in the Interest of H.H.H. and E.A.H., Children

• Court: Court of Appeals of Texas
• Decided: October 4, 2006
• Docket: 06-06-00093-CV
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-06-00093-CV

IN THE INTEREST OF

H.H.H. AND E.A.H., CHILDREN

On Appeal from the 76th Judicial District Court

Titus County, Texas

Trial Court No. 31,854

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

Dwane Eric Hotz has filed an appeal from the termination of his parental rights to H.H.H. and E.A.H. We have now reviewed the clerk's record. Section 263.405(b) of the Texas Family Code requires an appellant to file, not later than the fifteenth day after a final order is signed, a statement "of the point or points on which the party intends to appeal." Tex. Fam. Code Ann. § 263.405(b) (Vernon Supp. 2006). The Legislature added a new subsection, effective for appeals filed after September 1, 2005, which provides that 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 . . . ." Tex. Fam. Code Ann. § 263.405(i) (Vernon Supp. 2006). Here, the judgment was entered August 21, 2006, and the notice of appeal was filed September 11, 2006.

The clerk's record contains no statement of points to be raised on appeal. We have contacted the district clerk's office, and no such statement, either standing alone or with a motion for new trial, exists. The statute does not terminate our jurisdiction over the appeal. However, in a situation such as this, where no statement of points exists, under the express terms of the statute, there is no contention of error that can be raised that we may consider on appeal. ⁽¹⁾

We affirm the judgment.

Jack Carter

Justice

Date Submitted: October 3, 2006

Date Decided: October 4, 2006

1.

We note that our sister court in Fort Worth and Justice Vance at the court of appeals in Waco have questioned the practical applications and constitutionality of this statute. See In re D.A.R., No. 2-06-043-CV, 2006 Tex. App. LEXIS 7063 (Tex. App.--Fort Worth Aug. 10, 2006, no pet. h.); In re E.A.R., No. 10-06-00037-CV, 2006 Tex. App. LEXIS 5092, at *3 (Tex. App.--Waco June 14, 2006, no pet. h.) (Vance, J., concurring).