New procedures for invoking this Court's jurisdiction are announced in the Court's published order. A new procedure to extend the time to invoke the Court's jurisdiction is announced in the Court's order. A new way to obtain a ruling from the Court when we do not have jurisdiction is announced by the Court's order. I will try to briefly explain each and why the announcements are in error.
I write this dissent in hope that other courts will not blindly follow the Court's announcements or holdings without their own deep and independent analysis of the basis and justification for the holdings. Because the Court's order is designated for publication, I felt compelled to not only issue a warning but to also distance myself from the multiple erroneous holdings of the majority.
OVERVIEW OF THE AREA Ignoring the Legislative Mandate In response to the final report by the Governor's Committee to Promote Adoption, the legislature addressed the problem of delay in the judicial process as it affected the lives of children, particularly those involved in suits involving the termination of parental rights. See HOUSE COMM. ON JUVENILE JUSTICE FAMILY ISSUES, BILL ANALYSIS, Tex. S.B. 181, 75th Leg., R.S. (1997). See also In re Bishop,8 S.W.3d 412, 416-417 (Tex.App.-Waco 1999, orig. proceeding). In 2001, to further this comprehensive effort, the legislature first attempted to limit the scope of our review on appeal of termination cases by adding Section 263.405 to the Texas Family Code. Acts 2001, 77th Leg., ch. 1090, § 9, eff. Sept. 1, 2001. The purpose of the Act was to address, among other items, post-judgment appellate delays. See HOUSE COMM. ON JUVENILE JUSTICE FAMILY ISSUES, BILL ANALYSIS, Tex. H.B. 2249, 77th Leg., R.S. (2001). See also In the Interestof D.R.L.M., 84 S.W.3d 281, 290 (Tex.App.-Fort Worth 2002, pet. denied.). Within *Page 459 section 263.405, the legislature included the following:
Not later than the 15th day after the date a final order is signed by the trial judge, a party who intends to request a new trial or appeal the order must file with the trial court a statement of the point or points on which the party intends to appeal. The statement may be combined with a motion for new trial.
TEX. FAM. CODE ANN. § 263.405(b) (Added by Acts 2001, 77th Leg., ch. 1090, § 9, eff. Sept. 1, 2001).1
Courts were quickly confronted with the argument that they could not address an issue on appeal because it had not been included in a timely filed statement of points. These courts essentially avoided the purpose of the statute by holding that the failure to include the issue in a statement of points did not impede our ability to conduct a review of the issue. Inthe Interest of D.R.L.M., 84 S.W.3d 281, 290 (Tex.App.-Fort Worth 2002, pet. denied). See Wall v. Tex.Dep't of Family Protective Servs., 173 S.W.3d 178,182 (Tex.App.-Austin 2005, no pet.); In the Interest ofS.P., 168 S.W.3d 197, 200 (Tex.App.-Dallas 2005, no pet.);In the Interest of K.M., No. 07-04-0442-CV,2004 WL 2826851, 2004 Tex.App. LEXIS 11108 (Tex.App.-Amarillo Dec. 8, 2004, order) (not designated for publication); In theInterest of T.A.C.W., 143 S.W.3d 249, 250 (Tex.App.-San Antonio 2004, no pet.); In re M.G.D., 108 S.W.3d 508,516 (Tex.App.-Houston [14th Dist.] 2003, no pet.).
The legislature, having watched what the courts had done with a centerpiece of its efforts to expedite the process, responded. The statute was amended to add subsection (i) which provides as follows:
(i) The appellate court may not consider any issue that was not specifically presented to the trial court in a timely filed statement of the points on which the party intends to appeal or in a statement combined with a motion for new trial. For purposes of this subsection, a claim that a judicial decision is contrary to the evidence or that the evidence is factually or legally insufficient is not sufficiently specific to preserve an issue for appeal.
TEX. FAM. CODE ANN. § 263.405(i) (Vernon Supp. 2007) (added in 2005).
