaint of void and Meshell v. State, (Tex.Crim.App. parent right to assert had waived the them 1987) violating sepa- (holding statute void as appeal). Nash, provision) powers with In re ration of 180-day motion for a extension the dis- because that issue was likewise not includ- missal original points. deadline because she showed ex- ed her statement of As noted, traordinary already Betty Betty’s circumstances. Unlike we have while did not 263.405(i)’s issue, challenge preserved first this issue was section constitution- ality in her appeal just original points, statement of pursuant once but twice “point” supplemen- she did list that in her by pretrial rule 33.1—first her tal points statement of and motion for new hearing motion for extension of the final trial.14 days by deadline and second her re-urging action in that motion before Nevertheless, supplemental because her

began ruling by she obtained a —and points statement of was not filed within trial court on both occasions.12 fifteen-day period required by section 263.405(b), Department argues New Section as Bar to bars us from even con- 263.405® Considering Betty’s Second Issue sidering Betty’s complaints about that sec- Nevertheless, Department con constitutionality. ability tion’s But our tends that section bars us from 263.405© points consider not filed in the trial court considering Betty’s second issue because days within fifteen did not even come into original she failed to list it in her state question until after the reached this points ment of days filed within fifteen court. judgment signed required after the Specifically, Betty’s complaint un- 263.405(b). by section brings This us to constitutionality of section under 263.405® Betty’s issue, in third which she contends Separation of Powers Clause raises that, to the extent section bars 263.405® question of whether that statute ‍‌​​​‌​‌​‌​‌‌​​‌‌‌‌‌​‌​​​​‌​​​​‌​​‌‌​‌‌‌​​​‌​​‌​​‍undu- our consideration of her issue on the mer ly interferes with this Court’s own its, Separation it violates the of Powers authority judicial to exercise its core Clause of the Texas constitution.13 functions. This issue could not have been matter, As threshold we must addressed the trial in- the first precluded determine whether we are pre- stance and thus need not have been considering Betty’s third issue challenging served the trial court to be raised constitutionality of section here.15 263.405® B.L.D., 33.1(a); points expiration P. TexJR.App. see In re additional after of the fif- 263.405(b). teen-day S.W.3d at 349. deadline of section But M.N., see In re Betty also contends that we should utilize App.-Eastland pet.) (holding issue suspend only rule 2 to waived that was contained in motion for requirement. disagree. fifteen-day P. 2. We Tex.R.App. new trial filed after deadline ex- terms, applies only Rule its own pired, though granted even trial court motion rules, suspend appellate not statutes. More- points). to time extend to file statement of over, provide the rule does for retroactive K.A.F., 923, suspension governing a 15.See In re 160 S.W.3d 928 of rule events that (Tex.) Garza, already (acknowledging have occurred. State v. constitutional issues re- See 560, provisions family governing lated to code (Tex.Crim.App.1996). 931 S.W.2d 563 appeals could not have in portion Betty’s Wе overrule that third been raised trial issue and, therefore, required contending may court were to be that rule 2 be used to sus- 263.405(f). preserve appeals in pend operation raised to error of section cert, court), by supreme de- for consideration nied, 961, 483, appears 14. No court to have considered 546 U.S. 126 S.Ct. 163 (2005); timely points whether a filed statement of L.Ed.2d 364 see also Mercer v. Phil- Co., 933, supplemented lips or amended to add Natural 746 S.W.2d 936 Gas

633 steps regard- and Betty preserved appellate properly postjudgment holdWe involuntarily terminating complaint that violates final orders ing her statute by raising intent of Separation rights.18 of Powers The stated parental Clause was, in her brief in this court. acceler- again, the issue to these amendments thereby “help process and appeal ate the History of a. Section to be the time that a child has to minimize distressing court subject lengthy to and Chapter family provides 263 of the code Specifically, hearings permanent proceedings.”19 for temporary and 263.405(b), 2001, in provides: added placement, conservatorship, and termi- parental rights involving in nation cases day than after Not later the 15th neglected and removed dependent children signed by a final order date from their homes and in foster care placed appeal the judge, party intending to 1997, legisla- Department. In file the trial court order must with chapter ture enacted to 263 amendments point points or statement delays spent reduce in foster time party appeal. which the intends to by a child awaiting care a final decision a mo- may be with statement combined rights proceeding parental terminate trial.20 tion for new one-year by imposing a limitation for a final order with the of a one- possibility and of our sister This court several 180-day time extension.16 appeals recognized courts have of section were purposes 2001, In additional passed frivolous in termination appeals eliminate to the family expedite amendments code to cases, reduce the costs associated hearing processes. both the and appeals de- appeals, such reduce provide Section 109.002 was amended to However, lays.21 other courts of we and that all termination “ac- appeals are to be to file a also held that failure governed procedures celerated” points complaint list a for an accelerated under the Texas deprive us Appellate the statement of does not Rules Procedure.17 Section jurisdiction 263.405 was amended over nor neces- require appeal22 additional 1988, 263.405(b); denied) re (Tex.App.-Austin (recogniz- § In writ 20. Tex Fam.Code Ann. D.R.L.M., 281, (Tex.App.-Fort ing general question 84 S.W.3d rule that constitutional 2002, denied). pet. Worth opportunity”). "must be raised at earliest 670, & n. In re Comm, 16. See House on Juvenile Justice 2006, (citing pet.) (Tex.App.-Fort Worth Tex. H.B. Family Issues, Analysis, Bill S.J.G., (Tex. In re S.W.3d (2001). Leg., R.S. 77th denied); In re App.-Fort pet. Worth M.G.D., (Tex.App.-Hous- S.W.3d (Vernon § 109.002 17. Tex Fam.Code Ann. denied)). pet. Dist.] [14th ton TexR.App. 2002); 26.1(b) (providing no- see P. twenty appeal must within tice of be filed & n. 12 re In days judgment signed an accelerat- after (cit- denied) pet. (Tex.App.-Fort Worth appeal). ed ing In re denied)); also App.-Fort pet. Worth see Id. S.J.G., (holding fail- 263.405. re 124 S.W.3d at 243 jurisdic- points not a ure to file statement of S.E., appeal); 203 S.W.3d Comm, 19. See bar to In re tional House Juvenile Justice on 2006, 14, pet.) (Tex.App.-San no Tеx. 15 Antonio Family Issues, Analysis, 2249, Bill H.B. (same). (2001). Leg., 77th R.S. 634

sarily appeal.23 Legislature of an that lishing expects waive review issue “the liti- 263.405(b)” Specifically, this court that fail- gants comply held such with Section ure not does constitute waiver when the because compliance as intended “would appellee prejudice, does not establish fol- trial, correct any wrongs days 30 after as lowing liberal approach adopted by opposed extending reversals months or supreme appellant court when an has re- years after trial.”27 quested only reporter’s a partial record Separation b. of Powers but has to file a failed statement of 34.6(c).24 required by appellate rule pass A court will not on the consti tutionality particular of a statute if the

Expressing disapproval its of this line of may upon case before it be decided inde seeming “effectively cases as repeal” pendent grounds.28 But sec alternative postjudgment statute’s effort to address 263.405(i) by tion its own terms bars us delay, enacted section considering Betty’s challeng issues 263.405(i), 2005, 1, in- September effective ing constitutionality of that section as structing any us that we not consider well as her second issue on merits presented issue not to the trial court because those issues were not listed her timely filed statement of points.25 The original points. Nor are we Bill Analysis House for that statute states liberty at to determine that unconsti interpreting cases tutionality “harmless” because the legislature’s goal have frustrated the says may Betty’s statute we not “consider” speed up postjudgment process second issue to determine whether she “bog[ging] [system] down the mis- prevail would be entitled to on the merits easily takеs” that could have been correct- preclude if the statute us from granting ed at the trial did level of a Therefore, Analysis reviewing complaint.29 new trial.26 Bill her we further directly states that section clarifies the are confronted with issue of 263.405(f).30 legislature’s by conclusively constitutionality intent estab- of section L, concurring) (quoting In re at 712. Comm, House on Juve- Family Issues, Analysis, nile Justice Bill 712, (discussing Id. at n. 13 Bennett v. 409, (2005)). Leg., 79th R.S. H.B. Cochran, 227, (Tex.2002), 96 S.W.3d re- jecting compliance strict with the rale when a Id. "rigid application” denying would result in merits, though appel- review on the even Windham, 28. State v. 837 S.W.2d n. prejudice); lee has not demonstrated In re (Tex.1992). B.T., 200, (Tex.App.-Fort 154 S.W.3d 2004, pet.); Dep't Worth no see also Wall v. Tex.R.App. 44.1(a) Servs., 29. See (defining P. harmful Family (Tex.App.-Aus- 173 S.W.3d 178 S.P., 197, pet.); tin re probably no 168 S.W.3d error in civil cases as error (Tex.App.-Dallas pet.); 201-02 no In re improper judgment resulted in an or that T.A.C.W., (Tex.App.-San 143 S.W.3d prop- “probably prevented appellant from M.G.D., pet.); Antonio no In re presenting ap- erly the case in the court of 516; K.M., S.W.3d at In re No. 07-04-0442- peals”). CV, *2, WL 2004 WL Dec.8, 2004, (Tex.App.-Amarillo no Accord, S.K.A., In re pet.). filed) (Tex.App.-Texarkana pet. (holding necessary pro- due to address constitutional 25. Tex. Fam.Code Ann. 263.405(i). 263.405(i), complaint as to section which cess E.A.R., prevent address- would otherwise court from 26. See In re (Vance, appeal). (Tex.App.-Waco pet.) ing might dispositive & n. 2 issues

