In the Interest of M.N.V., et al., Children--Appeal from 166th Judicial District Court of Bexar County

DISSENTING OPINION

No. 04-05-00894-CV

In the Interest of M.N.V., et al, Children ,

From the 166th Judicial District Court, Bexar County, Texas

Trial Court No. 2004-PA-01029

Honorable Karen H. Pozza , Judge Presiding

Opinion by: Rebecca Simmons , Justice

Dissenting opinion by: Sarah B. Duncan, Justice

Sitting: Catherine Stone , Justice

Sarah B. Duncan , Justice

Rebecca Simmons , Justice

Delivered and Filed: September 13, 2006

To be non-frivolous, an appeal must present an arguable basis for finding reversible error.See De La Vega v. Taco Cabana,Inc., 974 S.W.2d 152, 154 (Tex. App.-San Antonio 1998, order). The wrongful denial of a jury trial is reversible error only if "the case contains material fact questions." Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 667 (Tex. 1996). Appellant does not argue, and the record does not reflect, that this case contains a material fact question. Indeed, the record cannot possibly contain a material fact question since appellant does not even argue the trial court erred in finding grounds for termination and that termination would be in the children's best interest. Because the trial court's unchallenged findings establish both the grounds for termination and that termination is in the children's best interest, appellant's argument that the trial court erred in denying her a jury trial is necessarily frivolous. I therefore dissent to the majority's order to the contrary.

Sarah B. Duncan, Justice