Don Willett Dissent in
In Interest of MN, a Child, No. 07-0698 (Tex. Aug. 29, 2008)(Johnson)
(extension of time to submit statement of points for appeal in parental rights termination case)
I would (1) hold that court-made rules of procedure do not trump the
Family Code’s fifteen-day deadline and then, assuming preservation, (2)
confront head-on whether this statutory deadline violates Durham’s due-
process rights or any other constitutional provision.[1] Because the Court
does neither, I respectfully dissent.
IN THE INTEREST OF M.N., A CHILD; from Taylor County; 11th district
(11-06-00228-CV, 230 SW3d 248, 05-10-07)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without
hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that
court.
Justice Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht,
Justice O'Neill, Justice Wainwright, Justice Brister, Justice Medina, and Justice Green joined.
Justice Willett delivered a dissenting opinion.
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Dissent by Justice Willet in In Interest of M.N., a Child (Tex. 2008)
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Justice Willett, dissenting.
For better or for worse, the Legislature in Family Code section 263.405(b) set a firm fifteen-day
deadline for filing a statement of points for appeal. Reasonable people can dispute the efficacy
of this hard-and-fast deadline, but few can dispute its clarity.
I fully understand the Court’s desire for leniency in enlarging the fifteen-day deadline beyond the
statute’s terms. Appealing the termination of one’s parental rights is serious business, and
having such rights vanish because of a counsel’s (or pro se litigant’s) mis-calendaring is nigh
unfathomable. On the other hand, every day of childhood is irreplaceable, and society benefits
when children are placed in safe, secure and loving homes as quickly as possible.
The Legislature wanted these cases to proceed with alacrity, reducing post-judgment delay by
barring appellate consideration of tardy points. I would take lawmakers at their word: fifteen
days means fifteen days. Squeezing out delay, however, does not permit squeezing out due
process. It is one task to honor a fast-tracking statute’s unambiguous text and refuse to
judicially rewrite it under the guise of construction. It is quite another to examine whether that
text, however plain, unconstitutionally restricts due process or other guarantees. Terminating
parental rights cannot warrant terminating constitutional rights.
I would (1) hold that court-made rules of procedure do not trump the Family Code’s fifteen-day
deadline and then, assuming preservation, (2) confront head-on whether this statutory deadline
violates Durham’s due-process rights or any other constitutional provision.[1] Because the
Court does neither, I respectfully dissent.
_______________________________________
Don R. Willett
Justice
OPINION DELIVERED: August 29, 2008
[1] The Court today has granted a petition for review that challenges the fifteen-day deadline on
constitutional grounds. In re J.O.A., 51 Tex. Sup. Ct. J. ___ (Aug. 29, 2008). In that case, where
preservation of the constitutional issues is clear, each parent’s trial counsel withdrew from the
case after the trial court entered judgment. They never filed a statement of points before
withdrawing, and appellate counsel was not appointed until after the fifteen-day deadline had
passed.