*1 rights stating that enlarges tion Pena’s appeal
he not. right SALAIS, has to when he does Ana Maria Gonzalez Individu easily appeal distinguishable Pena’s ally Representative and as of the Es right from Few’s Few to appeal: had the Gonzalez, Deceased, tate of Ruben Ap appeal, procedural but a trivial mis- made pellants, take; right Pena to appeal had place. first Few, right Pena
Unlike has no TEXAS DEPARTMENT OF AGING appeal to this case because he confessed SERVICES, & DISABILITY Tex.R.App. exchange plea bargain. for a P. Appellee. 25.2(a)(2); 728; see Wayne, at Few, such, No. at 186. 10-09-00155-CV. S.W.3d As rule 25(a)(2) appeal. does authorize Pena’s Texas, of Appeals Court Morgan, See at S.W.3d 538. “We Waco. deficiency resolve the the trial court’s certification against finding jurisdic Aug. 2010. appeals, tion.” Id. at “A 538. court of having jurisdiction while to ascertain
whether an appellant plea bargained who permitted 25(a)(2), appeal by to rule prohibited
must dismiss a without appeal action, regardless
further for the basis State,
the appeal.” Chavez (en banc). (Tex.Crim.App.2006) judge certifying
While the trial erred in appeal,
Pena’s case for fact remains 25(a)(2)
that Rule grant juris does not us appeal.
diction to hear this Morgan, 185 Greenwell,
S.W.3d at See
at 649. if we Even were to the trial order certification,
court to amend its Pena
would appeal still be unable to convic Tex.R.App. 25.2(a)(2);
tion. See P. see also 538; Greenwell,
Morgan, 185 at 649. We conclude that we
do not need order the trial court
correct the certification because the record
affirmatively demonstrates that Pena does
not have right appeal.
III. Conclusion reasons,
For the foregoing we dismiss appeal jurisdiction.
Pena’s lack of for *3 go refused to to bed and was then
had by Sheri Thornton physically restrained Korn, employees. and Charles two TDADS Thomas, ar- employee, After Joel a third rived, they Ruben restraint placed on a Sanderson, nurse, a TDADS board. Sue called the scene and found Ruben pulse pressure. with no or blood pale was unable resuscitate Ru- Sanderson *4 An ben. automated external defibrillator (AED) but employed, was it was used arrived and to shock Ruben. Paramedics a flat line and no their monitor showed rhythm. to cardiac Ruben was taken pronounced hospital, where he dead. pleads: Salais also & Management In Prevention Synopsis Behavior Aggressive Course allegedly provided Defendant Mexia employees, employ- to its [State School] ees are warned that care “[e]xtreme during any must be exercised horizontal that abil- person’s restraint to insure Weber, R. Keith Woodfill & Pressler ity to is not breathe restricted.... LLP, Houston, Appellants. for restraints, [D]uring all horizontal Office, Giberson, Atty. John P. General’s side-lying posi- remain in a person must Division, Austin, Litigation Neal E. Tort continuously. Fail- tion and monitored Howell, LLP, Pirkle, Ñaman, Smith & Lee may injury ure to do risk serious and so Waco, for Appellee. positional asphyxia, death from [which] occurs when there insufficient intake GRAY, Before Justice Chief Justice oxygen body positioning a result of as REYNA, and Justice DAVIS. ability interferes with one’s orig- in [Ellipsis breathe.” and brackets OPINION inal]. DAVIS, REX D. Justice. that the “Mexia State pleads She further Maria appeals Ana Gonzalez Salais Synop- Retraining School Annual Course court’s her health- dismissing trial order sis,” partici- allegedly provided every De- against claim the Texas gives warning and also pant, the same Disability and Services partment Aging person “that the is restrain- provides who (TDADS). ing body important the lower has an role circulation, breathing, alleges monitoring that her son in and petition Salais’s live Me- individ- patient general Ruben was a at the condition restrained Gonzalez ual, maintaining School, facility, assisting be- and xia State a TDADS side-lying posi- in a developmental disability. restrained individual cause of his (after Ruben evening midnight), Late one tion.” liability cause of ac- straint board and the AED. The