635 herein others, in the instances except presumption with the We start permitted.34 expressly comply intended to constitut States and Texas with the United Powers of Separation The interpret we must possible, If ions.31 (1) of when one branch violated Clause is it constit in a manner that renders statute properly more assumes government admonitions, Mindful of these utional.32 (2) when to another branch attached question of whether section turn to the we another unduly interferes with one branch unconstitutional as violation effectively the other cannot so that branch Since of Powers Clause. Separation of the constitutionally assigned powe exercise its enactment, several courts its gov by one branch Any attempt rs.35 application questioned practical have unduly pow to interfere ernment statute, we constitutionality of the but null and void.36 As stated another is ers of its no that has addressed are aware of case subject by this case on in a landmark constitutionality Separation under the of Texas: Supreme Court Powers Clause.33 believed powers separation The Blackstone, I II of the constitu- of article Section by Montesquieu, provides: tion makers of American Constitution of the chief century to be one eighteenth of the powers The Government characteristics of admirable and most into of Texas shall be divided State English Constitution. departments, each of three distinct very foundation principle A which is separate be confided to a which shall of the United States government which of the body magistracy, to-wit: Those one; states must be are and of the several Legislative to those which are preservation essential to the another, which deemed one Executive to and those and should another; people, of the person, and no and liberties are Judicial to faithfully observed thoughtfully one of persons, being or collection of powers govern- by all clothed with departments, these shall exercise ment.37 power properly attached to either (Vernon h.) (holding ap- (op. reh’g) statute as pet. 311.021 31. Tex Gov’t Code Ann. B.L.D., pro- 2005); her due plied indigent mother violated In re 113 S.W.3d at 352. S.K.A., at 894 rights); In re 236 S.W.3d cess (same). 56, Gutierrez, v. S.W.3d 66 32. See Walker 111 (Tex.2003); League Intergovernmen- Tex.Mun. Const, II, § Comm’n, Comp. art. v. Tex. 34. Tex tal Risk Pool Workers' 377, (Tex.2002). possible, 74 381 If S.W.3d State, v. 802 Bail Bonds legislative 35. See Armadillo "interpret enactments in man- we 237, (Tex.Crim.App.1990)(adopt- 239 Bar- S.W.2d avoid constitutional infirmities.” ner to State, test); v. ing Rose undue interference County Underground shop Water v. Medina (Tex.Crim.App.1987) Dist., (Tex. 535 752 S.W.2d S.W.2d Conservation Meshell, (same); (same); S.W.2d at 252 1996). Giles, parte Ex (analyzing assumption of Crim.App.1973) T.R.F., S.W.3d 33. See In re to another properly attached power more filed) (collecting (Tex.App.-Waco pet. branch). expressing process as to due concerns cases However, 263.405(i)). two courts Giles, S.W.2d at 780. parte Ex 263.405(0 violates due have now held section pre- process applied to the circumstances Miller, D.M., Langever 124 Tex. In re those cases. See sented (1934). 1824 constitutions (Tex.App.-Waco 6(a) judicial power V, The is vested in the Article section of the con grants stitution also courts appeals of and, courts by created the constitution as “original jurisdiction, or under provided Separation in of Powers regulations such may restrictions as Clause, subject change by is not prescribed Thus, be by juris law.” our legislature in the “except instances herein appeal may diction over an arise from V, expressly permitted.”38 Article (1) either the general grant, constitutional 1 of the Texas constitution vests “[t]he (2) or specific statutory grant jurisdic of judicial power this State ... in of one tion may prescribed by legislat as be Court, Supreme in one Court of Criminal ure.42 Appeals, in Appeals, Courts of in Distriсt argues Department first Courts ... such other and in courts as jurisdiction our in termination cases is V, may provided be law.39 Article sec- purely statutory and constitutional be 6(a) tion expressly the constitution appeal in right cause the a termination grants appeals appellate ju- the courts of granted by suit expressly Texas is risdiction with the co-extensive limits of Thus, family the Department code.43 con their respective jurisdictions, which shall tends, may place the legislature such re extend to “all of which the cases District right appeal strictions on the as it Courts or County original have or Courts chooses. disagree.44 We appellate jurisdiction, under such restric- judicial power Our is conferred may tions and as regulations prescribed jurisdic- constitution.45 constitutional Our Provided, law. the decision of said tion appeals extends to all cases of questions courts shall be on all conclusive original ju- which the district courts have of fact brought appeal them on before risdiction, includes which termination Appeals error.”40 cases46 in termination cases have right grant both Mexico and the State of Coahuila and silent as to of further language, appeals). Texas contained as did courts of similar Republic constitution of Texas. Harold 109.002(a) § (pro- 43. See Tex Fam.Code Ann. Bruff, Separation H. Powers Under the Tex- viding appeals from final orders in termi- Constitution, 68 Tex. L.Rev. general- nation "as in civil cases suits shall be (1990). & nn. E.A.R., ly”); see abo In re 201 S.W.3d at 815 J., (Vance, concurring). V, § Const, 1(1). 38. Tex. art. E.A.R., (Vance, In re 201 S.W.3d at 815 Cf. words, J., Id. In other Texas constitution concurring) (stating “right appeal” grants ability statutory, also to estab- termination cases is not constitu- tional). lish “such as it deem other courts neces- sary prescribe jurisdiction оrgan- Tune, (stating 45. See at 360 consti- ization thereof....” Id. grants appeals general juris- tution courts V, specified diction over all in art. cases V, 6(a). § 40. Tex art. Const, 6); Dean, Texas, § Rule-Making in see abo (1988). L.J. Mary's St. Id. V, 6, general § 46. See and the art. Const, Tex. Safety, Dep’t enabling legislation, 42. Tune v. Pub. Tex. Gov’t Code ann. 22.220(a) (Vernon 2004) ("Each (Tex.2000) (jurisdiction vested court of general appellate jurisdiction appeals by court of has of all civil virtue constitu- statute, grant granting appeal tional cases of which the where within its district district handgun justice jurisdiction county from denial license to courts or courts have law, county controversy judg- court and then to court at when the amount in or the pow- is the family legislature’s 109.002 of the lute. But neither long predated section Fami- predecessor code and its statutes.47 regulate appellate er to and the restrict 109.002(a) merely ly recog- code jurisdiction Specifical- courts’ unlimited.50 existing jurisdiction in appellate our nizes functioning the of the ly; is when “[i]t [ ] cases, i.e., termination “as in civil cases constitutionally in a judicial field process generally.”48 courts to the control of the is committed Department posits The next that the by legisla- the with executive interfered legislature power still retains the to im- problem tive branches that constitutional pose regulations on restrictions and our recently acknowledged that arises.”51 We jurisdiction, by which it has done may regulate legislature the restrict and so, enacting section This is the 268.405®. jurisdiction appeals our over constitutional argues, Department because our constitu- terminating rights.52 parental from orders jurisdiction subject granted tional ex- pointed But same we out paragraph, the prеssly regula- to “such restrictions that cannot legislature interfere may be law.”49 prescribed tions constitutionally granted powers our contends, Thus, juris- our Department subject do be null attempt is not to so would diction absolute but legislature. limitation legislature plainly may The void.53 pow- not interfere with functions and agree We that our constitu judicial usurp ers of branch so as to jurisdiction tionally granted is not abso- V, $100, 6(a). § ment rendered in- art. exceeds exclusive of Const, 49. Tex costs.”); & terest and Tex Civ. Prac. Rem.Code (Vernon 1997) (same). 192, § McMurray, Tex. 51.012 50. See Harbison v. 138 284, (1942) (appellate juris- 158 287 S.W.2d See, subject by legislature diction to control but e.g., Spratlan, 47. Pattison 539 v. S.W.2d cert, limitations”); denied, 1001, only (Tex.), "within constitutional 60 429 U.S. 97 S.Ct. 80, Langever, 531, Brooks, Tex. (1976); 124 76 S.W.2d 1029 v. 50 L.Ed.2d 612 DéWitt cert, (legislature 122, "pass such laws as (1944), authorized 182 143 Tex. S.W.2d 687 necessary denied, 1196, may carry effect 862, into 325 U.S. S.Ct. 65 89 L.Ed. Constitution,” subject provisions this (1945); of see 1983 also former Tex Fam.Code legislature’s powers own 11.19(a), limitations on Leg., § Act May of 63rd constitution). R.S., 11.19(a), in the contained elsewhere § 1973 Tex. Gen. 1419- Laws (stating appeals affecting parent- 20 in suit 83, Betts, relationship v. Tex. "in 51. State Bd. Ins. 158 308 child shall be as civil cases 846, (1958) added). ”), 6, (emphasis 851 generally repealed April ... Act of R.S., 20, 2, Leg., § 74th ch. 1995 Tex. M.R.J.M., Gen. Laws 282. In 193 n. re S.W.3d at Mathew, (citing v. 178 S.W.3d Sultan McCallum, (Tex.2005)); see also Seale v. Craft, v. Craft (1926) (holding 1979) 287 S.W. (stating provisions Civ.App.-Dallas legislature power jurisdiction allowing had limit subsection from an order en- code, primary courts election con- chapter family tered under 15 of former Tune, tests); (holding legis- 23 S.W.3d at 362 parent-child governing termination of re- jurisdiction appeals’ lature courts of limited lationship, provisions "like many other Code, controversy ”) to causes in which amount in previously declare the law as existed $100); added), n.r.e., Covington, Maddоx 87 Tex. exceeds 454, (emphasis writ d ref (1895) (holding legisla- (Tex.1979). 29 S.W. And final orders “would be power ture its acted within constitutional anyway [gener- appealable under article 2249 limiting jurisdiction supreme court under enabling legislation].” (emphasis Id. add- al V, 3). language of art. ed); identical Commentary Const, McKnight, also see Tex Code, Family 5 Tex. Tech. L.Rev. Texas 281, Title M.R.J.M., (1974). n. 193 S.W.3d at re those powers.54 judicial functions and implicate the doctrine separation of powers.57 Department also asserts All but upon by one of the cases relied permissible that section ais re Department merely questions involved judicial power, striction on our relying of statutory construction of language of upon holding cases limiting right statutes appeal; may only restrict or limit but even none separation of those cases was the deny altogether the right appeal. But powers doctrine raised.58 The last case already Texas provides right the of appeal Department, relied on the Rushing v. judgment from a terminating parental State, distinguishable.59 is also The court rights.55 appellate Where court review is of criminal in appeals held that that case permitted, the appeal avenues for must be claim in question merely “par- the a kept free of unreasonable restrictions that jurisdictional ticular kind of legis- claim of power hinder the exercise of our of appel juvenile lative creation” under the court Moreover, late review.56 restricting the system that legis- had been created individual right appeal litigant of a is lature, legislature so that of retained restricting judicial same as our power prescribe requirement for power. process prevents ‍‌​​​‌​‌​‌​‌‌​​‌‌‌‌‌​‌​​​​‌​​​​‌​​‌‌​‌‌‌​​​‌​​‌​​‍While duе undue preservation of error as to the claim with- parents restriction on in exercising their violating Separation out of Powers right appeal, it is restrictions on our The Clause.60 court also based its hold- State, Putnam, rogation); Williams v. 707 Dillingham S.W.2d v. 109 Tex. Crim.App.1986) (holding (1890). statute unconstitu- 14 S.W. required ninety-five percent tional that remit- titur of amount of bond if defendant was Department's 58. Three of the cases involved produced years judgment, within two after only interpreting question the statutes in altering nullifying judgment thus or final ren- Sultan, appellate jurisdiction. limited See court); Harbison, dered a see also 138 Tex. (interpreting at S.W.3d statute de- 287; Langever, 158 S.W.2d at 124 Tex. claring judgment county court de on novo 80, 76 S.W.2d at 1029. "final”); appeal from small claims court Tune, (interpreting 23 S.W.3d at 361 statute M.S., (Tex.2003) 55. In re establishing controversy minimum amount in court); Seale, (noting already provides right appeal Texas county 116 Tex. appeal judgment involving parental (holding from a declaring 287 S.W. at 47 statute termination, rights citing family judgment primary code section of district court in election 109.002). “final,” precluding appeal). contest to be A statutory fourth case dealt with the limitation jurisdiction that, appeals of courts of civil 56. Id. is now fundamental "[I]t once cases,” established, “civil which is also contained in the appellate [avenues of review] Harbison, constitution. 138 Tex. kept must be free of unreasoned distinctions S.W.2d only impede open equal that can access (quoting to the courts.” Id. at 547 M.L.B. v. S.L.J., 555, 561, 519 U.S. 117 S.Ct. (Tex.Crim.App. 59. 85 S.W.3d (1996)). 136 L.Ed.2d 473 2002). has, however, supreme 57. The also held 60. Id. The court thus avoided the issue of right appeal protected by unduly that the whether the had interfered constitution, open provision powers courts appellate arti- with the of the courts. The I, Hosp. cle appeals Rushing section 13. Doctors Facilities court of in had held that the Appeals, Separation Court statute violated the of Powers Fifth (Tex.1988) (recognizing right by denying of access to an Clause a court of appellate right pro- power tribunal is substantial had to review whether the trial court against arbitrary jurisdiction, tected and unreasonable ab- which it characterized as an days after the final filed fifteen ing, part, precedent in on its own (b) procedure signed. Nothing rules of could not either appellate order was filing statutes in criminal cases.61 But trump timely suggests © rights are not parental terminations of to be points listing all of issues And, previous- have criminal cases. we bring will an issue listed raised on noted, and the ly both district courts’ before that statement power parental termi- appellate courts’ appellant must still prospective court. A rather than nation suits is constitutional complied with all timely properly have statutory.62 And, finally, neither section procedure governing rules of applicable (i) preservation nor error com- preservation of error order Rushing. like statute the statute in appeal. Con- plaints to be considered neither trary Department’s position, Department argues that section 263.405©) pro- “creates a nor with the “ap- does not interfere © 263.405© an litigants bring must follow to cess which discretion or rule pellate [c]ourt’s they [appellate c]ourt.” issue before properly on issues once are before merely process the court. It creates a ap- to be before the properly order litigants bring which must follow to an court, any have pellate complaints must agree that [с]ourt.” issue before We at- timely called the trial court’s been proce- as a section intended 263.405® (including during tention or trial before rule.63 But this is the end of our dural not dire, complaints pleadings, related to voir inquiry. errors, evidence, charge or admissibility of Nothing in section suggests 263.405® jury argument), they or must be improper that legislature by that the intended stat- timely mo- postjudgment listed in a filed points ute to substitute statement of rendition) (for seeking complaints tion proce- civil appellate rules of and (for complaints in a for new trial motion preserve dure order error cases such as factual insufficien- seeking remand involving involuntary paren- termination of and cy jury findings to support evidence rights. suggest tal No one that would complaints pro- require evidence to Betty preserved regard- could have error hearing).64 duced at the new trial ing her an complaint of denial of exten- one-year appellate The rules of civil and sion of the dismissal deadline only procedure after in a have the force and effect listing it statement cases, integrity making power in unlike civil "area of criminal minimum functional State, fully Rushing power S.W.3d courts.” which has been cases in such 2001) (Tex.App.-Waco (quoting court). supreme conferred Bonds, 240-41). Armadillo Bail 802 S.W.2d at S.J.G., In In re we held that 63. Id. 263.405(b)’s requirement appellant that an than not later must file statement State, (citing See id. at 286 Marin v. procedural days judgment and after fifteen (Tex.Crim.App.1993)); see When jurisdictional. not 22.008; also Tex Code Ann. TexCode Gov't legislature added section thereafter (providing 44.33 court of crim- Crim. Proc. art. 263.405(1) directing appeals not to courts appeals posttrial inal shall make and rules timely in a filed issues not listed consider appellate procedure actions as to criminal points, lan- it did not alter the code”); “not with this see also inconsistent 263.405(b). guage of section McConnico, Pope & Civil Procedure Texas Making, 5 at 10-11 & n. Baylor Rule L.Rev. Tbx.R.App. (1978) P. 33.1. (noting legislature 324(a); TexR. Civ. P. retained rule See binding supreme statutes and as court de- tution to the extent it forecloses our Accordingly, power cisions.65 properly preserved we must to review issues continue rules; appeal statute unduly to observe those because the in- and follow we have power terferes with our substantive as an authority to from them.66 deviate Un- appellate court and to rehear determine 47.1, appellate der rule court of issues on the merits that were decided in must hand opinion down a written the court below.69 “every addresses issue raised and neces- sary” disposition to the final of an appeal.67 legislature may not “infringe Therefore, 33.1, pursuant appellate rule the substantive upon of the Judicial we must address decide the merits of department guise of establishing under the Betty’s properly second issue because she court,’ rendering ‘rules of thus the separa preserved it for her motion for tion powers meaningless.”70 doctrine extension of the dismissal deadline that period Even in the before Rule Making timely presented she re-urged then Act of procedure 1939 when rules of were prior to trial.68 prescribed by statute,71 supreme prohibits

