IN INTEREST OF KD

• Decision Date: 24 August 2006
• Docket Number: No. 2,2
• Citation: 202 S.W.3d 860
• Parties: IN THE INTEREST OF K.D., a Child.
• Court: Texas Court of Appeals

202 S.W.3d 860

IN THE INTEREST OF K.D., a Child.

No. 2-04-349-CV.

Court of Appeals of Texas, Second District, Fort Worth.

Delivered: August 24, 2006.

Panel F: GARDNER, WALKER, and McCOY, JJ.

OPINION ON REHEARING

ANNE GARDNER, Justice.

1. Introduction

This appeal arises from the termination of Appellant's parental rights over her minor child, K.D. The department of family and protective services ("The Department") instituted termination proceedings. After a jury trial at which Appellant was represented by court-appointed counsel, the trial court signed an order terminating Appellant's parental rights.

The trial court appointed new counsel to represent Appellant with regard to her post-trial motions and appeal. Appellant then filed her statement of points on appeal with the trial court. Rather than state specific points, Appellant complained that her appellate counsel could not definitively state the points on appeal until the reporter's record of the trial was prepared. Appellant also stated that "sufficiency of the evidence will be challenged for the statutory grounds used to terminate and `best interest' grounds. Any other reasonable appealable issue will be brought to the attention of the court of appeals." Appellant then filed a notice of appeal, a motion for new trial, an affidavit of inability to pay costs, and motions for a free clerk's record and a free reporter's record on appeal.

The trial court conducted an evidentiary hearing under family code section 263.405(d). See TEX. FAM. CODE ANN. § 263.405(d) (Vernon Supp. 2006). The trial court denied the motion for new trial and found that Appellant's appeal was frivolous under section 263.405 of the family code and section 13.003 of the civil practice and remedies code. Appellant then filed an amended notice of appeal to include a challenge to the trial court's finding that her appeal was frivolous. The court reporter and court clerk filed records of the section 263.405 hearing with this court without advance payment from Appellant.

After issuing our original opinion and judgment in this appeal, we granted rehearing on our own motion and ordered the reporter's record of the trial. See In re M.R.J.M., 193 S.W.3d 670, 676 (Tex. App.-Fort Worth 2006, no pet. h.) (en banc)

(holding that under the separation of powers clause an appellate court has the authority to order preparation of all of the evidence in a termination case when necessary to review a trial court's determination that an appeal is frivolous).

III. Discussion

Appellant raises three points on appeal. Her first two points challenge the constitutionality of family code section 263.405. Her third point challenges the trial court's finding that Appellant's appeal is frivolous.

1. Constitutional issues

In her first two points, Appellant argues that family code section 263.405 violates the constitutions of the United States and Texas.¹ The gist of Appellant's argument is that section 263.405 of the Texas Family Code is unconstitutional because it treats an indigent party's appeal differently from a non-indigent party's appeal and because it makes a distinction between parents in a private termination case and parents in a termination case brought by the Department. Specifically, Appellant argues that the statute allows a trial judge to deny an indigent appellant a record of the trial, while a non-indigent appellant could purchase a record and provide it to the appellate court and that the statute subjects a parent whose parental rights have been terminated in a suit brought by the government to a hearing held by the trial court to determine whether his or her appeal is frivolous, while a parent whose parental rights have been terminated in a suit brought by an individual is able to freely appeal the termination order. We have resolved Appellant's constitutional challenges against her. See In re T.C. & G.C., No. 02-05-074-CV, 2006 WL 2167158, at * 3-4 (Tex. App.-Fort Worth Aug. 3, 2006, no pet. h.). For the reasons discussed below, we conclude that family code section 263.405 applies equally to indigent and to non-indigent parents and applies equally in termination suits initiated by the Department and by private individuals.

As we stated in In re T.C. & G.C., in addressing Appellant's constitutional challenges to family code section 263.405, we begin with the premise that, if possible, we must interpret section 263.405 in a manner that renders it constitutional. Id. (citing FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 873 (Tex. 2000); Quick v. City of Austin, 7 S.W.3d 109, 115 (Tex. 1998)). A party raising a facial challenge to the constitutionality of a statute must demonstrate that the statute always operates unconstitutionally. Wilson v. Andrews, 10 S.W.3d 663, 670 (Tex. 1999). In other words, a challenger must establish that no set of circumstances exists under which the statute would be valid. Id. In reviewing a facial challenge to a statute's constitutionality, we consider the statute as written, rather than as it operates in practice. See Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 626-27 (Tex. 1996)

.

