Opinion issued on October 9, 2009
In The
Court of Appeals
For The
First District of Texas
NO. 01-07-00867-CV
FREDERICK DEWAYNNE WALKER,
Appellant
V.
TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Appellee
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Cause No. 2006-06952J
opinion Dissenting to denial of en banc consideration
The standard set forth in TRAP 41.2(c) regarding an appellate court’s en banc consideration of a case speaks to “extraordinary circumstances requiring en banc consideration.”
It is my position that both the panel’s opinion and dissent thereto, illustrate the case to be worthy of the additional analyses to be obtained from the full court. Here the issue reduces to what action or absence of action by counsel constitutes “an actual or constructive denial” of “any meaningful assistance of counsel” in light of Burdine v. Johnson. 262 F.3d 336 (5th
Cir. 2001). I believe it to be an extraordinary circumstance that no appellate court has addressed this issue with respect to the denial of effective assistance of counsel in termination of parental rights cases.
The level of public scrutiny upon Texas jurisprudence in this area of effective assistance of counsel is already heightened due, in part, to the Court of Criminal Appeals’ much-maligned Burdine decision in the criminal context and given the particular factual circumstances of this case, at the very least, we should accord it the attention of the full court.
For this reason, I respectfully dissent to the denial of en banc consideration.
Jim Sharp
Justice
Panel consists of Justices Jennings, Hanks, and Bland.
En banc consideration was requested. See Tex. R. App. P. 41.2(c).
Chief Justice Radack and Justices Jennings, Keyes, Hanks, Higley, Bland, Sharp, and Massengale participated in the vote to determine en banc consideration.
A majority of the Court voted to deny en banc consideration. See Tex. R. App. P. 49.7.
Justice Sharp, dissenting from the denial of en banc consideration.
Justice Alcala recused herself and did not participate.
Publish. Tex. R. App. P. 47.2(b)