In her health-care other Winston, M.D., tion, report, of that TDADS Donald address- alleges [Mexia Salais es the causation element. employees and TDADS State School] Korn, Thornton, negli- Thomas were objected TDADS reports in the care and treatment of Ruben gent moved to dismiss Salais’s health-care lia- followingways: each of bility claim under section 74.351. See id. The motion asserted that experts Salais’s recognize appreci- 1. Failure to and/or were not and that their reports potential ate the risk factors for the were inadequate. granted The trial court perform- of death when occurrence motion to TDADS’s dismiss without stat- restraint; ing physical ing issue, In any grounds. her first Salais of the restraints and re- Misuse argues that the trial court in grant- erred performing board when straint ing TDADS’s motion to dismiss. restraint; physical review the trial We court’s deci anticipate the risk of trau- 3. Failure *5 liability sion to dismiss a health-care claim a asphyxia performing matic when by the abuse-of-discretion standard. restraint; physical Tex., American Transitional Care Ctrs. of plan physical 4. Failure to the restraint (Tex. Palacios, 873, Inc. v. 877 according to the increased risk for 2001). Also, a trial court’s decision on Decedent; injury serious person whether a is to offer an Inappropriate management of the expert opinion liability a health-care performing physi- of complication claim is reviewed under the abuse-of-dis restraint; cal Gatica, cretion standard. Moore v. requisite the 6. Failure to have knowl- 134, 139 (Tex.App.-Fort Worth edge regarding appropriate respons- denied). 2008, “However, pet. a trial court restraint; physical es to a combative determining has no discretion in what the perform appropriate 7. Failure to the law is or the to the applying law facts. during physical interventions re- Packer, 833, Walker straint of Decedent once health com- (Tex.1992). by A clear the trial failure encountered; were plications analyze apply correctly court to or the law Id.” will constitute abuse of discretion. provide proper 8. Failure to education Heart, Webb, P.A. v. training to Austin employees and who were 2007, no (Tex.App.-Austin 279-80 in the upon called to assist restraint pet.); Hosp. Shep Methodist see also of Decedent. (Tex. herd-Sherman, Practices Section 74.351 Civil and App.-Houston pet.) [14th Dist.] provides that within 120 Remedies Code may judg not our (“Though we substitute suit, a claimant must serve a days filing of court, ment for that of the trial the trial (CV) curriculum vitae and one or more determining court has no discretion in expert reports regarding every defendant applying what the law is or law against whom a health care claim is assert- facts.”). ed. Tex. Civ. Prac. Ann. Rem.Code & (Vernon Salais Supp. pro- 74.351 Report Wohlers reports. One was vided two Qualifications Wohlers, paramedic, which James care and breach motion to dismiss and brief addresses the standard of TDADS’s the re- assert that and CV do relating elements to the use of Wohlers’s (b) qualifications testify not establish his In involving a suit a health care the standards of care about claim against pro- health care vider, the Mexia State School healthcare staff or person may qualify as an to the treatment for individuals with be- witness issue of whether havioral, mental, developmental and dis- health care provider departed from ac- abilities. Its brief also asserts that Woh- cepted only per- standards of care if the that lers’s does show son:
“management and care” of Ruben on the (1) practicing is health care in a field question “something occasion in univer- practice that type involves the same sally done.” of care or treatment as that delivered
Regarding qualifications, Wohlers’s provider, defendant health care if report states: provider defendant health care anis individual, my
I
at the time the
paramedic
testimony
received
education
Creighton University
given
from
in 1992.
or
practicing
type of
Omaha,
I
Initially
paramedic
arose;
was a
health care at the time the claim
Nebraska from 1992 to
then a
(2) has knowledge
accepted
stan-
paramedic
City
for the
County
dards of
for
providers
health care
from
Denver
1996 until 2000. Since
care,
diagnosis,
for the
or treatment of
2000,1 have been with the Grand Island
illness,
injury, or condition involved
Island,
Department
Fire
in Grand
Ne-
claim;
paramedic/firefighter.
braska as a
I
*6
(3)
qualified
training
on the basis of
have also been involved in restraint as-
experience
or
to offer an expert opinion
phyxia education since
I teach
regarding
accepted
those
standards of
EMS, Law Enforcement
persons
and
health care.
involved in the restraining of combative
(c)
determining
In
whether a witness is
persons.
I
qualified
have been
as an
qualified on the basis of training or ex-
expert in
asphyxia.
the field of restraint
perience, the court shall consider wheth-
history
Wohlers’s CV restates the above
er, at the time the claim arose or at the
and notes his certification as an EMS in-
testimony
time the
is given, the witness:
structor
specializes
and that he
in “re-
(1) is
by
licensing
certified
agency
straint-related issues” and instructs on
of one or more states of the United
Support
Advanced Life
and Basic Life
States
professional certify-
or national
Support topics.
