Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:K.D.’s parental rights to her minor child were terminated in a suit instigated by the Texas Department of Protective and Regulatory Services. K.D. was represented by court-appointed counsel. A new attorney was appointed to represent K.D. on appeal. In her statement of points on appeal, K.D. said that her new attorney could not make specific points until the court reporter’s record had been prepared. K.D. said generally that she might be raising issues of sufficiency of the evidence and ineffective trial counsel. K.D. also filed a notice of appeal, a motion for new trial, an affidavit of inability to pay costs and a motion for free clerk’s and reporter’s records. The trial court held an evidentiary hearing under Texas Family Code 263.405. The trial court denied the motion for new trial and then found K.D.’s appeal frivolous, both under 263.405 and Texas Civil Practice & Remedies Code 13.003. K.D. then perfected her appeal to this court, where she argues that 263.405 is unconstitutional, because it denies an indigent appellant the right to a meaningful review of a trial court’s determination that her appeal is frivolous. She argues the frivolousness finding also denies the indigent appellant the right to a free record of the underlying trial. Without a trial record, appellate review is meaningless, she concludes. HOLDING:Affirmed. In considering whether 263.405 violates K.D.’s (and other indigent appellants’) equal protection rights, the court reviews the terms of the statute. The court finds that a plain reading of the statute demonstrates that the Legislature intended that a parent whose parental rights have been terminated receive either: 1. a normal accelerated appeal after a finding by the trial court that the appeal is not frivolous, or 2. an appeal from the trial court”s determination that the appeal is frivolous. The court then cites the test set out in 13.003 for determining whether a party is entitled to a free record. Thus, a trial court”s determination that an appeal is frivolous has two effects, the court finds. First, it limits the scope of appellate review to the trial court”s determination that the appeal is frivolous under 263.405(g). This effect applies regardless of whether the appellant is indigent. Second, it denies an indigent appellant the right to a free clerk”s and reporter”s records of the underlying trial under 13.003(a)(2)(A); and this effect applies only when an appellant is indigent. “Once the trial court determines that the appeal is frivolous, the scope of appellate review is limited to the trial court’s determination that the appeal is frivolous. . . . 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, and nothing suggests that an appellate court may consider anything other than those limited records in its review of the trial court’s frivolousness finding. Therefore, an appellant is guaranteed the same limited review of a frivolousness finding regardless of whether the appellant is indigent.” The court thus rejects K.D.”s equal protection challenge to 263.405. The court next turns to K.D.’s due process challenge to the same statute. The court rebuffs K.D.’s reliance on a Mississippi case that allowed such a challenge. The court points out that, at the time under Mississippi law, there was no mechanism for bringing in forma pauperis appeals in civil cases. That is not the case in Texas. The limited right to appeal a frivolousness determination, coupled with the free record of the frivolousness hearing required by 263.405(g), furthers the Legislature”s intent to reduce delay, the court says, but still jibes with due process and equal protection guarantees. The court then turns to review the trial court’s determination that K.D.’s appeal was frivolous. First, because K.D.’s application for a court-appointed attorney is undated, the court cannot determine whether the delay in appointing that counsel was unconstitutional. In fact, the court says, it can’t even be established whether there was any delay at all. Second, even assuming that four witnesses that K.D.’s trial attorney did not call on K.D.’s behalf would have given positive testimony, the court finds no abuse of discretion by the trial court in its finding K.D.’s ineffective assistance of counsel argument on appeal was frivolous. Finally, the court also finds no abuse of discretion in the trial court’s finding that K.D.’s challenge to the factual and legal sufficiency of the evidence against her was frivolous. OPINION:Anne Gardner, J.; Gardner, Walker and McCoy, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.