DocketNumber： 06-08-00058-CV
Filed Date： 11/26/2008
Status： Precedential
Modified Date： 9/7/2015
Rickey Thompson and Sara Stokley appeal from the termination of their parental rights to B.L.T. There is an initial problem that we must address before examining the single point of error raised by counsel, whether we have jurisdiction to consider the point of error at all.
An appellate court reviewing a termination of parental rights on the State's petition "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. 2008). To be timely, the statement of points must be filed within fifteen days of the date of the final order; but a statement of points may be combined with a motion for new trial. Tex. Fam. Code Ann. § 263.405(b), (b-1) (Vernon Supp. 2008).
After judgment, Thompson and Stokley filed with the trial court only a motion for new trial. Though a statement of points may be made part of the same document as a motion for new trial, a motion for new trial that does not specifically include such a statement of points is not sufficient to allow our review of a termination. See In re J.M., No. 12-07-00371-CV, 2008 Tex. App. LEXIS 4871 (Tex. App.--Tyler June 30, 2008, pet. dism'd) (mem. op., not designated for publication). This motion for new trial made no effort to include a statement of points on appeal. Thus, we have no jurisdiction.
Even if we were allowed to imply a statement of points on appeal from the arguments made in the motion for new trial, this appeal must fail. The only portion of the motion for new trial that could be said to raise a statutorily sufficient and specific contention for a point on appeal, even under a lenient standard, states that the evidence was insufficient to show that Thompson and Stokley were "responsible for any of the events that allegedly put the child in danger."
By contrast, the sole point of error raised in the appellants' brief attacks the trial court's ruling "because medical testimony was put before the jury without expert testimony." On reviewing the substance of the argument, we glean that counsel complains the court erred by allowing the adoptive mother, a lay witness who professed to no medical expertise, to testify that the children had contracted sexually transmitted diseases.
The substance of the issue gleaned from the motion for new trial differs completely from the substance of the issue briefed on appeal. We could not stretch the issue raised in the motion for new trial sufficiently to cover the contention currently raised on appeal. As a result, even if we were allowed to consider an issue solely from a motion for new trial, we could not address the sole issue raised in Thompson and Stokley's brief.
We affirm the judgment of the trial court.
Josh R. Morriss, III
Chief Justice
Date Submitted: November 25, 2008
Date Decided: November 26, 2008
. According to a document entitled "Declaration of Ex[h]austion of Administrative Remedies," a second grievance investigator denied Teague's "step two grievance" May 28, 2003.
The defendants filed an answer to Teague's petition September 15, 2003. The defendants also requested the trial court dismiss Teague's petition for two reasons: First, Teague had allegedly failed to show he filed his lawsuit within the required thirty-day filing period. Second, Teague allegedly did not demonstrate he had exhausted his administrative remedies. The trial court dismissed Teague's lawsuit September 19, 2003, pursuant to Chapter 14 of the Texas Civil Practice and Remedies Code. On appeal, Teague contends the trial court abused its discretion by dismissing his lawsuit. We affirm.
We review a trial court's dismissal under Chapter 14 of the Texas Civil Practice and Remedies Code for abuse of discretion. Smith v. Tex. Dep't of Criminal Justice–Institutional Div., 33 S.W.3d 338, 339 (Tex. App.—Texarkana 2000, pet. denied). "The trial court abuses its discretion if it acts without reference to any guiding rules or principles." Id.
Chapter 14 of the Texas Civil Practice and Remedies Code governs lawsuits, except those brought under the Texas Family Code, filed by inmates of the Texas Department of Criminal Justice. Tex. Civ. Prac. & Rem. Code Ann. § 14.002 (Vernon 2002). The chapter further provides:
(a) An inmate who files a claim that is subject to the grievance system established under Section 501.008, Government Code, shall file with the court:
(1) an affidavit or unsworn declaration stating the date that the grievance was filed and the date the written decision described by section 501.008(d), Government Code, was received by the inmate; and
(2) a copy of the written decision from the grievance system.
(b) A court shall dismiss a claim if the inmate fails to file the claim before the 31st day after the day the inmate receives the written decision from the grievance system.
Tex. Civ. Prac. & Rem. Code Ann. § 14.005 (Vernon 2002). A trial court has a mandatory duty to dismiss a claim that is filed late. Id.; Smith, 33 S.W.3d at 340 n.2. Further, the Chapter 14.005 affidavit or unsworn declaration must give both the date the grievance was filed and the date on which a written decision was received. Draughon v. Cockrell, 112 S.W.3d 775, 776 (Tex. App.—Beaumont 2003, no pet.).
In this case, the grievance investigator denied Teague's "step two grievance" May 28, 2003. Teague's "Declaration of Ex[h]austion of Adminstrative Remedies" does not state the date on which he received notice the grievance had been denied. Teague's declaration therefore fails to comply with the requirements of Article 14.005. Cf. id. (trial court properly dismissed suit where inmate failed to file affidavit as required by Chapter 14). Accordingly, the trial court did not err by dismissing Teague's suit because his affidavit does not comply with the requirements of Article 14.005.
We affirm the trial court's judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: March 30, 2004
Date Decided: March 31, 2004