Section us from con- [may] held that regulate “[t]he 263.405© sidering Betty’s second issue even though procedure by jurisdiction which con it was properly preserved. But for the ferred the constitution be exer below, reasons stated we hold that section cised ... procedure courts, is void because it substantially violates the but [may] im 263.405© Separation pair jurisdiction of Powers Clause of granted the consti- the constitutional City Georgetown, 22.004(a) government See In re 53 S.W.3d the 71.Section code 328, (Tex.2001); 332 & n. 2 Mo. Pac. R.R. Co. supreme rulemaking vests the with full court Cross, 868, (Tex.1973); v. cases, 501 S.W.2d 872 authority subject in civil to the limita- Freeman, 148, Freeman v. 160 Tex. 327 abridge, tion that enlarge, the rules not 428, (1959). S.W.2d 433 modify rights litigant. the substantive of a 22.004(a) (Vernon § See Tex. Gov’t Code Ann. Inst, Research, 66. N.N. v. Rehab. & 234 2007). Supp. Such rules shall remain in ef- 1, (Tex.App.-Houston S.W.3d 6 [1st Dist.] disapproved by legislature.” fect “unless the 2006, h.); pet. see Sherrill v. Estate of Dean, Texas, Rule-Making Id. But see in 20 286, Plumley, (Tex.Civ.App.- 287 LJ. n. 161 nn. at 141 Mary’s St. n.r.e.) Houston [1st writ ref'd Dist.] (noting legislature power never exercised has (holding court-promulgated rules have force disapproval). 31 of article V of the Section supreme opinions); and effect of court Beach constitution, Runnels, (Tex.Civ. like former section limits the v. 686 S.W.2d ref’d). supreme App.-Dallas power promulgate court’s rules writ "not inconsistent the laws of the state.” P. 47.1. Tex.R.App. art. V This has been inter- Const, Tex. that, preted to mean the event a in of conflict 68. See P. 33.1. Tex.R.App. rule, pre- between a statute and a the statute Corbin, adopted 69. See v. subsequent Morrow vails the unless rule was (1933) State, (defining appellate S.W.2d to the statute. v. Johnstone S.W.3d judicial power power authority as "the (Tex.2000); Few v. Charter Oak Fire superior conferred on a court to rehear and Co., (Tex.1971) Ins. is, determine—that to review—causes which (construing language in identical former arti- courts.”) have (emphasis been tried in inferior V, 25). assuming cle Even there a added). here, conflict we need to determine do not its effect the because we hold statute is void. Meshell, (emphasis at 255 add- ed). trial, a dis- only guaranteed case but practically defeat its exercise.”72 nor prose- if there missal the defendant State, In v. the of criminal Meshell court In in for trial. so delay preparing cutorial the was faced with ver- appeals whether concluded, legislature the doing, the court in the Trial then effect Speedy sion of Act prosecutori- upon encroached the exclusive powers the substantive upon encroached attorney and county al discretion the judicial in the Sepa- branch violation of Separation of Powers thereby violated the by ration of Powers Clause or whether Clause.77 legislature Act legitimately pro- State, crimi- statutory procedural guide a rule to court of vided Williams legisla- nal right.73 appeals of a focused on enforcement substantive effect judicial power.78 Act The court held the unconstitutional tive encroachment on a requiring a statute imposing a deadline on for trial The court held that readiness judg- county attorneys, ninety-five percent remittitur of a members branch, statutory require- if judicial although purport- forfeiting the Act ment bond years after only procedural guideline a ments met two ed to establish were within effect, of a right judgment, was a modification for enforcement of defendant’s sepa- speedy judgment trial.74 final and thus violated the powers provision ration because focused, analysis The court’s Meshell usurped judicial branch’s function and first, legislative on the nature of the action judgments.79 final In Arma- power over and, second, complained of on whether State, dillo Bail Bonds v. the court that action encroached on the criminal considered similar stat- judicial branch.75 The first identified legislature apparently ute enacted right in- the substantive attempt holding in an to circumvent tended to enforce imposing procedural Williams, limiting authority a trial court’s i.e., trial, guidelines, right speedy ato judgment eighteen a final until enter that, from plain language, but observed its after a forfeiture was entered.80 months only the Act was directed expediting prosecutor’s preparation The in Bail Bonds ob- and readiness court Armadillo trial, at expediting judicial not certain functions are so actual commence- served that may ment of trial.76 The court concluded the alone deter- fundamental courts to accomplish Act thus did not the stated mine and those functions are when how objective, court concluded that incidentally, speeding even of a be exercised.81 The (“[T]he Langever, Legislature power 72. 124 Tex. 79. has to 1029. Id. judgment rendered the court alter a final Otherwise, power a of in bond forfeiture. the 73. 739 S.W.2d at 254-55. judicial mockery, the branch would be a sub- Legislature. ject whim The to the Id. 74. judgments and finality would not exist forums.”). Legislative be courts would brief, Contrary Department's 75. to the the county attorney Meshell considered court (also applying 80. at 239 former branch, part judicial not executive. V, Texas article section 25 of the constitution 253. Id. at granting rulemaking power to the su- both preme legislature). court and the Id. at 256. Anthony (quoting at A. Leo Levin & Id. Amsterdam, Id. Legislative Judi- G. Control Over Rule-Making: cial A in Constitution- Problem Revision, (1958)). al 78. 707 S.W.2d at 107 U. Pa. L.Rev. judicial there must remain some realm of to own opportunity correct its errors “activity so fundamental in trial, thereby and so inherent a granting new minimizing very its nature as a court that divest it to postjudgment appellate dеlays. and We of its absolute command within these legislature’s post- share the concern with spheres very to make meaningless is delays and judgment appellate as well as phrase judicial power.”82 Looking deci- its desire reduce the time children re- states, sions of other found a court from parents spend moved their must in opinion consensus of it which —with foster care. We also its concern share agreed when and how cases shall be —that eliminating with and frivolous re- decided legisla- not dictated costs, purposes duction two stated other solely judicial ture but are matters for the 263.405(b) of section requiring state- government.83 branch of points. ment of The Armadillo Bail court Bonds But section directed at 253.405® reasoned as follows: the statute would incidentally. Instead, goals, those even it compel the to refrain from ex simply is directed at prohibiting exercise ercising i.e., part power,” its “core appellate of our power to review issues. entry judgment, of final year for a and a expediting than postjudgment Rather half; valid, requirement and if that were appellate process cutting and down on prohibits then “nothing legislature delay, merely guarantees the Depart- delay from an imposing interminable ment an errors affirmance of all not listed short, obtaining judgment.”84 if final points, regardless in a valid, the statute were then the merit. consequence sections would have the the Judi “render 263.405(b) (i) that, if together com- ciary impotent respect entry plaints timely are not listed in filed therefore, final judgments;” statute points, statement of meritorious com- even unduly judiciary’s interfered with the ef plaints timely properly pre- otherwise fective constitutionally-as exercise its served under the rules are for- signed power and was invalid as viola review. appellate ever barred tion of the Separation Powers Clause.85 Moreover, neither section nor analysis We apply first the Meshell (i) 263.405(i). seen, expedites postjudgment appellate As we have process; family and the section was added an enforce rules effort to requirement already provide the of a an timely statement of code for accelerated points give appeal order the trial court an process judgments terminating for 241; Williams, original). 82. Id. at see also State (emphasis v. 84. 802 S.W.2d at 241 (Tex.Crim.App.1997) (citing both Meshell and Armadillo Bail Bonds Id.; Williams, see also S.W.2d at considering validity legislatively the of a en- may judicial pow- the Nor exercise procedural acted rule under current section guise ers under the of its retained constitution). 31 of article V the of jurisdiction. regulate and restrict the courts’ Langever, (noting legisla- 76 S.W.2d at 1036 Bonds, 83. Armadillo Bail at S.W.2d. ture not set aside the construction of a Omholt, (quoting Coate ‍‌​​​‌​‌​‌​‌‌​​‌‌‌‌‌​‌​​​​‌​​​​‌​​‌‌​‌‌‌​​​‌​​‌​​‍203 Mont. cases, already applied by law to actual courts (1983), citing P.2d 591 and A. Levin & Leo compel adopt particular courts to a construc- Amsterdam, Anthony Legislative G. Control law, judgments, set aside or tion of alter nor Rule-Making, Over Judicial 107 U. Pa. L.Rev. trials). compel grant courts to new 31-32). at provides in the filing Nothing statute rights.86 fifteen-day appeal. The parental of points filing of neither a statement any guarantee deadline for statement any for expedites any timetable a trial to be accelerates nor will court points cause necessary postjudgment grant motions or for its or likely correct errors more steps for the termination appeal. Because the require- trial as to eliminate a new so judgment, appealing order is a final when error is appeal for an than ment thirty of party days still has under rule trial presented timely properly and for procedure civil 329b to file motion procedure. to the rules of pursuant court trial, days additional fifteen after new an in the trial court points If a points The the statement is due.87 errors, our to obtain correction sufficed filing for mo- postjudgment times other as contem- appellate as an court existence perfecting appeal tions an still and for would ren- by the constitution plated begin signing with the of the final termi- totally unnecessary. dered order, appellate nation and the accelerated Thus, a dupli- creates begins still to run from the date timetable and procedural cative hurdle over above signed, final is the notice of order procedural long-established rules appeal twenty days still due after the or- error; yet compliance with preservation of and signed,88 reporter’s der record preserve not error that statute does sixty days still clerk’s record due after merely adds addition- appeal. The statute filed,89 appellate notice of and the delay reducing and instead of al cost briefing twenty beginning schedule still (i) ultimately precludes our while section days thereafter.90 otherwise been review of claims have Bill Analysis The House for section in affirmance preserved, resulting properly 263.405(i) section, also states that the new as well appeals in otherwise meritorious by prohibiting courts of from con- frivolous ones. sidering issues included the state- civil existing civil and Our of points, accomplishes purpose ment promul- designed procedural schemes allowing the trial “to correct court already carry supreme court gated thirty days errors within after trial legislature. goals trial, out the stated grant thereby avoiding lengthy a new delay, they rules minimize existing appeals.”91 But new section every bring must com- parties assure thing.92 Making does no such the state- to the attention of the trial mandatory upon plaint error pain ment manner, they provide judg- timely in a waiver does not ensure errorless every necessity ample opportunity ments for an the trial court nor eliminate 26.1(b); P. Family 91. House Comm. TexR.App. Ann. On Juvenile Justice Tex Fam.Code 263.405(a). Leg., 79th Analysis, Issues, Bill H.B. (2005). R.S. 329b(a). P. 87. TexR. Civ. points” We note that "statement TexR.App. 26.1(b) P. is required to be filed section motion, request, pleading or seek- not a other 263.405(f) (altering 89. Tex Fam.Code Ann. Although ing any court. relief from trial be to ten time record would otherwise due 263.405(b) requires that the statement days appeal is filed as stated after notice court, presented points the trial 35.1(b)). P. TexR.App. hearing ruling by for a or a provision made TexR.App. court. 38.6(a). that P. step of proceedings the trial to cure its error rules that require presentation of a own errors grant and new trials when motion, objection, or request to and a rul- needed, so as to eliminate unnecessary ap- ing by court, the trial there is no require- peals. they But also allow meritorious ment that the trial court even rule on the claims to be reviewed and corrected on points. statement of appeal.93 Third, appellate interpret courts ap- and Why is the statutory mandate —that an ply the procedure rules of promulgated by issue cannot be appeal considered on if not supreme liberally so as to resolve listed in a timely filed statement issues on the merits whenever possible.94 points preservation of er- —different contrast, clearly prohibit- the statute requirements ror imposed by the rules of ing appellate courts from considering any civil appellate procedure? all, and After issue not listed in a points, statement of statute, doesn’t rules, like provide appellate courts deprived are dis- appellate courts cannot consider is- cretion to allow consideration of issues properly sues not timely and raised even when literal application of the terms Yes, trial court? but significant there are of the statute defeats the aim of resolving First, differences. already as discussed appeals on the Finally, merits.95 as the above, a statement of points does not pre- supreme out, pointed court has while the serve error appeal, for preservation unlike appellate civil and promulgated by rules of error rules. The statement of only that court place serves a do purpose upon in the trial restrictions court to allow it right to consider appellate tribunal, whether issues access to an are Second, frivolous. preservation unlike those restrictions provide “serve to a more See, e.g., (requiring Tex.R. Civ. P. 324 bringing scribed for appel- a case before the prerequisite appeal courts); point in a motion for Employer's late Ins. v. Ass’n Ev- ans, 113, 123, new trial complaints); for certain 117 Tex. 298 S.W. TexR.App. 33.1(a) P. (requiring timely request, (1927) ("The objection, procedure office of a rule of is to motion, facilitate, exрlicit or implicit ruling hinder, and rather speedy than and court); 103(a)(1) (requiring final way determination all lawsuits in that Tex.R. Evid. preservation of error as to admission or ex- litigants which will secure to their substantial by “timely” clusion of objection evidence rights....”). proof an offer of as to evidence claimed to be excluded). Easy Country, 95.See Michiana wrongfully Livin’ Inc. v. Numerous other rules Holten, (Tex.2005) (reit- procedure require of civil objection appro- trial, erating appellate priate stages designed that the "are pretrial, rules posttrial and appeals to resolve proceedings on the and we preserve merits must in order to error for interpret apply appeal, possible them including whenever pleadings, objec- defects in Bennett, aim”); to achieve that discovery, challenges tions to written S.W.3d at (same); Domer, cause, Verburgt 229-30 objections requests jury as to (Tex.1997) (noting S.W.2d charge "policy charge, and omissions from directed appellate embodied in our rules disfavors judgment verdicts and motions for n.o.v. for disposing appeals procedural legal on harmless insufficiency, types and the of error for holding defects” and courts of which must required motions for new trial are See, liberally preserve right construe rules so e.g., error. Tex.R. Civ. P. 193.2, 229, 268, 274, appeal “by imposing requirements 324(a). not lost absolutely necessary purpose to effect the Labs., Inc., rule”); Exch., 94. Smirl v. Globe Gallagher 144 Tex. of a v. Fire Ins. (1945) S.W.2d (distinguishing pro- (Tex.1997) rules (reiterating mulgated by supreme ensuring court from former stat- "commitment to that courts do not utes, stating a unfairly court "in its apply discretion” need proce- rules of not in all cases dismiss an for failure addressing party’s dure to avoid meritorious comply claim”). to pre- observe and with the rules for power” a reserved judicial system.”96 ercise “core efficient orderly and only by telling how by well articulated our us not judicial For the reasons so branch courts, to how are unable see before us brought sister we must rule on issues we (i) 268.405(b) provide a or sections serve at those issues cannot consider but we orderly judicial system.97 more efficient is, section We hold that all.98 263.405® Thus, analysis, Meshell section under the therefore, separa- of the as a violation void 263.405(i) goals is not directed at Texas con- powers provision of tion Instead, legislature accomplish. seeks to third issue Betty’s We sustain stitution.99 Department merely guarantees that the part. in appel- of our by blocking wins the exercise Meshell, un- judicial late function. As motion to of denial of 3. Review procedural a guise establishing of der the deadline extend dismissal question, legisla- rule the statute unduly with our sub- ture has interfered void, we are Because section 263.405® appellate powers. stantive from consider- barred that statute not in a not listed state- ing points that were by utilizing This conclusion is reinforced long they prop- so were approach. points Sec- ment the Armadillo Bail Bonds Thus, our for erly preserved tion interferes with review. 263.405® determining discretion in whether exercise are able to turn the merits we now not in a statement issue, to consider issues listed the trial Betty’s whether second points, prejudice even in absence of by denying her motion to ex- court erred our Department. The statute bars under section deadline tend dismissal even consideration of all issues listed 263.401(b). they properly preserved