The 2005 statutory amendment has been called "Draconian."Mikowski v. Dep't of Family Protective Servs., No. 01-07-00011-CV, 2007 WL 3038099, at *2, 2007 Tex.App. LEXIS 8309, *5 (Tex.App.-Houston [1st Dist.] Oct. 18, 2007, no pet. h.) (mem.op.); In re D.M., ___ S.W.3d ___, ___, No. 10-06-00407-CV, 2007 WL 2325815, at *5, 2007 Tex.App. LEXIS 6499, *17 (Tex.App.-Waco Aug.15, 2007, no pet.) (Vance, J., dissenting). It is not.
The statute is not easy to fully understand upon an initial reading of it. Further, its implementation can be a challenge to the judicial process, particularly when it must interface with existing laws (constitutions, statutes, rules of civil and appellate procedure, and case law). We should not, however, shrink away from the challenge to enforce the statute. The statute is, by definition, the will of the people. These are the same "people" who have entrusted us with the responsibility to do just that-enforce the statute as written.
I contend that the rules announced by this Court's order fail to enforce the statute as written. The Court lengthens the process and thereby frustrates the purpose of the statute.
BACKGROUND This is an attempted appeal of a trial court's judgment which terminated the parental *Page 460 rights of Donald Taylor to two children. Because this suit was instituted by the Department of Family and Protective Services, the appeal is governed by section 263.405 of the Texas Family Code. TEX.FAM. CODE ANN. § 263.405(a) (Vernon Supp. 2007).
THE SCHEDULE It may assist the reader to understand how tightly the timeline of a termination appeal is constructed. Any litigant, attorney, or trial court must be familiar with this basic timeline. As with almost every timeline, failure to strictly adhere to this timeline can lead to the loss of valuable rights. The following chart does not purport to have every possible event on it but is designed to assist the reader in the comprehension of the general timeline for appeal of a termination of parental rights judgment.
Post-Termination Timeline
1 TJD Termination Judgment Date — date order of termination is signed 2 TJD+15 Request/motion for new trial due — § 263.405(b)(1)2 3 TJD+15 Statement of Points due — § 263.405(b)(2) 4 TJD+20 Notice of Appeal due — TEX. R. APP. P. 26.1(b) 5 TJD+20 Affidavit of Indigence due — TEX. R. APP. P. 20.1(c)(1) ("AD")3 6 AD+10 Contest to affidavit of indigence, if necessary, due — TEX. R. APP. P. 20.1(e)*Page 461
7 TJD+30 Hearing (30 day hearing) to decide: a) whether to grant a motion for new trial; b) whether the appealing party is indigent; and c) whether the appeal is frivolous — § 263.405(d) 8 TJD+36 Absent written ruling from 30 day hearing, indigence is presumed and counsel shall be appointed — § 263.405(e) 9 30 Day Reporter's record and clerk's record from the 30 Hearing day hearing must be filed in the appellate court — § date+10 263.405(g) 10 TJD+60 Appellate record must be filed, unless after the 30 day hearing: a) a new trial was granted; or b) the trial court denied a free record (not indigent) — § 263.405(f)A NEW WAY TO INVOKE JURISDICTION The legislature may be as surprised as I was to learn they created a whole new way for litigants to invoke our jurisdiction in state-initiated termination of parental rights cases to review the indigence and frivolous determinations.
The majority has determined the legislature defined the manner in which our jurisdiction is invoked to review the indigence and frivolous determinations, section 263.405(d)(2) and (3), made by the trial court. The manner defined, as interpreted by the majority, is by filing the record from the 30 day hearing with the appellate court. This is the part of the timeline which must be done within 10 days of the date of the order denying indigent status and finding the appeal frivolous. (See items 7 and 9 in the timeline.) Thus, according to the majority, the failure to timely file the record from the 30 day hearing fails to invoke our jurisdiction to review the order denying indigent status and finding the appeal frivolous. Further, according to the majority, a notice of appeal of the order denying indigent status and finding the appeal frivolous will not get the job done (to invoke our jurisdiction).
This new method of invoking our jurisdiction, a statutory method, by filing the record within 10 days of the order, temporarily extends the majority's ability to proceed in the face of not having a notice of appeal. But this temporary extension runs headlong into a new problem in this case — the 30 day hearing record was not timely filed and there was nothing actually done to extend the time in which to file it.
