In the Interest of R. W., II, K. W., C. W., and J. S., Children--Appeal from 71st District Court of Harrison County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-06-00106-CV
______________________________
IN THE INTEREST OF R. W., II, K. W.,

C. W., AND J. S., CHILDREN

 
On Appeal from the 71st Judicial District Court
Harrison County, Texas
Trial Court No. 05-0591
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION

April Tripp has filed an appeal from the termination of her parental right to R.W.,II, K. W., C. W., and J. S. 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 order of termination was signed October 17, 2006, and the notice of appeal was deemed filed on that same day. (1)

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. (2)

We affirm the judgment.

 

Jack Carter

Justice

 

Date Submitted: November 21, 2006

Date Decided: November 22, 2006

1. The original order of termination was signed September 29, 2006. The trial court signed an order of termination nun pro tunc October 17, 2006. Since the trial court signed the order nunc pro tunc within its plenary power, the date the nunc pro tunc order was signed is the date from which a relevant appellate time period will run. See Tex. R. App. P. 4.3(a). The notice of appeal was technically filed September 28, 2006. However, the Rules of Appellate Procedure provide that a prematurely-filed notice is deemed "filed on the day of, but after, the event that begins the period for perfecting the appeal." See Tex. R. App. P. 27.1. Therefore, we treat the notice of appeal as filed October 17, 2006.

2. We again 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.); 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.) (Vance, J., concurring).