when were In procedure. review under the rules of background a. Factual effect, legislature decides for us 4, 2005, response 9-1-1 On June in a complaints timely not listed eleven-month-old T.W. Betty, call made doing, In are waived. so section 263.405(i) to the Children’s Medical upon ability to ex- was taken Cook infringes our J., (Quinn, 2007, h.) Facilities, pet. App.-Amarillo no Hasp. 750 S.W.2d at Doctors (same). concurring) Bonds, See, M.N., S.W.2d at e.g„ In See Armadillo Bail re 230 S.W.3d ("[W]hen filed) shall be decided and (Tex.App.-Eastland pet. (question- cases they be decided is ing process implications of manner in which shall due section R.J.S., 263.405(i)); solely judicial gov- for the bianch of see In re matter also added)); (emphasis also A. Leo (Tex.App.-Dallas pet. de- ernment.” see Amsterdam, nied) Legislative 263.405(b) Anthony (noting "trap G. Levin & D.M., Rule-Making, Judicial unwary”); Control Over In re Pa. h.) (collecting holding that cases pet. L.Rev. at 31-32 (Tex.App.-Waco, n. J., (Vance, that moves so far into realm (collecting statute dissenting) decisions judge judicial activity how “as to dictate to appeals questioning due seven other courts of clearly judge ... offends the constitu- he shall process implications of sections separation powers and R.M., 04-07-00048-CV, tional scheme (i)); re No. added). invalid”) (emphasis will be held -S.W.3d-,-, WL Antonio, (Tex.App.-San July pet. *1 Betty’s denied) third practical we conclude (questioning effects and con- 99. Because part, we need not implications be sustained issue should stitutional of section complaining vio- scope fourth issue of stat- consider her urging to revisit ute); R.C., process. 47.1. See P. lation of due In re Tex.R.App. room, emergency Betty Center and unconscious told Detective Ezelle at least two inju- suffering concerning head different stories T.W.’s severe trauma. A CT up ries. She first said that T.W. woke scan reveаled a parietal T.W. had suffered vomiting, the middle of the night, and that skull fracture with epidural subdural and injured she did not realize Stevie had T.W. Haddock, bleeding. Dr. Tom who saw Betty up later said that T.W. woke around room, emergency T.W. testified that 2:00 a.m. and began vomiting around 3:00 injuries her were consistent with her head or 4:00 a.m. She said also Stevie hit T.W. having against been slammed a ob- hard belt, put and when he her back on a ject, bleeding and the amount of indicated floor, pallet on the her head hit wall extreme force had Dr. been used. Had- than once. more When Detective Ezelle dock also testified that he observed house, Betty’s he found an visited indenta- stripes right linear scabbed-over on T.W.’s pallet. tion the wall above forearm, having consistent with her been termination hearing, At the time of the rope struck with a or wire. had T.W. also T.W., old, twenty-three then months had linear striping bruising and to her upper just begun walking with assistance of back. was pediatric T.W. admitted to the ataxia, braces on legs. both T.W. suffers intensive care unit and remained there sys- parts which affects the of the nervous almost a month. movement, tem that control balance and theOn same date that T.W. admit- poor, and because her so balance is she hospital, ted to Department took compression needs a suit walk her to on three-year-old to Cook D.W. Children’s frequent own. T.W. also suffers from sei- sibling an evaluation because his had been zures, problems swallowing liq- has clear body admitted to care. intensive D.W.’s uids, July and has loss some of vision. back, displayed on numerous old scars his S.G., Betty gave who was birth buttocks, hands, physi- and all indicative of placed day in foster care the after her Betty cal abuse. a Department tоld inves- birth. At the time of the termination G., tigator that Stevie whom she was hearing, all three children been placed had child, eight pregnant months with another together in one foster home.100 all had inflicted of the marks on D.W. and April Department Hawkins was the that, during T.W. and months eleven assigned Betty’s caseworker case. She together, she Stevie had been Stevie all testified that three children had medical hitting been had and T.W. with a D.W. physical issues. Hawkins said switch or until he left Betty belt marks. Betty stopped had attending Department- later admitted to Detective Eel that her funded on counseling March mother, W., Stevie, Janice well hit as about seven weeks before trial. Based Betty the children. went on to tell the Betty chil- her observations of with the Department investigator that around 1:45 dren, Betty Hawkins did not think could day a.m. of the T.W. was taken to During raise the children on her own. room, emergency hit visits, Stevie had T.W.’s baby hold not Betty would twice, against yelling head the wall her Al- interact with the other two children. sleep. go She also had though Betty said Stevie completed parenting- had class, inflicted the linear marks on T.W.’s arm. skills Hawkins said that she did pleaded guilty injury hearing. Stevie to reckless the final a child and was incarcerated at the time apply the abuse discretion except apply, we Betty any such skills on see use pull-ups All children were baby. three standard.101 it took diapers, or and on one occasion court To whether trial determine Betty thirty change minutes to two dia- discretion, must decide we abused its pers. court acted without ref- the trial whether Betty sub- Hawkins testified that had or any guiding principles; rules erence to stantially complied plan her service words, decide whether in other we must housing. One except obtaining stable arbitrary unreasonable.102 was the act Betty’s factor out of control was recent Merely trial decide because a victims, made influx of hurricane which in a different matter within its discretion housing au- obtaining through housing court would in a appellate manner than an Betty thority more difficult. lived with does not demonstrate similar circumstance Janice, mother, Betty had identi- her has of discretion occurred.103 that an abuse people fied as one of the who Janice does not occur An of discretion abuse Also, had hitting children. Janice its trial court bases decisions where the protect Betty from sexual failed to abuse Furthermore, an conflicting evidence.104 by Betty’s According Betty, stepfather. long discretion does not occur abuse of time, said she was teen at the Janice who proba- evidence of substantive and as some nothing but did was aware of abuse support the trial tive character exists to Moreover, that stop it. Hawkins testified court’s decision.105 Stevie, man Betty continued see injured who had T.W. c. Discussion plan, Betty under- part As her service Betty the trial court argues that MHMR, went an at but assessment by failing find that its discretion abused MHMR denied her services because with MHMR upcoming appointment her the minimum level Betty functioned below fac influx of hurricane victims—a and the necessary qualify for services. Hawkins Betty’s control that made beyond tor thought Department testified that the Bet- housing impossible for her to find stable ty attempt to should make another obtain authority through housing ex —were services, thought MHMR and she an traordinary justified circumstances that Betty appointment had an to be reassessed deadline.106 extension of the dismissal Wе following the month trial. disagree.

