Willett Concurrence in In Interest of J.O.A. (Tex. 2009) (statement of points requirement
for appeal from order terminating parental rights)
Majority Opinion in Interest of JOA, No. 08-0379 (Tex. May 1, 2009)(Medina)(termination of parental
rights appeal, constitutionality of statement of points requirement for appeal)
IN THE INTEREST OF J.O.A., T.J.A.M., T.J.M., AND C.T.M., CHILDREN; from Collingsworth County; 7th
district (07-07-00042-CV, 262 SW3d 7, 02-25-08)
The Court modifies the court of appeals' judgment, affirms the judgment as modified, and remands the
case to the trial court.
Justice Medina delivered the opinion of the Court.
Justice Willett delivered a concurring opinion. (pdf version of concurrence on court's web site)
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Willett Concurrence in In Interest of J.O.A | In re JOA (Tex. 2009)
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Argued October 14, 2008
Justice Willett, concurring.
I join the Court’s opinion but write separately to stress steps that trial courts can take to thwart
the sort of procedural gamesmanship that worries the Texas Department of Family and
Protective Services (DFPS). To recap, DFPS fears that any deviation from the hard-and-fast
rule that arguments not found in the statement of points are waived will entice counsel to
deliberately disregard error-preservation requirements in order to seize tactical advantage.
That is, calculating counsel might believe it’s effective assistance to argue ineffective
assistance, deliberately failing to file the required statement of points in order to strengthen
their clients’ positions on appeal. This is obviously a high-risk contrivance, for clients and
counsel alike: (1) risky for clients because the appellate court may balk and instead impute
counsel’s failures to the parent, whose appellate rights are then waived; (2) risky for counsel
because they may jeopardize their professional reputations, future court appointments, and/or
face malpractice claims or disciplinary actions.
I agree with the Solicitor General of Texas, who in an amicus curiae brief filed at the Court’s
invitation, states: “[O]bjectively unreasonable failures by counsel to preserve a client’s appellate
rights warrant opprobrium when the failures are inadvertent—and even more so when the
failures are deliberate.” While the risk of such manipulation may be low, it’s worth guarding
against, and trial courts can curb such opportunism any number of ways, including:
• Being more proactive in the post-judgment process.
Trial courts, after issuing an order terminating parental rights, can also issue unambiguous
instructions that set forth the steps parents and attorneys must take to preserve their appellate
rights and the attendant risks if they fail to do so.
• Specifically reminding trial counsel that while the trial may have ended, their duties have
not.
Failing to adequately preserve appellate rights by timely filing a statement of points could
constitute a breach of fiduciary duty to the client that spawns both malpractice claims and
disciplinary actions.
• Referring such cases to appropriate disciplinary authorities.
If suspicious of subterfuge or incompetence, trial courts should make clear that such actions
will trigger unpleasant consequences.
I trust that if trial courts are vigilant, making clear that intentional evasion of appellate
requirements will not be tolerated, much less rewarded, such gamesmanship will be rare.
Better still, this:, “Suddenly, as rare things will, it vanished.”[1]
________________________________
Don R. Willett
Justice
OPINION DELIVERED: May 1, 2009
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[1] Robert Browning, One Word More, st. 4 (1855).