The reason this new method for invoking our jurisdiction may surprise the legislature is they started § 263.405 with the following provision:
(a) An appeal of a final order rendered under this subchapter is governed by the rules of the supreme court for accelerated appeals in civil cases and the procedures provided by this section. The appellate court shall render its final order or judgment with the least possible delay.
TEX. FAM. CODE ANN. § 263.405(a) (Vernon Supp. 2007).
The rules of appellate procedure provide:
25.1. Civil Cases
(a) Notice of Appeal. An appeal is perfected when a written notice of appeal is filed with the trial court clerk. . . .
(b) Jurisdiction of Appellate Court. The filing of a notice of appeal by any party invokes the appellate court's jurisdiction *Page 462 over all parties to the trial court's judgment or order appealed from.
TEX.R.APP. P. 25.1(a) and (b).
According to the majority, the 30 day hearing record must be filed to invoke the Court's jurisdiction to review questions of whether the determination regarding indigence and the determination that the appeal of the points on appeal is frivolous. I believe the legislature was, however, defining the scope of what we review on appeal of these narrow issues, rather than defining how our jurisdiction to review the trial court's order is invoked. I therefore do not agree with the majority's announcement of how to invoke our jurisdiction to conduct this review.
NEW PROCEDURE TO EXTEND STATUTORY TIME PERIOD But according to the majority, the Court's jurisdiction to review the order is invoked, according to the statute, by the filing of the record of the 30 day hearing. The complete record was not, however, filed by the 10 day deadline in this appeal. The majority holds that the reporter's record from the 30 day hearing was timely filed under the appellate mailbox rule but recognizes that the clerk's record for the 30 day hearing was not received timely and that no extension of time to file the clerk's record was filed. Thus, to have jurisdiction under their theory, they must find something to extend the time to file the clerk's record.
But if the statute specifies the manner of invoking the Court's jurisdiction, the Court should then first look to the statute for the manner in which to modify the manner in which the Court acquires jurisdiction. Instead, however, the majority first looks to the Texas Rules of Appellate Procedure and the case law interpreting those rules to find a way to extend the time in which to file the record.
No motion to extend the time in which to file the record was ever filed. Rather, what was filed that the majority relies upon, and even according to the majority was filed late, was a designation of what to include in the record — not the record and not a motion to extend the time in which to file the record. The majority does not address the analytical leap of how the late designation is a substitute for the record. They just do it. Accept it.
The majority tries to shore up the late filing of the record with an implied motion for extension of time to file the record. They use the Verburgt case, which holds that a late filed notice of appeal, but filed within the 15 day period to file a motion for extension of time to file the notice of appeal late, necessarily implies a motion for extension of time in which to file the notice of appeal. Verburgt v.Dorner, 959 S.W.2d 615 (Tex. 1997).
A couple of observations are appropriate. The implied motion for late filing in Verburgt is implied by the filing of the "thing" that is late — the notice of appeal. To even use the Verburgt concept by analogy, it would be the late filing of the record that would imply a motion for extension of time in which to file the record. I could see how the late filing of the designation of items to be included in the record could imply a motion for extension of time to file the designation late. But because the content of the record is described by the statute and specified by the rules of appellate procedure, see TEX. FAM. CODE ANN. §263.405(g) (Vernon Supp. 2007); TEX.R.APP. P. 34.5(a) and 34.6(a), I question whether the designation of items to be included could imply a motion to extend the time in which to file the record late. *Page 463
I contend that if our jurisdiction is invoked by the filing of the record pursuant to the statute, and not by a notice of appeal, the implied extension concept for a late filed notice of appeal and the implied motion for late filing are not applicable because they both arise from an interpretation of the rules of appellate procedure regarding the late filing of the notice of appeal. But there is a proper way to have the late filing of the record approved. The majority even refers to the statutory provision for late filing of the record but fails to use it to actually extend the time in which to file the record. Although I actually think the statute is for the late filing of the record on the merits, not the record from the 30 day hearing, I will mention how it should be used in their procedure because the majority references it.
