in the Interest of L. L. and T. Y., Children

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IN THE INTEREST OF L.L. AND T.Y., MINOR CHIL

NO. 07-00-0545-CV



IN THE COURT OF APPEALS



FOR THE SEVENTH DISTRICT OF TEXAS



AT AMARILLO



PANEL C



NOVEMBER 14, 2001



______________________________





IN THE INTEREST OF L.L. AND T.Y., MINOR CHILDREN





_________________________________



FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;



NO. 97-559,790; HONORABLE JIM BOB DARNELL, JUDGE



_______________________________



Before QUINN and REAVIS and JOHNSON, JJ.

It being brought to the Court's attention that a reference in our opinion dated October 23, 2001, to the clerk's record was inaccurate, although not material to our disposition of the appeal, we withdraw our original opinion and, in lieu thereof, issue the following opinion. Our judgment of October 23, 2001 is unaffected.

Appellant Twila Young challenges the trial court's judgment signed September 8, 2000, following a jury trial, terminating her parental rights as to her daughters L.L. and T.Y. and appointing the Texas Department of Protective and Regulatory Services (TDPRS) permanent managing conservator of the children. (1) Presenting two issues, Young contends that reversal is required because the trial court had no authority to render the order, and because the order is a nullity under the provisions of the one final judgment rule. Based on the rationale expressed herein, we reverse and remand.

Young does not challenge the sufficiency of the evidence to support the jury's findings. Thus, only the facts relevant for disposition of this appeal will be presented. On January 23, 1998, TDPRS filed its petition to terminate the parent-child relationship between Young and her four children, to wit: two minor sons, J.Y. and D.Y., and two minor daughters, L.L. and T.Y. On May 14, 1998, the trial court conducted its first hearing, and on April 6, 2000, the court signed an order entitled Permanency Hearing Order which, among other things, determined that pursuant to section 263.306(11) of the Texas Family Code, the dismissal date of the cause shall be May 14, 2000. Although the case was set for trial on April 14, 2000, on that day, Young's counsel filed a motion for continuance and by order signed May 9, 2000, the case was reset for trial on May 12, 2000. Then, an agreement pursuant to Rule 11 of the Texas Rules of Civil Procedure signed by counsel for TDPRS, attorney and guardian ad litem for the children, CASA, and counsel for Young was filed on May 11, 2000, which in summary, provided:

  • •TDPRS was appointed temporary managing conservator of the four children on May 13, 1997;
  • •the statutory dismissal date under section 263.401(a) is May 15, 2000;
  • •the trial setting does not allow sufficient time for the petitioner or Young to prepare adequately for trial. The best interest of the children would be better served by allowing adequate time for trial preparation; agree that new dismissal date be set as September 15, 2000; and
  • •waived any objection to suit being continued; waived any right to file a motion or seek appellate remedy for failure to comply with section 263.401(a).

The trial court heard the case as to the biological fathers of the four children on May 12, 2000, and signed an order entitled Interlocutory Decree of Termination of the paternal rights of the biological fathers of all four children on July 19, 2000. By order signed July 28, 2000, the case was set for jury trial for September 5, 2000.

On September 6, 2000, the trial court signed an order entitled Agreed Final Order In Suit Affecting the Parent-Child Relationship, signed by Young and her counsel and others, which appointed TDPRS permanent managing conservator of Young's two sons. Then following a jury trial as to termination of parental rights to the two daughters only, on September 8, 2000, the trial court signed a second order entitled Order of Termination terminating Young's parental rights to L.L and T.Y. and appointing TDPRS permanent managing conservator of both girls. Young's notice of appeal is directed to the order of September 8, 2000, covering the girls and her brief does not present any issues regarding the boys.

By her first issues, Young contends the termination order must be reversed because the trial court rendered the order beyond the time allowed by section 263.401 of the Texas Family Code. We agree. By sections 102.003(6) and 101.002 of the Family Code, the Legislature granted TDPRS standing to prosecute actions to terminate parental rights of minor children. In proceedings where TDPRS is prosecuting an action to terminate parental rights the Legislature also mandated that a final order must be entered concerning the child no later than one year after the department becomes the temporary managing conservator of a child or the suit must be dismissed. In Re Neal, 4 S.W.3d 443, 445 (Tex.App.--Houston [1st Dist.] 1999, no pet.). Section 263.401(a) in part provides:

the court shall dismiss the suit affecting the parent-child relationship filed by the department . . . .