b. Standard of review Betty’s first The trial court considered deadline on motion to extend dismissal Because an of the dis extension But is no record of March there date to a missal is similar continuance Because no hearing or the evidence. does not indi because section hearing, March to record was made of the cate which standard of review Barber, J.A., 02-05-00454-CV, In re 101. See In re No. 1998) (Tex.App.-Fort (orig. proceeding). at *9 Worth Nov. WL (mem.op.). pet.) Co., v. Ford Motor 105. Butnaru Inc., Aquamarine Operators, 102. Downer (Tex.2002). cert, (Tex.1985), de- nied, 476 U.S. 106 S.Ct. 263.401(b). 106. See Tex. Fam.Code. Ann. (1986). L.Ed.2d 721 Id. presume we sup- must that the program. evidence a service all light of ported and, trial, trial ruling court’s there- presented other evidence we can- fore, say we hold that court did not the trial court abused its abuse denying pre- by failing extraordinary its discretion in discretion to find Betty’s justified 180-day trial motion.107 circumstances that a ex- tension the dismissal deadline. We Betty re-urged her motion at begin- the Betty’s overrule second issue. ning hearing. of the final Betty presented motion, no evidence to pertaining the but III. Conclusion trial counsel Betty asserted that needed a Having Betty’s sustained third issue 180-day extension because MHMR had part part, having it in overruled over- provided entity her with the name of an issues, her ruled first and second and not willing provide to to her services reaching issue, her fourth affirm the we beginning month later and because trial court’s terminating final order her “she’s receiving difficulty still from the D.W., parental rights T.W., to and S.G. Housing Authority in having terms of an apartment available to her.” Bet- Because CAYCE, C.J., a dissenting filed ty presented no evidence when re- she HOLMAN, concurring opinion which J. urged motion, her she cannоt show that joins. the trial court abused its discretion when McCOY, J., opinion. a concurring filed denied her motion.108 Betty’s To extent the second issue en- AND DISSENTING CONCURRING compasses overruling by the operation of OPINION trial, law of her motion for new in which CAYCE, JOHN Chief Justice. she argued that the trial court erred I respectfully majority’s dissent to 263.401(b) the motion, failing grant her af- opinion holding dicta that section ter the trial court pertinent heard evidence 263.405© Family of the Texas Code violates the to her motion to extend the dismissal separation powers clause Texas deadline, we hold that the trial court did judgment Constitution.1 I concur not abuse its discretion. The evidence only. presented to the trial court during hearing