His
further states:
ing agency, or has other substantial
I am familiar with the standard of
training
experience,
or
in the area of
restraining
care for
person
combative
claim;
health care relevant to the
and
steps
and understand what
should be
(2)
actively practicing
health care in
taken
respiratory
to monitor for
dis-
rendering health care services relevant
education,
Through my
tress.
back-
to the claim.
ground
experience,
I am knowledge-
74.402(b,
§
Civ. Prac. & Rem.Code Ann.
able in the standard of care that
Tex.
c) (Vernon 2005).
staff of Mexia State School should have
provided
night
to Mr.
Gonzales
disagree
We
that Wohlers was re
he died.
quired to be
general as an
On the issue of
qualifications,
Wohlers’s
about the
applica
standards of care
statute,
we turn
applicable
section
ble to the Mexia State School healthcare
74.402, which provides
pertinent
part:
staff for the care and treatment for indi-
behavioral, mental,
viduals with
and devel
cause it does not articulate the relevant
Rather, under the
opmental disabilities.
standard of care
the bases for the
and/or
74.402(b)(1,
literal
of subsections
language
relevant standards of
applicable
care
2),
only required
practic
Wohlers is
to be
TDADS and it does not specifically state
in a
ing
practice
health care
field of
that
the manner in which TDADS breached the
type
involves the same
care or treatment
of
standard of care.
as that delivered
health
the defendant
provider
knowledge
care
and have
considering
When
a motion to dis
accepted
of care for health care
standards
74.351(b),
miss under subsection
the issue
or
providers for the care
treatment
is whether the report represents
good-
of
condition involved in the claim. See id.
faith effort
comply
statutory
with the
74.402(b)(1,2); see,
§
e.g.,
Group Vicen definition
an expert
report. See Bowie
ta,
(Tex.App.
730-31
Hosp. Wright,
Mem.
denied).
2005, pet.
Houston [14th Dist.]
Palacios,
(Tex.2002);
TDADS’s to dismiss asserted inadequate that Wohlers’s be- an in has been as restraint forth his familiari investigative report Wohlers’s sets It cites an asphyxia. the course of ty that he reviewed and details with the standard of care and the basis employees of three therefor, is, events and the conduct care and what the standard of Thornton) (Thomas, Korn, in placing and it on how the TDADS staff breached and, according Ruben on a restraint board in The address question. occasion Thomas, strap across using restraint care breach with es the standard of and which Ruben “was diaphragm, his after inform TDADS of specificity sufficient hard, making gur- breathing gasps, in and question that Salais calls into conduct Korn, According to a re- gling sounds.” provides and a basis for the trial court to chest, Ruben’s strap straint was across the claims have merit. See conclude that in only “slight rise” and Korn observed Palacios, at 875. It informs chest; pulse. a weak Ruben had expected TDADS “what care was but on the restraint Thornton observed Ruben Wenkstern, given.” Fagadau asleep, but he thought board and he was (Tex.App.-Dallas “funny” breathing looked and was shallow. h.) Palacios, pet. (citing arrived, find- Nurse Sanderson and after To the extent the trial court concluded abnormally pale, color to be ing Ruben’s otherwise, the court abused its discre trial initi- pressure, pulse, no blood and no she tion. attempted ated and to use an AED. CPR arrived, then over Mexia took Fire/EMS
CPR, Report intubation Winston and did an endotracheal transferring before Ruben to Parkview 74.351(i) permits Section Regional Hospital, pro- where he was satisfy any requirement of claimant to sec nounced dead. states: Wohlers serving expert report by tion 74.351 for I am familiar with the standard of serving reports separate experts. Tex. restraining person for combative 74.351(i); see Ann. Civ. Prac. Rem.Code & be steps and understand what should Guerra, Packard v. respiratory taken to monitor for dis- (Tex.App.-Houston pet. [14th Dist.] education, Through my tress. back- denied). can Expert reports be consid ground experience, knowledge- I am together determining ered whether able the standard of care plaintiff a health-care action has staff of Mexia State School should have regard provided adequate opinion Mr. provided night Gonzalez on care, breach, cau ing the standard of he died. *8 Walgreen Hieger, sation. See Co. v. requires The standard of care that if 2 (Tex.App.