(Emphasis added). However, the Legislature did not condition the dismissal upon a motion to dismiss or defer dismissal based upon an agreement of the parties, a finding of good cause, or the like. By this Court's opinion published after the rendition of the order presently under review, we held that a Rule 11 agreement similar to the agreement presented here did not afford grounds to override the statutory requirement for dismissal of the proceeding on grounds of public policy. In Re T.M., 33 S.W.3d 341, 347 (Tex.App.--Amarillo 2000, no pet.).

TDPRS argues that because Young did not raise the issue in the trial court, it is not preserved for appellate review. See Tex. R. App. P. 33(a)(1). Here, however, the issue implicates the statutory duty of the trial court to dismiss an action and is not concerned with errors in the course of the proceeding attributable to appellee but not brought to the attention of the trial court by appellant. TDPRS's standing to prosecute the action to terminate parental rights is a creature of the Legislature and the Legislature has the power to impose time limitations similar to the requirement of section 263.401. It is not the duty of the courts to judge the wisdom of the policy choice of the Legislature or to impose a different policy. See Edgewood Independent Sch. Dist. v. Meno, 917 S.W.2d 717, 726 (Tex. 1995). Under the doctrine of separation of powers among the executive, legislative, and judicial branches of state government, Texas courts do not dictate to the Legislature how it should discharge its duty. Id. The term "shall dismiss" without any qualifications or exceptions imposed a mandatory duty on the trial court to dismiss the proceeding, and the Legislature did not provide for the exercise of any judicial discretion. Schepps v. Presbyterian Hosp. of Dallas, 652 S.W.2d 934, 938 (Tex. 1983). Because we are required to afford meaning to every word in a statute, Chevron Corp. v. Redmon, 745 S.W.2d 314, 316 (Tex. 1987), and cannot ignore the limitation imposed by the Legislature, acceptance of TDPRS's position would constitute an unwarranted judicial disregard for and avoidance of a clear legislative mandate, which we cannot do. Young's first issue is sustained. Our sustention of issue one pretermits our consideration of issue two. Tex. R. App. P. 47.1.

Accordingly, the judgment of the trial court is reversed and the cause remanded with instructions to dismiss the action as to L.L. and T.Y. in accordance with section 263.401(a) of the Texas Family Code.



Don H. Reavis

Justice





Publish.

1. At the time the judgment was signed the trial court did not have the benefit of our decision in In Re T.M., 33 S.W.3d 341 (Tex.App.--Amarillo 2000, no pet.).

NO. 07-09-00313-CR

 

IN THE COURT OF APPEALS

 

FOR THE SEVENTH DISTRICT OF TEXAS

 

AT AMARILLO

 

PANEL B

 

JULY 26, 2011

 

 

MELISSA D. LIVELY, APPELLANT

 

v.

 

THE STATE OF TEXAS, APPELLEE

 

 

 FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

 

NO. 2006-414,580; HONORABLE BRADLEY S. UNDERWOOD, JUDGE

 

 

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

 

 

MEMORANDUM OPINION

 

Appellant Melissa D. Lively appeals from her conviction by jury of two counts of aggravated assault with a deadly weapon and the resulting sentences of twenty years of imprisonment for each count.  Appellant contends the trial court erred in denying her motion to suppress.  The State cross-appeals, arguing the trial court erred in including an instruction pursuant to article 38.23 in the jury charge. We will affirm the trial court’s judgment.

            Appellant was indicted in separate counts for aggravated assault with a deadly weapon[1] against her two stepsons, Joe Lively and Danny Lively.  She was convicted of both counts.