final did not render the denial of Generally, reviewing court determines arbitrary the motion or unreasonable. questions only constitutional when the that, contrary Hawkins testified coun- court cannot resolve issues on noncon- assertion, pretrial Betty’s sel’s upcoming grounds.2 Betty’s only stitutional com- appointment with merely MHMR was for plaint on appeal concerning the trial reassessment, not placement for definite in court’s actions in this case is the trial J.A., (pre- 107. In re 2006 WL provide extraordinary at *9 evidence of an suming supported ruling evidence trial court’s would circumstance that warrant an exten- holding trial court did not dis- abuse its time”). sion denying cretion in motion extension pro- appellant dismissal date where failed to II, § art. Const, hearing). vide record of B.L.D., In re A.S.J., 04-06-00051-CV, re See In No. cert, denied, 2003), by Dossey Dep’t v. Tex. (Tex.App.-San WL at *2 Anto- Servs., Regulatory Protective & U.S. July pet.) (holding (mem.op.) nio (2004). 124 S.Ct. 158 L.Ed.2d 371 appellants could not abuse show of discretion 263.401(b) they under section where "failed Legis- be limited natiоn order denying discretion her court abused its lature.7 for an extension motion however, Betty, of the dismissal deadline. of section 263.405 applicable version hearing failed to make a record of pertinent family provides code Conse- her motion extend the deadline. part: majority the trial quently, affirmed (a) order ren- An of a final ruling reaching merits

court’s without governed subchapter this dered under was, therefore, It Betty’s complaint.3 supreme by the rules unnecessary ap- of this disposition in civil cases and the accelerated ques- peal majority for the to decide procedures by this section.... provided tion of whether section violates (b) day after Not later than the 15th powers separation the clause because is the signed final order the date a the merits of Bet- reviewing bars us to judge, party intending appeal a trial ty’s majority’s opinion The on complaint. a the trial court the order must file wrong. is dicta. It also that issue is points on point the statement of to The party appeal. the intends which right appeal a order The to termination mo- may be combined with a statement statutory, the is not constitutional.4 While a tion for new trial. appellate constitution confers the courts appeals to in general power the review (i) may not con- appellate court cases, including proceed-

