Woodard v. Texas Dept. of Human Resources, 8953

• Decision Date: 30 October 1978
• Docket Number: No. 8953,8953
• Citation: 573 S.W.2d 596
• Parties: Sandra WOODARD, Appellant, v. TEXAS DEPARTMENT OF HUMAN RESOURCES, Appellee.
• Court: Texas Court of Appeals

Page 596

573 S.W.2d 596

Sandra WOODARD, Appellant, v. TEXAS DEPARTMENT OF HUMAN RESOURCES, Appellee.

No. 8953.

Court of Civil Appeals of Texas, Amarillo.

Oct. 30, 1978.

Rehearing Denied Nov. 27, 1978.

Walter P. Wolfram, Amarillo, for appellant.

George N. Harwood, Asst. Potter County Atty., Miller & Miller (John H. Tull, Jr., Guardian Ad Litem for Children), Amarillo, for appellee.

REYNOLDS, Justice.

Judgment terminating a parent-child relationship was rendered upon a jury's findings of factual issues from a preponderance of the evidence as required by the Texas Family Code. The standard of proof is challenged as being fundamentally erroneous because a federal district court has declared that the Code-required standard of proof is unconstitutional and that the proof must be measured by the clear and convincing standard. We affirm under the Texas Supreme Court's direction that in civil cases issues of fact are resolved from, and may not be submitted to the jury requiring a higher degree of proof than, a preponderance of the evidence.

As material to the appellate issue, this action was instituted by the Texas Department of Human Resources to terminate the parent-child relationship between Sandra Kay Bush Woodard and five of her natural children. The Department alleged that Sandra knowingly violated two of the conditions for which Tex.Fam.Code Ann. § 15.02 (Vernon 1975) authorizes a termination of the parent-child relationship. Sandra demanded a jury trial.

The trial court, as required by Sec. 11.15 of the Code, charged the jury to make its findings on the special issues submitted from a preponderance of the evidence. No objection was made to the charge at any stage of the trial proceedings.

The jury found the existence of facts which statutorily authorize the termination of the parent-child relationship. Receiving the jury's verdict, the trial court rendered its judgment terminating the parent-child relationship between Sandra and her five-named natural children. ¹

Sandra appeals, contending that it was fundamental error for the court to charge the jury to make its findings from a preponderance of the evidence. Her contention is based on the decision in Sims v. State Department of Public Welfare, 438 F.Supp. 1179 (S.D.Tex.1977), Appeal pending sub nom. Moore v. Sims, --- U.S. ----, 99 S.Ct. 306, 58 L.Ed.2d 317 (1978). In Sims, a three-judge federal district court held that in any suit affecting the parent-child relationship, the fundamental right to family integrity requires the state to prove its case by clear and convincing evidence, and expressly found that Sec. 11.15 of the Family Code is unconstitutional on its face because its preponderance standard of proof is violative of due process. 438 F.Supp. at 1194-95.

The error now alleged was not raised in the trial court, and it may not be raised for the first time on appeal unless it is truly fundamental. Newman v. King, 433 S.W.2d 420, 421 (Tex.1968). In this connection, it has been written that error which directly and adversely affects the interest of the public generally is fundamental, Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979, 983 (1947), and that the interest of the public is affected when the custody of a child is at issue. Wicks v. Cox 146 Tex. 489, 208 S.W.2d 876, 878 (1948). See also Hollis v. Hollis, 508 S.W.2d 179, 182 n. 1 (Tex.Civ.App. Amarillo 1974, no writ). Accordingly, if it was error to charge that the preponderance standard of proof applied, the error is fundamental.

Respectful consideration is due a lower federal court decision, and it is accorded the decision in Sims v. State Department of Public Welfare, supra ; yet, as was held in United States ex rel. Lawrence v. Woods, 432 F.2d 1072, 1075-76 (7th Cir. 1970), Cert. denied 402 U.S. 983, 91 S.Ct. 1658, 29 L.Ed.2d 148 (1971), in circumstances somewhat similar to those existing in the present appeal, state courts are not concluded by a lower federal court decision on an identical question of law which arises in a later unrelated cause. The rationale expressed is that while the state courts and lower federal courts are subject to the supervisory jurisdiction of the United States Supreme Court as the final arbiter on all questions of federal constitutional law, there is a parallelism, but not paramountcy, for both the state courts and the lower federal courts in passing on federal constitutional questions. 432 F.2d at 1075-76. Accord, Owsley v. Peyton, 352 F.2d 804, 805 (4th Cir. 1965), which holds that states are not obliged to follow decisions of the federal circuit court whose circuit includes their state.

Conformably, Texas, and the majority of the states recorded in 147 A.L.R. 857, follow the rule that state courts are not bound by the decisions of the lower federal courts, even though a federal question is involved. Illustratively, Harrison v. Barngrover, 72 S.W.2d 971, 974 (Tex.Civ.App. Beaumont 1934, writ ref'd), Cert. denied, 294 U.S. 731, 55 S.Ct. 639, 79 L.Ed. 1260 (1935), declared: "It is true that this holding of the United States Circuit Court is not binding upon us here . . . ." The refusal of the writ of error was a holding by the Texas Supreme Court that "the principles of law declared in the opinion of the court (of civil appeals) were correctly determined." Brannon v. Pacific Employers Ins. Co., 148 Tex. 289, 224 S.W.2d 466, 470 (1949). Accord, Texas Oil & Gas Corporation v. Vela, 405 S.W.2d 68, 73-74 (Tex.Civ.App. San Antonio 1966), Set aside on other grounds, 429 S.W.2d 866 (Tex.1968), with the holding that the decision of the Fifth Circuit Court of Appeals, although persuasive, was not controlling in its interpretation of Texas law. Cf. Southwestern Greyhound Lines, Inc. v. Railroad Commission of Texas, 128 Tex. 560, 99 S.W.2d 263, 268 (1936), where the Texas Supreme Court, in construing a federal statute, gave no controlling effect to decisions of lower federal courts construing the same statute. And in a like manner, the Texas Court of Criminal Appeals, the state's court of last resort for criminal matters, has respectfully declined to be bound by the decisions of lower federal courts. Pruett v. State, 463 S.W.2d 191, 193 (Tex.Cr.App.1970); Andrade v. State, 470 S.W.2d 194, 197 (Tex.Cr.App.1971).

On the other hand and in the absence of a controlling decision by the United States Supreme Court, Texas courts of civil appeals are bound by the pronouncements of the Texas Supreme Court on the law. Stahl Petroleum Co. v. Phillips Petroleum Co., 550 S.W.2d 360, 368 (Tex.Civ.App. Amarillo 1977), Aff'd, 569 S.W.2d 480 (Tex.1978). "After a principle, rule or proposition of law has been squarely decided by the (Texas) Supreme Court . . . the decision is accepted as a binding precedent by the same court or other courts of lower rank when the very point is again presented in a subsequent suit between different parties." Swilley v. McCain, 374 S.W.2d 871, 875 (Tex.1964). And, until the Supreme Court states to the contrary, its pronouncement is the law on an expressed issue. Powell v. Jackson, 320 S.W.2d 20, 24 (Tex.Civ.App. Amarillo 1958, writ ref'd n. r....