            Before trial, appellant filed a motion to suppress evidence Lubbock police officers found after they entered appellant’s home without a warrant.  The trial court denied the motion after a hearing.  Appellant re-urged the motion at trial and it was again denied.  After trial, the court issued findings of fact and conclusions of law at appellant’s request. Among them were conclusions that the officers, when they entered appellant’s home, had probable cause to believe evidence of a crime would be found in the residence, and that exigent circumstances justified their immediate entry into the residence for the reasonably-perceived purpose of providing needed aid or assistance to Danny Lively.[2]

            Appellant’s husband Steve A. Lively also was prosecuted for aggravated assault of his sons with a deadly weapon, based on the same events that led to appellant’s conviction.  In his case, he sought to suppress the same evidence, resulting from the same search, as that addressed in appellant’s motion to suppress.  After his motion to suppress was denied, and after he plead guilty and a judgment of conviction was entered against him, he appealed his conviction to this court, asserting error in the denial of his motion to suppress.  We affirmed his conviction, finding the trial court did not abuse its discretion by denying his motion to suppress. Lively v. State, No. 07-10-00084-CR, 2010 Tex. App. LEXIS 7537 (Tex.App.—Amarillo Sept. 14, 2010, pet. ref’d) (mem. op., not designated for publication).  The Court of Criminal Appeals since has refused the petition for discretionary review filed by Steve A. Lively. In re Lively, No. PD-1516-10, 2011 Tex.Crim.App. LEXIS 248 (Tex.Crim.App. Feb. 9, 2011).

In our opinion in Steve A. Lively’s appeal, we found the officers had probable cause to believe the instrumentality or evidence of a crime would be found in the residence, and that the information gained and observations made during their encounters with the two boys raised objectively reasonable concerns for the physical welfare of Danny Lively and others, justifying the warrantless entry into the residence. Lively, No. 07-10-00084-CR, 2010 Tex.App. LEXIS 7537, at *4-*5. 

Although the State’s cases against appellant and her husband were tried separately, their separate motions to suppress were heard at the same pre-trial hearing, so the trial court heard the same testimony on each motion.  As noted, appellant re-urged her motion at trial, and her appellate brief points out some differences in the testimony from the suppression hearing and that at trial.  Having reviewed both the trial testimony and that at the suppression hearing, we do not find such inconsistency between them as to require discussion.  Moreover, appellant does not specifically challenge any of the trial court’s findings of fact. The findings of fact issued in this case are consistent with the factual discussion in our opinion in the appellant’s husband’s appeal.  Lively, No. 07-10-00084-CR, 2010 Tex.App. LEXIS 7537, at *1-*5.  Our discussion of the facts, and application of the law, in that appeal are equally applicable here.  Therefore, for the same reasons we stated there, we find the trial court did not abuse its discretion by denying appellant’s motion to suppress.  See State v. Ross, 32 S.W.3d 853, 855-56 (Tex.Crim.App. 2000); Lowrey v. State, 98 S.W.3d 398, 399 (Tex.App.—Amarillo 2003, no pet.), citing Guzman v. State, 955 S.W.2d 85, 87 (Tex.Crim.App. 1997) (stating standard of review). 

Appellant’s brief argues against the application to these facts of the emergency doctrine that is applicable when police act in their limited community caretaking role.  See Laney v. State, 117 S.W.3d 854, 861 (Tex.Crim.App. 2003) (explicating doctrine).  Because we must affirm the trial court’s denial of appellant’s motion if it was correct on any applicable theory of law, id. at 857, we need not address the application of the emergency doctrine.

For the reasons discussed, we overrule appellant’s sole issue.

State’s Cross-Appeal

            The State cross-appeals, arguing the trial court improperly included an article 38.23[3] instruction in the jury charge.  Because we will affirm appellant’s conviction, it is unnecessary also for us to address the State’s cross-appeal, as resolution of the issue would not alter the outcome of the appeal. See Armstrong v. State, 805 S.W.2d 791, 793 (Tex.Crim.App. 1991); Hargrove v. State, 774 S.W.2d 771, 772-73 (Tex.App.—Corpus Christi 1989, pet. ref’d) (both declining to address State’s cross-appeals when convictions affirmed).

 

We affirm the judgment of the trial court.

 

                                                                                                James T. Campbell

                                                                                                            Justice

 

Do not publish.

           

 


[1] See Tex. Penal Code Ann. § 22.02(a)(2) (West 2009).

 

[2] See, e.g., Gutierrez v. State, 221 S.W.3d 680, 685 (Tex.Crim.App. 2007) (describing probable cause and exigent circumstance requirements for warrantless searches made without consent).

[3] See Tex. Code Crim. Proc. Ann. art. 38.23 (West 2009).