civil termination specifically that was not sider issue ings, power subject is to expressly this timely a presented to the trial court in and regulations may “such restrictions as points on which the statement prescribed by Supreme law.”5 As filed appeal or a party intends to in in Court of Texas stated Seale v. McCal- combined with a motion lum, principle fixed the Leg- is that “[T]he 8 new trial.... right limit power islature has the to Thus, 263.405, appeal....”6 an has appellant our constitutional section Under any issue power right appellate to an from a termi- to review of appeal review 459, 465, 647-48; A.R., 454, (1895) 466 Maj. op. at re No. 87 Tex. 29 S.W. see In 02- 3. 40627, 03-00235-CV, (stating legislature 2004 at *1 acted within its con- WL that 2004, 8, denied) App.-Fort pet. limiting jurisdiction Worth Jan. power in stitutional (mem.op.). language supreme identical court under V, 3). section Texas Constitution article (Vernon § 4. See Tex Fam.Code Ann. 109.002 Mathew, 2002); Seale, see also Sultan v. at 47. Tex. at 287 S.W. (Tex.2005) (stating legislature that Sultan, 178 S.W.3d at open power right appeal; to has to restrict guarantee right provision does to courts not (i) 263.405(a), (b), (Ver- § Ann. 8. Tex Fam.Code Michalson, appeal); accord Doleac added). 2006) Supp. (emphasis non & (5th Cir.2001) (holding 492-93 that F.3d 16, 2007, after June Effective for cases filed process right appellate is no due to there 263.405(b) to Legislature amended section Constitution); in Able v. Bacar- review U.S. intending requirement party to that a add a (5th Cir.1998) (not- isse, 131 F.3d request file a not request a new "must statutory ing right appeal to that “the is days a final order than after the date later right, right"). anot constitutional 21, 2007, Leg., signed.” May 80th Act is R.S., V, §§ Sess. Law. 6(a); ch. 2007 Tex. § see Seale v. McCal- Const, art. Tex (Vernon) (to lum, be codified Serv. 287 S.W. (1926) of Tex (stating an amendment had to Ann. Fam.Code 263.405(b)). not The amended version is pri- jurisdiction of courts of limit contests); Covington, Id. applicable to this case. mary Maddox v. election presented to the trial in a down section as having “unduly 263.405® timely-fíled statement of interfered with our pursuant appellate substantive powers” reviewing because it us from to section and that bars is otherwise were, likewise, two other issues not preserved in accordance with the rules of timely presented to the trial court.11 The Supreme Legis- Court Texas.9 The only explanation majority offers for its 263.405®, lature has declared section deference to the court-made rules over the however, that right appellate there that, statutory majority’s rules is of an review that is not preserved issue view, the court-made rules better serve the procedures accordance with the provided goals policy of the statute.12 This is by the right section.10 Because decide, for the Legislature matter not statutory, termination order is may question the courts. While we the limitation on an 263.405® statute, efficacy wisdom we appellant’s right of a review procedures merely refuse follow its termination proper order constitutes a ex- we are they because believe flawed or that ercise of the Legislature’s constitutional they promote Legislature’s fail to ob- power to regulate ap- and restrict such jectives.13 It peals. pow- does not interfere with our The test for the of separation whether toer review and decide issues that have powers by clause procedural is violated preserved been in accordance with the legislative statute is not the pur- whether procedures rules governing and section by pose effectively of the statute is served 263.405. the statute or whether court-made rules In comparing section 263.405 to court- policy goals achieve the of the statute bet- preservation made rules, of error the ma- majority ter than the statute As the itself. jority performs legislative under function notes, [only] functioning is “[i]t when the guise judicial the of decision making. The judicial of process the in a constitu- field 33.1(a) majority appellate holds that rule tionally committed the to control the of reviewing Betty’s bars us from first issue by courts is ... legisla- interfered with the because it timely presented was not to the problem tive that a constitutional branch[ ] court, majority but then the strikes Appeals arises.”14 from termination or- involving (i). 263.405(a), (b), one or more issues were dis- § 9. Tex. Fam.Code Ann. noncompliance proce- due missed to with the §Id. 263.405(i). dures section is 26% faster than average disposition the rate of for other termi- 630-31, 644-45; Maj. at see Tex.R.App. op. appeals. Management System, nation Case 33.1(a). P. State of Texas Court Office of Administration (Jan. 2008) court). Thus, (on file with the Maj. op. at 643-46. Legislature’s primary goal disposing ap- peals possible delay” "with the least has been Conoco, Inc., 13. See v. Ruiz by provided procedures by achieved the sec- (Tex.1993) (upholding applying appeals 263.405 in filed in tion this court. by procedure mandated Texas’s venue statute Comm, Family House Justice Juvenile notwithstanding fact the that it was deemed Leg. H.B. Tex. 79th Issues, Analysis, flawed"). Bill by the "fundamentally court to be (2005); R.S. see discretion, Fam.Code majority’s Ann. Even if we had this the 263.405(a). conclusion that not section does expedite appellate process is belied 14.Maj. op. showing (quoting within State data this court’s own records Bd. Ins. Betts, years, that within the two 158 Tex. last fiscal the aver- 851- age (1958)) added). disposition appeals (emphasis rate for termination from re- similarly us prohibit constitutionally com- rules ders have not been preserved.16 that are viewing issues The to the control of the courts. mitted section language Nothing case right in a termination 263.405®, history, or its legislative its subject regulations to the restriсtions the stat- application suggests that practical Legislature, possibility and the mere any pur- accomplishing ute directed at right may this regulating that a statute expressed goals pose other than fail, part, accomplish in whole or in to its statute.17 Legislature it enacted the when legislative purpose does not render unanimously sitting en banc As this separa- under the statute unconstitutional M.R.J.M.,18 “[Section re held in powers tion of clause. appeals to bar is not intended 263.405] that, majority contrary claims The nor is in- complaints, meritorious raise history, section legislative statute’s prevent appellate courts tended legisla- is not “directed at” the 263.405® conducting meaningful review of such com- reducing goals post judgment delay tive But, assuming Legis- even plaints.” but, instead, is exclu- and frivolous only enacting purpose lature’s “prohibiting sively directed at exercise of to limit our review 263.405® appellate power our to review issues.”15 power preserved accordance issues majority support for provides what procedures provided with the subsec- it perceives legislative to be such a sinister (b), Legislature has the constitu- tion motive, majority’s place other than own criti- this restriction on tional us.20 cisms of statute favor court-made Legislature Maj. op. regulate and restrict the at 642. ers right of review in termination cases. Sultan, V, 6(a); § art. ‍‌​​​‌​‌​‌​‌‌​​‌‌‌‌‌​‌​​​​‌​​​​‌​​‌‌​‌‌‌​​​‌​​‌​​‍178 See Tex Const, 16. See id. at 642-45. 667, 752; Seale, at 116 Tex. at 287 S.W.3d S.W. at distinguishes 17. This section 263.405 Speedy the Trial Act that the court of criminal (Tex.App.-Fort 18. 193 S.W.3d 670 Worth appeals found to be unconstitutional in Me- (en banc). pet.) no State, (Tex.Crim.App. v. 246 shell 1987), majority heavily a case on which the presented here is Meshell, 19. Id. at 675. The issue According to relies. the court in the potential than issue we much different the expressly controlling at a Act was directed M.RJ.M., In re confronted with in were "judicial” prepara- prosecutorial function — where, provision in notwithstanding sec- the Id. tion and readiness trial. at 255. The parent requiring indigent 263.405(g) an tion separation held that the Act violated the finding appeal a to trial court’s frivolousness it powers of clause not because intruded into only record of the frivolousness with the prosecutor’s prepare to for tri- the discretion reporter’s hearing, a al, we ordered that free necessary which the court to said admitted at trial to be record of the evidence right a defendant’s constitutional to a enforce to exercise trial, prepared and filed to enable us speedy but because it did so without power constitutionally judicial assigned our assuring taking into account factors complaints. sufficiency reviewing factual trial,” of speedy such a "commencement of as 672-76; see at Id. right speedy of his defendant’s assertion Fam.Code Ann. Tex 263.405(g). 263.405(g), Unlike section Thus, at encroached trial. Id. Act 263.405(i) nothing that there is in section upon prosecutorial function "without exercising potentially hinder us our would express provi- authority of an constitutional assigned constitutionally power review is- Here, only Id. not is there no intrusion sion.” appealed in accordance with the sues that are pre- are to decide issues that into our procedural requirements statute. procedural re- in accordance with served 263.405, quirements is but there an of section 649-50, supra empow- 651 n. 17. express provision 20. See at constitutional

652 conclusion,

In unlike the in the statutes we must affirm trial court’s denial of three inapposite criminal law on cases reviewing motion without merits reliance,21 majority misplaces which the its Betty’s complaint that it should have been does not us tell how would, therefore, granted. I not address perform judicial our function or we “how Betty’s argument section 263.405© brought must rule on issues before us.”22 separation powers violates the clause simply It limits appellate review of termi- reviewing because bars us from the mer- preserved nation orders to issues that are Otherwise, complaint. its of her I would procedures provid- accordance Betty’s separation powers overrule ar- ed the statute. This limitation well gument, dismiss her other issues because Legislature’s within the constitutional pow- they not preserved timely-fíled were in her regulate er to right and restrict points,23 judg- and affirm the termination order. ment court.24 Because there no record the hear- ing Betty’s on motion to extend the dis- 263.401(b), HOLMAN, J.,

missal joins. deadline under section n State, 07-00160-CV, (Tex. 21. Armadillo Bail Bonds S.W.2d WL at Meshell, (Tex.Crim.App.1990); App.-Houston pet. [1st Dist.] Jan. no 246; State, h.) (same); D.L.G., (op. S.W.2d at Williams v. reh’g) In re No. (Tex.Crim.App.1986). 05-07-00787-CV, WL at *1 Dec.17, h.) (Tex.App.-Dallas pet. no Maj. op. at 645. A.R., (same); (mem.op.) In re No. 04-07- 00292-CV, (Tex. at WL *1-2 majority Betty's does reach com- Nov.28, 2007, App.-San pet.) Antonio no (b) (i) plaint that subsections of section S.M.T., (same); (mem.op.) re In No. 09-06- process rights 263.405 violate her due under 00525-CV, *1, 2007 WL applied the United States as Constitution Nov.29, 2007, App.-Beaumont pet.) no case, her and neither do I. Two of our sister N.Z.B., (same); 13-07-00316-CV, re No. courts, however, recently have decided (Tex.App.-Corpus 2007 WL at *1 question, and both courts held that the statute Nov.l, 2007, pet.) (mem.op.) Christi applied rights did process violate the due (same); Dep't Family Mikowskiv. & Prоtec appellants those cases. See In re Servs., 01-07-00011-CV, tive 3038099, No. 2007 WL DM., (Tex.App.-Waco 244 S.W.3d 415 (Tex.App.-Houston at [1st *2-3 2007, S.K.A., pet.) (op. reh’g); no on re 236 In 18, 2007, (mem.op.) pet.) Dist.] Oct. no 875, 2007, (Tex.App.-Texarkana S.W.3d 894 C.R., 11-07-00060-CV, (same); re In No. filed). pet. Both DM. and late S.K.A. involved 2948916, (Tex.App.-Eastland 2007 WL at *1 appointments pre- of counsel that hindered or 11, 2007, (same); pet.) (mem.op.) Oct. no re In appellants filing timely vented the from K.C.B., 454, (Tex.App.-Amar 240 S.W.3d 455 DM., points. WL 2007 2007, filed) (same); F.C.G., pet. illo re In No. 2325815, *6; S.K.A., at 236 S.W.3d at 885. 11-07-00068-CV, 2823685, 2007 WL at *1 case, however, Betty represented In this was 2007, filed) (Tex.App.-Eastland Sept.27, pet. appointed during peri- counsel the critical T.R.F., (same); (mem.op.) re In No. 10-07- before filing od the deadline for her statement 00086-CV, 2325818, (Tex. 2007 WL at *1 points, timely and her counsel filed a state- 2007, App.-Waco Aug.15, (mem.op.) pet.) no points raising insufficiency points, ment of 06-07-00010-CV, (same); L.F.B., re In No. appeal. which she did assert this 2001643, (Tex.App.-Texarkana 2007 WL *4at 2007, 12, denied) (same); 263.405(i); July pet. (mem.op.) 24. See Tex. Fam.Code Ann. re In 04-07-00048-CV,-S.W.3d RM„ J.J., 05-06-01472-CV, 223841, re No. In No. WL 2008 -,-, 2008, 1988149, Jan.29, (Tex.App.-Dallas pet. *7 WL *1-2 at 2007 at no h.) 11, 2007, (mem. op. reh'g) (refusing (Tex.App.-San July pet. de Antonio consider nied) (same); K.A.I., points timely in a In not contained filed re No. 10-07-00110- state CV, 1704815, points (Tex.App.-Waco ment alone or combination with a 2007 WL at *2 A.A.A., trial); 13, 2007, (same); new pet.) motion for In re 01- (mem.op.) No. June no In