-Houston 186 n. any of persons one the involved denied); pet. Martin v. [14th Dist.] restraining recog- of Mr. Gonzalez had Center, Med. No. 11-04- Regional Abilene distress, nized that he was in respiratory (Tex. 00303-CV, 241509, at *4-5 2006 WL placed he not have been on a should (mem. 2, 2006, pet.) App.-Eastland Feb. straps placed restraint board and had physician’s A on causation op.). report anyone across his chest. Had not read in isolation. See Mar should be the of prevented application restrainers tin, *4; at see also Tex. WL board, likely the restraint it is more than not Mr. that Gonzalez would Ann. Civ. Prac. & Rem.Code 74.351(r)(5)(C) a (providing only § that asphyxia. have suffered restraint No expert giving opinion can be an physician of application one intervened testimony relationship). causal restraint board. on Petition in Qualifications Cause 28901A which states employees that three of Mexia State and brief TDADS’s motion dismiss School physically restrained Mr. Gon- Dr. assert that Winston’s CV time, period zales. After a a nurse at qualifications testify do not establish hospital found Mr. Gonzales dead. Its brief first asserts about causation. failed, Resuscitation and after endotra- showing there is no that Dr. Winston that chial by [sic] intubation Mexia Fire De- means, physician. “Expert” is a licensed EMS, partment he was taken to Park- person opinion a respect giving “with Regional view Hospital where he was testimony relationship about the causal be pronounced dead. harm, damages or injury, tween the alleged departure claimed and the from My Autopsy focus is on the any standard of care in Case No. JP0Í87-07-0120ACG done claim, physician health care a who January 16th 2007. qualified opinions to render on is otherwise agree physical I findings with the of: relationship such causal under the Texas 1. Petechiae in the right and left Rules of Evidence.” Tex. Prac. & Civ. conjunctivae (Vernon 74.351(r)(5)(C) § Ann. Rem.Code 2. to the right Contusions arm and Prag 2009); Supp. see also Tex. Civ. & leg left 74.408(a) (Vernon 2005). Rem.Code Ann. hemorrhage Subcutaneous Dr. in a letter for- Winston’s upper back and lower back mat, typed signa- and his letterhead and him identify ture block as “Donald Win- 4. Two subgaleal hemorrhages ston, MD.” His letterhead also reveals his 5. Abrasions and contusions on face (www.urbansurgeon.com) and his website and arms email address at that website. Further- asphyxia 6. Mechanical more, his December 2008 CV reflects that disagree I with final opinion (No. physician he is licensed Texas pathologists nine to the extent F0832, ex- February licensed 1978 and there is evidence that Mr. Gonzales in May TDADS’s assertion piring death, any way contributed to his own showing that there is no that Dr. Winston I agree but that his death was homi- physician a licensed is incorrect. cide caused restraint and mechanical Winston’s is a letter to Sa- him three asphyxia imposed on attorney entirety: states in its lais’s employees. Mexia State School your request, At I have reviewed an questions, please If you any have other autopsy report and death certificate of feel free to contact me.1 Gonzales, Hispanic Ruben year old
male apparently who student correct that Dr. TDADS is the Mexia State School. he is report fails to show how Winston’s on expert opinion to render an way knowing exactly I have no what *9 15, 2007, the in case. Rule 702 of place January took on or about causation this an requires I of Evidence that but have reviewed a Third Amended Texas Rules part properly of the 1. To the extent that Salais has asserted a court dismissed liability alleged claim health-care based on Ver- claim. See Benson v. health-care (it report, 755, the AED in the Wohlers non, misuse of is (Tex.App.-Waco 303 S.W.3d 760-61 Salais), pleaded by but it is not there is "no 2009, pet.). no causation, report" at all and the trial as 536 skill,
expert
qualified by “knowledge,
drawing
be
inferences or guessing as to what
experience,
training,
likely
or
education.”
meant or intended.”