Family code section 263.405 provides in relevant part:

(d) The trial court shall hold a hearing not later than the 30th day after the date the final order [terminating parental rights] is signed to determine whether:

(1) a new trial should be granted;

(2) a party's claim of indigence, if any, should be sustained; and

(3) the appeal is frivolous as provided by Section 13.003(b), Civil Practice and Remedies Code.

. . . .

(f) The appellate record must be filed in the appellate court not later than the 60th day after the date the final order is signed by the trial judge, unless the trial court, after a hearing, grants a new trial or denies a request for a trial court record at no cost.

(g) The appellant may appeal the court's order denying the appellant's claim of indigence or the court's finding that the appeal is frivolous by filing with the appellate court the reporter's record and clerk's record of the hearing held under this section, both of which shall be provided without advance payment, not later than the 10th day after the date the court makes the decision. The appellate court shall review the records and may require the parties to file appellate briefs on the issues presented, but may not hear oral argument on the issues. The appellate court shall render appropriate orders after reviewing the records and appellate briefs, if any.

TEX. FAM. CODE ANN. § 263.405(d), (f)-(g) (Vernon Supp. 2006).

Section 263.405 does not set out the test the trial court is required to apply to determine whether a party is indigent and is therefore entitled to a free record. See id. § 263.405(f). That test is set forth in section 13.003 of the civil practice and remedies code, which is captioned "Free Transcript of Statement of Facts on Appeal" and states in part:

(a) Subject to Subsection (c), a court reporter shall provide without cost a statement of facts and a clerk of a court shall prepare a transcript for appealing a judgment from the court only if:

(1) an affidavit of inability to pay the cost of the appeal has been filed under the Texas Rules of Appellate Procedure; and

(2) the trial judge finds:

(A) the appeal is not frivolous; and

(B) the statement of facts and the clerk's transcript is needed to decide the issue presented by the appeal.

TEX. CIV. PRAC. & REM. CODE ANN. § 13.003(a) (Vernon 2002).

Thus, juxtaposing family code section 263.405 and civil practice and remedies code section 13.003(a), a trial court's determination that an appeal is frivolous has two statutory consequences. First, under family code section 263.405(g), it limits the scope of appellate review to the trial court's determination that the appeal is frivolous. In re S.J.G., 124 S.W.3d 237, 243 (Tex. App.-Fort Worth 2003, pet. denied) (recognizing that, after a finding by the trial court that an appeal is frivolous, parent whose parental rights have been terminated may appeal trial court's frivolousness determination). Section 263.405(g)'s statutory limit on the scope of appellate review following a frivolousness determination applies equally to indigent and to non-indigent appellants. See TEX. FAM. CODE ANN. § 263.405(g). Second, under civil practice and remedies code section 13.003(a)(2)(A), a trial court's frivolousness determination has the consequence of denying an indigent appellant the right to a free clerk's record and reporter's record of the underlying trial. TEX. CIV. PRAC. & REM. CODE ANN. § 13.003(a)(2)(A). This second consequence, the statutory denial of a free appellate record to an indigent appellant, occurs, of course, only when the appellant is indigent. It is the disparate impact of this second statutory consequence of section 263.405(d)(3) frivolousness finding that Appellant argues is unconstitutional.

A close examination of the interplay between family code section 263.405(d), (f), (g) and civil practice and remedies code section 13.003(a)(2)(A) demonstrates that the second consequence is immaterial because of the first consequence. That is, once the trial court determines that an appeal is frivolous, the scope of appellate review is statutorily limited to a review of the trial court's frivolousness finding. TEX. FAM. CODE ANN. § 263.405(g); see also S.J.G., 124 S.W.3d at 243

. And section 263.405(g) mandates that the reporter's record and the clerk's record of the frivolousness hearing "shall be provided without advance payment" to the appellant. TEX. FAM. CODE ANN. § 263.405(g). Nothing in section 263.405 suggests that a non-indigent appellant has the right to file any record with an appellate court other than the reporter's record and the clerk's record of the frivolousness hearing. Therefore, an appellant is statutorily guaranteed the same limited appellate review of a trial court's frivolousness finding regardless of whether the...