653 vio- question of whether OPINION CONCURRING powers clause be- separation lates the McCOY, BOB Justice. reviewing the merits cause it bars us was, complaint. majority’s opin- agree Betty’s I with the dissent “[i]t therefore, Dissenting ion is dicta.” unnecessary disposition on that issue only 2.1 concur concurring op. at majority this for the to decide the 04-06-00219-CV, E.I.W., I.C., 04-06-00846-CV, 2006 WL WL No. re No. 2007 11, 6, 2871570, 1608971, (Tex.App.-San at *1 Antonio Oct. (Tex.App.-San at *1 June Antonio T.T., 2006, (same); 2007, (same); pet.) (mem.op.) re In pet.) (mem.op.) In re no no 06-06-00093-CV, H.H.H., 312, WL (Tex.App.-Houston No. 2006 228 316-17 S.W.3d Oct.4, 2820063, 2007, denied) (same); (Tex.App.-Texarkana pet. at *1 In re [14th Dist.] D.A.R., (same); B.S., 2006, 09-06-00293-CV, pet.) (mem.op.) In re no No. 2007 WL *2, 229, 1441273, (Tex.App.-Fort Worth (Tex.App.-Beaumont May 231 at 4-5 201 S.W.3d E.A.R., 17, 2006, (same); 2007, (same); pet.) 201 pet.) (mem.op.) In re no In re no 2006, 813, M.D., 05-06-00779-CV,-S.W.3d-, (Tex.App.-Waco no S.W.3d 813-14 No. n 1 A.C.A., -, 1310966, (same); (Tex.App.-Dal pet.) 13-05-00610- WL at In re No. 2007 n 1 1172331, 2007, F.D.D., CV, 7, (same); (Tex.App.-Cor at May pet.) re WL las no In 2006 2006, 4, 04-06-00692-CV, 1267235, (mem.op.) pus May pet.) 2007 at Christi no No. WL 14, S.E., (Tex. 2, 2007, (same); re 203 S.W.3d 15 (Tex.App.-San May *1 no In Antonio 2006, S.C., (same); (same); pet.) no In re pet.) (mem.op.) App.-San In re No. Antonio 06-07- n 1 06-05-00139-CV, 1223880, I.M.S., 00051-CV, (Tex. WL No. 2005 2007 WL at n 1 20, 3465518, 2007, (mem. (Tex.App.-Texarkana App.-Texarkana pet.) at Dec. Apr.27, no S.M.T., R.J.S., 623, (same); 2005, (same); (mem.op.) op.) pet.) see In re no 219 S.W.3d 652, 2007, denied) (refusing (Tex.App.-Dallas at to con pet. 654-55 626-27 863, RM.R., (same); appellate points re 218 where statement In S.W.3d 864 sider F.A., filed); 2007, untimely 13- (Tex.App.-Corpus pet.) no In re No. Christi 07-00438-CV, 3293664, J.F.R., 09-06-00115-CV, (same); WL *1-2 re No. 2007 at In 2007, Nov.8, 685640, (Tex.App.-Beau pet.) (Tex.App.-Corpus 2007 *1-2 Christi no WL at Mar.8, J.L.W.M., 2007, (same); (same); (mem.op.) No. pet.) (mem.op.) In re 07-07- mont no 2962933, M.D.L.E., 09-05-00514-CV, 00043-CV, at WL *1 In re No. 2007 2007 685562, Mar.8, (mem. pet.) (Tex.App.-Beaumont App.-Amarillo no WL at Oct. *3 T.R.F., 263, 2007, (same); (same); pet.) (mem.op.) op.) S.W.3d 265 no Pool v. Tex. In re Servs., 2007, filed) (same); pet. Dep’t Family (Tex.App.-Waco In re & Protective 248, 212, M.N., (Tex.App.-East- (Tex.App.-Houston 249-50 [1st Dist.] S.W.3d 2007, R.C., 2007, filed) (same); (same); pet. In re pet.) Dep’t land no Adams v. Servs., 271, Apr.25, Family (Tex.App.-Amarillo & Protective S.W.3d at K.R., 2007, 2007, (same); (Tex.App.-Houston pet.) In re No. 09-06- [1st no no Dist] R.A.P., 0056-CV, 117738, (same); (Tex.App. pet.) WL at *1 In re No. 14-06-00109- denied) (mem. CV, (Tex.App.-Hous pet. 2007 WL at *1 Beaumont Jan. 02-06-0099-CV, C.R., denied) (same); op.) pet. ton In re No. Dist.] Jan. [14th J.H., (same); (Tex.App.-Fort (mem.op.) re WL *1 No. 12-06- at n 00002-CV, (mem.op.) pet.) (Tex.App. Nov. 2007 WL Worth Jan.24, 2007, (same); (same); Coey Dep’t Family & Tyler (mem.op.) Protec pet.) v. Tex. no of 03-05-00679-CV, C.B.M., 703, Servs., WL (Tex.App.- tive 2006 In re 225 S.W.3d 706 No. 19, 1358490, 2006, N.L.G., (Tex.App.-Austin May pet.); E1 In re at *2 Paso no No. 06- 06-00066-CV, *1, 3, 2006, (same); 3626956, pet.) (mem.op.) see In WL at no also 2006 5 661, 2006, J.W.H., 14, (Tex.App. pet. (Tex.App.-Texarkana re 222 S.W.3d 662 Dec. de 2007, R.W., nied) (same); pet.) (refusing to (mem.op.) consider In re No. 06- Waco no 06-00106-CV, 3391420, (Tex. points *1 where of not suf WL at Nov.22, 2006, (mem. Dep’t ficiently specific); v. Tex. App.-Texarkana pet.) Cisneros no Servs., 877, S.B., (same); Family No. 13-06-00321- op.) 881- & Protective re 3824939, 2006, CV, (Tex.App.-Cor WL *1 (Tex.App.-Fort pet.) no at Worth 2006, 29, 45, A.H.L., (mem.op.) (same); pus pet.) Christi Dec. no In re *1, 3, N.L.G., (same); (same); denied) WL at App.-El pet. In re Paso A.C.A., (same); C.M., *1 2006 WL (Tex.App.-Houston (same). (same); pet.) In re Dist.] [14th majority’s affirmance the trial court’s terminating parental

final rights. order Because I would hold that it was not nec-

essary reach question the constitutional concerning section of the Texas Code, Family join I opin- do either analysis constitutionality ion’s of the Bruner, Bryan Bruner, M. Gina D. that statute. Worth, Appellant. Forth Bakutis, Worth,

David C. Fort for Ap- pellee. HOLMAN, GARDNER,

PANELA: McCOY, and JJ. OPINION Mary

In the ESTATE Ann OF PRUITT, HOLMAN, Deceased. DIXON W. Justice. I. Introduction No. 2-06-438-CV. case, In this Appellant will contest Har- Texas, Appeals

Court of ry Burton Walker the trial court’s Fort Worth. granting Appellee Catherine DeLeon’s summary judgment Feb. motion and the granting trial court’s order administration Rehearing Overruled March administrator appointing and as DeLeon the estate. and We reverse remand.

Background II.

Mary Ann Pruitt died on June and left a will named and Walker his wife executors beneficiaries Pruitt’s only estate. Pruitt left ten dollars Armstrong, each to DeLeon Lewis her estranged Pruitt clear in children. made her obligation will that she felt no moral either her children. Three Pruitt’s employees witnessed execution February will on at Pruitt’s chiro- (‘Wit- practic Carolyn clinic. Lunsford Lunsford”) Regina ness Franklin Hall (Witness Hall”) signed the will as attest- ing (“Notary witnesses and Marie Hall Hall”) signed notary. as a summary judgment gener- evidence ‍‌​​​‌​‌​‌​‌‌​​‌‌‌‌‌​‌​​​​‌​​​​‌​​‌‌​‌‌‌​​​‌​​‌​​‍ally of Febru- morning shows ary Notary Hall Pruitt asked

Case Details

Case Name: in the Interest of D.W., T.W., and S.G., Children

Court Name: Court of Appeals of Texas

Date Published: Feb 19, 2008

Citation: 249 S.W.3d 625

Docket Number: 02-06-00191-CV

Court Abbreviation: Tex. App.