Heart,
qualifications
Tex.R. Evid. 702. The
of an Austin
adequacy 74.351(c) of Dr. report, Winston’s we are provides: Subsection “If an ex- *10 precluded filling “from gaps report by pert report a has not been served within the (a) because health claim specified against Subsection care the Tex- period deficient, Department Aging Disability are found as elements and extension may grant 30-day one Services. Because the trial court court did not the defi- to the claimant order to cure in granting abuse its discretion TDADS’s ciency.” Tex. Civ. Prac. & Rem.Code motion to dismiss or in denying Salais’s Ann. 74.351(c). issue, § In Salais her second 30-day extension, a request for should we that the its dis- asserts trial court abused judgment. affirm the trial court’s Because mo- granting in not her alternative not, cretion I respectfully Court does dissent. cure thirty-day tion for a extension to her
expert report’s deficiency. BACKGROUND re The docket sheet to appears son, Gonzalez, pa- Salais’s Ruben awas motion, trial flect the court’s denial of that tient at facility, a TDADS State Mexia “of-rec but docket-sheet entries are not an School. After altercation with rulings. Any judgment, order or to ord” staff, State School Gonzalez on placed effective, must of record. be be entered a restraint board. He then Salais died. 516, Kocman, Kocman sued both TDADS and the State Mexia writ); (Tex.Civ.App.-Waco no see granted School. trial court The TDADS’s Corp., also Willis Nucor 282 S.W.3d motion to dismiss. pet.). (Tex.App.-Waco appeal, argues In two on issues Salais technically Winston’s the trial court in granting erred “no re opposed being deficient —as to TDADS’s motion to dismiss pursuant qualifi port” report lacks —because section of the Texas 74.351 Civil Practice give an on causa opinion cations denying and Remedies Code and erred in appropriate is thus this tion. It to remand for a request 30-day Salais’s extension to the trial court so it can exercise its case 74.351(c) pursuant to section of the Texas thirty-day grant discretion whether to a and Civil Practice Remedies Code. attempt so that can extension Salais Heart, deficiency. cure this See Austin Dismissal 284-85; re see In Bust also Section 74.351 of the Civil Practices and (Tex.2008) (“A er, provides Remedies that within Code by will some unqualified expert days filing, a claimant must serve good- (though always) reflect times curriculum vitae and one or more 30-day justify faith effort sufficient to reports every against regarding defendant extension.”). whom a health claim is asserted. Accordingly, we sustain the second issue 74.351(a) & Tex. Civ. Prac. Rem.Code Ann. court and remand this cause to the trial (Vernon has “Section 74.351 Supp. instruction to and rule with the consider subparts, including: numerous exten- thirty-day on Salais’s motion for a (cid:127) (b) deficiency in attempt sion to to cure the requiring trial courts to subpart report. Dr. Winston’s award prejudice dismiss a claim with been expert report fees if “an has not dissenting. Justice GRAY Chief deadline; statutory served” GRAY, Justice, dissenting. TOM Chief (cid:127) (c) exten- allowing 30-day subpart found deadline if a appeals Ana Maria Gonzalez Salais sion of the judgment dismissing inadequate; her trial court’s *11 538 Palacios,
(cid:127) (l) 52; at that a motion 79 at 46 S.W.3d subpart providing S.W.3d “Rather, adequacy should be the challenging report’s expert explain 879. the must repre- only report if the does granted to link his conclu- basis his statements the comply effort to with good-faith sent a Ratliff, to the facts.” Earle v. 998 sions Funderburk, v. 253 statute.” Lewis (Tex.1999). 882, 890 S.W.2d (footnotes (Tex.2008) omit- 207 S.W.3d We review a trial court’s order dismiss ted); Prac. & Ann. Tex. Civ. Rem.Code the ing comply a claim for failure to with (i) (Vernon 2009). 74.351(b), (c), Supp. § requirements an report under considering a motion to dismiss When Bowie, 79 abuse-of-discretion standard. 74.351, the for the trial under section issue Palacios, 52; at 46 at 878. S.W.3d S.W.3d report represents the court whether Expert reports that omit at least one of the statu- good-faith comply effort with specifically require the three enumerated tory expert report. definition of an See expert report of an cannot consti ments Hosp. Wright, Bowie Mem’l good tute a faith effort to meet the statu (Tex.2002); American Transitional tory requirements. Jernigan See Tex., Palacios, Inc. v. Care Ctrs. of (Tex.2006); Langley, 195 S.W.3d (Tex.2001). “expert An S.W.3d Palacios, 46 at 879. report” means: report by pro- A written provided reports Salais two to serve as summary expert’s a fair of the vides expert report. report pre- her One was of the date of the opinions as Wohlers, pared by paramedic James regarding standards of Nebraska, alleged from which Salais ad- care, ren- the manner which expert report