The referenced statute provides that we are not to extend the time for filing of the record "except on a showing of good cause." TEX. FAM. CODE ANN. § 263.405(h) (Vernon Supp. 2007). Thus, the standard for us to extend the time to file the record is "good cause." The case/Texas-Rules-of-Appellate-Procedure standard for late filing of a notice of appeal is only to "reasonably explain the need for the extension." The majority has used the lower standard of a "reasonable explanation" and thus lowered the standard for allowing the late filing of the record, which according to the majority, is the legislatively mandated procedure for invoking our jurisdiction. If the legislature specified the filing of the record as the method to invoke our jurisdiction, surely the legislature can also specify the standard for granting an extension of time in which to file that record. Thus, I also disagree with the announcement of the procedure to extend the time in which to file the record.
A DECISION WITHOUT JURISDICTION Remember that through this statute, the rules of appellate procedure for filing a motion for extension of time, and case law related to implied motions to extend the time in which to file a notice of appeal (and a couple of analytical jumps), the majority has cobbled together a way that we can possibly have jurisdiction. But, according to the majority, we need just one more thing before we actually have jurisdiction and that is, under the lowered standard, a reasonable explanation for the late filing of the request for items to be included in the record. Maj. Op. pgs. 455-56. But the majority, after making the announcements of a new way to invoke our jurisdiction and a new way of how to extend the time in which to do that, then proceeds to a review of the merits of the indigency determination.
Whoa.
If it is the filing of the record that gives us jurisdiction to review the determinations and we do not yet have the explanation necessary to explain the failure to timely file the record necessary to give us jurisdiction, then how do we have jurisdiction to review, determine, and hold that the indigency determination was erroneous?
We don't.
The majority has simply forged ahead to review the merits of the trial court's determination that Taylor failed to prove he is indigent, notwithstanding their own holding that we are without jurisdiction to do so. I would not.
MERITS OF INDIGENCE DETERMINATION This brings us to the merits of the issue of whether Taylor met his burden of proving he is indigent which I comment upon only because the majority has gone beyond our jurisdiction and purported to decide the issue. The majority makes a number *Page 464 of missteps in its indigence review. Since we have no jurisdiction to decide this issue, and rather than belabor the points, I will simply list the primary missteps:
1. Failure to consider that the testimony of Taylor that he spends as much as he makes includes gas expense of $600 per month, which is testimony the trial court could have determined was not credible.4
2. Reliance on the contents of the indigence affidavit which was not introduced as evidence at the hearing.
3. Failure to consider that one of the vehicles Taylor owns is worth $8,000, had no debt owed on it, and he owned another vehicle that could be used for work if it was repaired and that the trial court could have considered this a resource to pay for some expense if Taylor truly wanted to do so.
4. We do not have all the record upon which the indigence determination was based.
Given the foregoing, and that there was no testimony of what the record would cost, nor what reasonable and necessary attorney fees would be, and that Taylor's position was that he could pay for no part of the record or attorney fees, I do not believe the trial court abused its discretion in determining Taylor failed to meet his burden of proof. It seems obvious that at the very least, he could have paid for some part or portion of the record.
AN OBSERVATION If, in this particular case, the Court ever properly gets to a review of the merits of the issues decided at the 30 day hearing, there is actually a legitimate reason to require the preparation of a reporter's record of the trial on the merits held on August 2, 8, and 16, as well as the 30 day hearing which has already been filed. Upon the Department of Family and Protective Services' request, the trial court, deciding the questions of (1) whether Taylor had proven he was indigent; and (2) whether Taylor's appeal was frivolous, was repeatedly requested to take judicial notice of the evidence of the trial on the merits held on those dates. The trial court eventually took judicial notice as requested. The trial court references this in its order. ("After considering the evidence presented both at trial and during this hearing as well as the argument of counsel, . . . ." CR pg. 57, Order of October 10, 2007) (emphasis added). Thus, the only way we can review the trial court's decision is to have before us the same information the trial court did, including the information of which the trial court took judicial' notice. The only way for us to do that is to have the reporter's record of the trial proceedings of which the trial court took judicial notice.
