JPMorgan Chase Bank, N.A. v. Stacie Wright ( 2010 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-08-00257-CV

JPMorgan Chase Bank, N.A.,

                                                                                    Appellant

 v.

Stacie Wright,

                                                                                    Appellee

From the 272nd District Court

Brazos County, Texas

Trial Court No. 02-000192-CV-272

MEMORANDUM  Opinion

Appellant has filed a “Motion to Dismiss Appeal.”  See Tex. R. App. P. 42.1(a)(1). It states that the “parties have entered into a complete settlement disposing of all issues raised” in this appeal.

Dismissal of this appeal would not prevent a party from seeking relief to which it would otherwise be entitled. The appeal is dismissed.

REX D. DAVIS

Justice

Before Chief Justice Gray,

            Justice Reyna, and

Justice Davis

Dismissed

Opinion delivered and filed February 17, 2010

[CV06]

ed.”  M.C. v. Tex. Dep’t Fam. & Prot. Serv’s., 300 S.W.3d 300, 304 (Tex. App.—El Paso 2008), disp. on merits, 300 S.W.3d 305 (Tex. App.—El Paso 2009, pet. denied).

It appears that no court has addressed whether subsection 161.103(e) is unconstitutional because it denies parents an opportunity to reconsider their decision to relinquish parental rights.  At least one appellate court has addressed the constitutionality of section 263.401, finding it to be constitutional.  See Tex. Dep’t Fam. & Prot. Serv’s. v. Dickensheets, 274 S.W.3d 150, 161 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (addressing separation-of-powers challenge).

We conclude that these two constitutionality issues warrant briefing.  See Tex. Fam. Code Ann. § 263.405(g) (“The appellate court shall review the records and may require the parties to file appellate briefs on the issues presented, but may not hear oral argument on the issues.”) (emphasis added).  Accordingly, within twenty days of the date of this order, Appellant shall file a brief on: (1) whether subsection 161.103(e) is unconstitutional because it denies parents an opportunity to reconsider their decision to relinquish parental rights; and (2) whether section 263.401 is unconstitutional because it arbitrarily requires a trial within eighteen months.  The Department’s brief shall be due within twenty days of the filing of Appellant’s brief.

Absent extraordinary circumstances, no motions for extensions of time to file briefs will be entertained.

PER CURIAM

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

(Chief Justice Gray does not join this order.  On the record and briefs currently on file with the Court, he would affirm the trial court’s determination that the appeal is frivolous.)

Order issued and filed May 4, 2011

Do not publish

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[1]               Instead of briefing the issues raised in his statement of points, Appellant’s brief argues that subsection 263.405(d) is unconstitutional because it allows the trial court to determine whether the appeal is frivolous, which thus interferes with or precludes an appellate court’s jurisdiction.  Because Appellant did not raise this issue in the trial court (in his statement of points on appeal), it cannot be raised for the first time on appeal.  See In re D.W., 249 S.W.3d 625, 631 (Tex. App.—Fort Worth 2008), pet. denied per curiam, 260 S.W.3d 462 (Tex. 2008); In re E.A.R., 201 S.W.3d 813, 814 (Tex. App.—Waco 2006, no pet.).  Appellant also appears to allege that subsection 263.405(g) is unconstitutional because it allows the trial court to refuse to provide a free record on appeal, thus preventing an appeal.  Because a clerk’s record and the reporter’s record from the hearing on Appellant’s motion for new trial have been filed, subsection 263.405(g)’s constitutionality is a moot issue, as it has not prevented Appellant from appealing the frivolousness finding.  See, e.g., In re M.V.G., --- S.W.3d ---, ---, 2010 WL 730366, at *11 (Tex. App.—Waco Mar. 3, 2010, no pet.) (on claim that section 263.405 was unconstitutional, noting that appellant did not identify any issue that statute prevented him from presenting for appellate review).