Summaries of Civil Opinions and Published Criminal Opinions Issued - Week of July 16, 2012

NOTE: Summaries are prepared by the court's staff attorneys and law clerks for public information only and reflect his or her interpretation alone of the facts and legal issues. The summaries are not part of the court's opinion in the case and should not be cited to, quoted, or relied upon as the opinion of the court.

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In re A.J.M., No. 02-11-00137-CV  (July 16, 2012)   (en banc) (Livingston, C.J., joined by Gardner and McCoy, JJ.; Dauphinot, J., concurs and dissents with opinion, joined by Meier, J.; Walker, J., concurs with opinion, joined by Gabriel, J.).    [Note: all three opinions are at the same link.]

Held:  The prior opinion in this case was in error because the panel should have followed this court's en banc opinion in In re D.W., 249 S.W.3d 625, 640, 645 (Tex. App.—Fort Worth), pet. denied, 260 S.W.3d 462 (Tex. 2008), and addressed Appellant's first issue regarding the trial court's refusal to extend the dismissal date under section 263.401 of the Texas Family Code. The trial court did not err by refusing to extend the dismissal deadline and continue the trial because Appellant did not show sufficient extraordinary circumstances or that it would be in the children's best interest. In addition, the evidence was factually sufficient to support the trial court's findings on endangerment and best interest of the children.

Dissent and Concurrence:  Because the supreme court and this court have implicitly rejected D.W., we should follow the controlling statute, former section 263.405(i) of the family code, and hold that Appellant forfeited his first issue on appeal by not specifically presenting it to the trial court in his statement of points.

Concurrence:  Because in the present case, Father raised in his appeal and in his statement of points an issue arguing that family code section 263.405(i) violates the separation of powers provision of the Texas constitution, I would hold that Father made an as-applied challenge to the constitutionality of section 263.405(i), and based on our holding in D.W., I would reach the merits of his issues.

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