Notwithstanding that we need the reporter's record from the trial on the merits in this proceeding, I believe the method of presenting evidence at the 30 day hearing had the collateral effect of negating much of what the statute was intended to accomplish. I note that the procedure used by *Page 465 the parties in In re A.S., 239 S.W.3d 390, No. 09-07-236-CV, 2007 WL 2962929, 2007 Tex.App. LEXIS 8135 (Tex.App.-Beaumont Oct.11, 2007, no pet. h.) seems to be what was contemplated by the legislature. By this process, summaries or descriptions of the trial testimony are introduced at the 30 day hearing and are the basis upon which we then conduct our review of the indigence and frivolous determinations. If the summaries presented by the parties reflect disagreement over some critical aspect of the trial pertinent to the frivolousness determination, the appeal is probably not frivolous. See also In the Interest of R.M.G., No. 04-06-00319-CV, 2006 WL 3085757, at *1, 2006 Tex. App. LEXIS 11293, *3 (Tex.App.-San Antonio Nov.l, 2006, no pet.) (released for publication April 30, 2007) (Appellant "wholly failed to `summarize for the trial court the evidence that was missing or insufficient to sustain the findings' at the hearing on the motion for new trial and statement of appellate points."). And because the trial court took judicial notice of the evidence from the trial, and because there is no way for us to know there was not some evidence in the trial regarding Taylor's employment, earnings, and expenses, we should have the reporter's record from the trial for our review of the trial court's October 10, 2007 order — but it is not before us at this time.
CONCLUSION This entire process, not just this particular proceeding, needs some focus by the parties and some clarity provided by the courts. In this particular proceeding, I would, at the most, do what we have done in a similar situation when we determined that an indigency determination was a separately appealable order. See Nelson v. State, 6 S.W.3d 722, 726 (Tex.App.-Waco 1999, order). In that situation we held that a separate notice of appeal is required. Id. But, because of the confusion of whether the earlier filed notice of appeal on the merits of the issues for review of the order of termination satisfied the requirement to invoke our jurisdiction to review the order from the 30 day hearing, I would make the requirement to file a separate notice of appeal prospective — applying only to 30 day hearing orders decided after our order is published. See id.5 *Page 466
I would thus proceed to order up the record we need to conduct our review of the trial court's determinations of having failed to prove indigence and finding the appeal frivolous; and I would then conduct that review without briefs, as authorized by the statute to expedite the review and determination of these narrow issues. See TEX. FAM. CODE ANN. § 263.405(g) (Vernon Supp. 2007).
For these reasons, I respectfully dissent from the Court's order.
Q: Okay. Which would — break them [your expenses] down.
A: Rent, like maybe 400; gas for the vehicle, maybe around 600; water, about 60; lights, about 150; insurance, about 120. Let me see. I'm not legally obligated to pay my sister any child support, but I still give her money. So I guess that's another bill. And just personal items, like maybe $100 a month. (Emphasis added)
In this proceeding, I had conducted enough research to know that I dissented to the order. As I have continued to work on it and conduct more research, I have concluded, however, that I am no longer as confident as I was during my early research that the statute contemplated the need for a separate invocation of our jurisdiction, but rather a singular process from the termination judgment to an appellate mandate that may necessarily include a preliminary review of some issues under § 263.405(g). A close review of the timeline shows it is difficult, if not impossible, to have a separate notice of appeal for the indigence determination in these proceedings. It appears the legislature presumed that the single notice of appeal, which will normally be filed before the 30 day hearing, would be all the notice necessary to the other parties, trial court, clerk, and reporter that the parent intends to appeal all issues necessary to secure a reversal of the termination judgment. Thus, it would also be clear that if the result of the 30 day hearing is unfavorable to the appealing parent, the appealing parent will first be challenging the 30 day hearing order. In some regards, the appeal is thus bifurcated-wherein the first portion must run its course before we can proceed to the second portion. While this would mean that no separate notice of appeal is necessary to appeal the 30 day hearing order, it would also mean that the filing of the record is not what is necessary to invoke our jurisdiction to review that order. But due to the time constraints, all I can conclude today is that I do not agree with the majority's order and acknowledge that it may be that nothing other than a timely notice of appeal from the termination judgment is necessary to invoke our jurisdiction to review the collateral order of the trial court from the 30 day hearing. The parent asserting indigence after the termination judgment not only must timely file a notice of appeal, the parent must also timely take some action to advise the trial court that they are indigent and seek the assistance of appointed counsel and a free record.