dressed the elements of the by physician dered or health care standard of care and the breach of that provider failed to meet standards The other report prepared standard. was relationship and the causal between that Winston, by physician Donald from harm, injury, damages failure and the or alleged Houston. Salais re- Winston’s claimed. port addressed the causation element. Tex. Prac. & Ann. Civ. Rem.Code complains, agree, TDADS and I that Dr. (Vernon 74.351(r)(6) Supp. To report wholly Winston’s fails to address effort,” “good-faith constitute a the causation element. care, breach, must discuss standard Assuming deciding without that Dr. specificity and causation with sufficient (1) Winston is otherwise to render an purposes: fulfill two to inform the de- causation, opinion on he does not. Dr. specific plaintiff conduct the fendant (2) question; provide has called into Winston states that he re- a basis for the trial court to conclude that autopsy report viewed the of Ruben Gon- Bowie, merit. Then, the claims have 79 S.W.3d zalez and the death certificate. he Palacios, 52; at at 879. that, although he simply disagrees states the nine on Gon- pathologists with whether expert’s The must include the for his own part responsible zalez was opinion on each of the three elements that death, with them in their conclu- agrees he care, the statute identifies: standard sion that it homicide caused re- Bowie, breach, relationship. and causal “im- 52; Palacios, asphyxiation straint and mechanical at posed on him the three Mexia State merely expert’s A report cannot state Borne, employees.” these School conclusions about elements.
539 Dr. alleged What Winston fails do is draw the breach injury. and the According- explain connection or the causal link be ly, I would hold that Dr. Winston’s report negligent specific tween the actions of a does not meet the requirement of an ex- (the health care elements of provider stan pert report because there nothing in the by dard of care and breach as described report that addresses the causal connec- Wohlers, the other purported expert) and tion by between the breach the Mexia (Gonzalez’s death). damages/injury In State School employees of the standard of words, other report on causation must allegedly care as contained in Wohlers’s make the by connection that the death report the injury, the death of Gonza- asphyxiation mechanical was caused lez, claimed. The causation element has Wohlers, conduct described assuming been omitted from the report. that was in adequately presented the other Because Salais’s expert reports omit at Bowie, expert report. See 79 at S.W.3d least one of the specifically three enumer- 53. Because Dr. Winston did not indicate (r)(6), ated requirements of subsection he had purported reviewed other ex they cannot good constitute a faith effort pert’s report, required this connection is to meet those requirements. I need not Further, simply missing. it impermissi objections decide TDADS’s to Wohlers’s ble to infer that the conduct referenced in report. Accordingly, because the trial report one is the for the basis conclusions court did not abuse its discretion in grant- Heart, report. in the other See Austin ing TDADS’s motion to dismiss Salais’s Webb, 276, (Tex. P.A. v. 279 TDADS, against suit Salais’s first issue 2007, App.-Austin pet.). no should be overruled. Winston’s is similar to an expert report discussed Shaw v. B.M.W. Continuance
Healthcare, Inc.,
(Tex.App.-
fort to meet *13 can, nevertheless, court report, the trial cure the defi- extension to grant 30-day Texas, The STATE of State. extension, the such an ciency. grant To No. 2-09-215-CR. the to- have to consider trial court would surrounding the circumstances tality of the Texas, of Appeals Court of such as the diffi- preparation report, Fort Worth. plaintiff culty, any, if encountered Aug. 2010. necessary experts or obtaining necessary for the medical records getting Discretionary Review Granted review, diligence Dec. spe-
plaintiff securing claim,
cific of healthcare type 30-day would have
whether a extension defect, plaintiff to cure the
allowed deficiency prof-
the extent of the report. This list of considerations is
fered
by no means exhaustive. case, pro
But in this we have not been any from which we could
vided record
review the trial court’s determination. Be review, Salais
cause we have no record to support complaint
is unable to that the in failing
trial court abused its discretion 30-day See In the grant extension. (Tex. D.W.,
Interest (because 2008, no App.-Fort pet.) Worth on to extend hearing
no record motion deadline, presumes
dismissal court evi supported ruling
dence trial court’s and no shown).
abuse of discretion
Salais’s second issue should be over-
ruled.
Conclusion issue,
Having overruled each I would interlocutory
affirm the order of dismissal
of the trial court. Because the Court does
not, I respectfully dissent.