in the Interest of S.A.G., a Child

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-12-00105-CV
IN THE INTEREST OF S.A.G., A CHILD
On Appeal from the County Court at Law
Hopkins County, Texas
Trial Court No. CV40896
Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Justice Moseley
Concurring Opinion by Justice Carter
OPINION
Glenna Sue Terry brought a suit affecting the parent-child relationship of her grandson,
S.A.G., wherein she sought to be appointed joint managing conservator of the child. Terry’s
daughter (the mother of S.A.G.), Lesli Glover, was named as a respondent. During the pendency
of the case, the trial court appointed an amicus attorney, and, after a hearing on the merits, the
trial court denied Terry’s petition. On appeal, Terry argues that (1) an ex parte meeting of the
trial court and the amicus attorney violated the Confrontation Clause, (2) Texas Family Code
“statutes §§ 107.003, 107.005, 107.006 and 107.021,” which deal with the appointment of
amicus attorneys, are facially unconstitutional and unconstitutional as applied to this case, and
(3) the trial court erred by allowing the amicus attorney to violate parts of Section 107.007 of the
Texas Family Code by having an ex parte interview with the trial court after the conclusion of
the hearing. Although we find that the trial court erred in permitting ex parte communications
with the amicus attorney, we find the error harmless in this case and affirm the trial court’s
judgment.
I. Factual Background
In 2003, as part of a general overhaul to Chapter 107 of the Texas Family Code, the
Texas Legislature created the new court-appointed position of amicus attorney. See Act of June
18, 2003, 78th Leg., R.S., ch. 262, 2003 Tex. Gen. Laws 1173, 1173–83 (amended 2005)
(current version at TEX. FAM. CODE ANN. §§ 107.001–.010 (West 2008)). An amicus attorney
“means an attorney appointed by the trial court in a suit . . . whose role is to provide legal
services necessary to assist the court in protecting a child’s best interests rather than to provide
2
legal services to the child.” TEX. FAM. CODE ANN. § 107.001(1). The powers and duties of an
amicus attorney are specified by Texas Family Code Sections 107.003 and 107.005. 1 This new
1
Section 107.003 reads:
An attorney ad litem appointed to represent a child or an amicus attorney appointed to
assist the court:
(1) shall:
(A) subject to Rules 4.02, 4.03, and 4.04, Texas Disciplinary Rules
of Professional Conduct, and within a reasonable time after the appointment,
interview:
(i) the child in a developmentally appropriate manner, if
the child is four years of age or older;
(ii) each person who has significant knowledge of the
child’s history and condition, including any foster parent of the child;
and
(iii) the parties to the suit;
(B) seek to elicit in a developmentally appropriate manner the
child’s expressed objectives of representation;
(C) consider the impact on the child in formulating the attorney’s
presentation of the child’s expressed objectives of representation to the court;
(D) investigate the facts of the case to the extent the attorney
considers appropriate;
(E) obtain and review copies of relevant records relating to the
child as provided by Section 107.006;
(F) participate in the conduct of the litigation to the same extent as
an attorney for a party;
(G) take any action consistent with the child’s interests that the
attorney considers necessary to expedite the proceedings;
(H) encourage settlement and the use of alternative forms of
dispute resolution; and
(I) review and sign, or decline to sign, a proposed or agreed order
affecting the child;
(2) must be trained in child advocacy or have experience determined by the
court to be equivalent to that training; and
(3) is entitled to:
(A) request clarification from the court if the role of the attorney is
ambiguous;
(B) request a hearing or trial on the merits;
(C) consent or refuse to consent to an interview of the child by
another attorney;
(D) receive a copy of each pleading or other paper filed with the
court;
(E) receive notice of each hearing in the suit;
(F) participate in any case staffing concerning the child conducted
by an authorized agency; and
(G) attend all legal proceedings in the suit.
3
position is something of a legal will-o’-the-wisp whose client is not defined in the statute (and,
thus, whose representative capacity is cloudy), a concept that appears to be antithetical to the
adversary system of justice under which courts in this Nation have always operated. Under the
authority granted to the court by Texas Family Code Section 107.021, the trial court appointed
James Wendell Litzler as amicus attorney in this case. See TEX. FAM. CODE ANN. § 107.021(a)
(West 2008). In accord with these statutes, Litzler reviewed the pleadings, met with S.A.G. and
his counselor, spoke with the parties and their attorneys, and attended the trial of the case on
August 15, 2012.
TEX. FAM. CODE ANN. § 107.003. Although Terry did not object to Litzler’s appointment as amicus attorney, the
factual recitation in the brief suggests that Litzler was not qualified pursuant to Section 107.003(2). TEX. FAM.
CODE ANN. § 107.003(2). Although this issue was not raised as a separate point of error, we note the record’s
demonstration affirming that no objection to Litzler’s qualifications was made in a timely fashion. TEX. R. APP. P.
33.1. Further, Litzler testified that he took a course that “was a child advocacy course.”
Section 107.005 further states:
(a) Subject to any specific limitation in the order of appointment, an amicus
attorney shall advocate the best interests of the child after reviewing the facts and circumstances of
the case. Notwithstanding Subsection (b), in determining the best interests of the child, an amicus
attorney is not bound by the child’s expressed objectives of representation.
(b) An amicus attorney shall, in a developmentally appropriate manner:
(1) with the consent of the child, ensure that the child’s expressed
objectives of representation are made known to the court;
(2) explain the role of the amicus attorney to the child;
(3) inform the child that the amicus attorney may use information that the
child provides in providing assistance to the court; and
(4) become familiar with the American Bar Association’s standards of
practice for attorneys who represent children in custody cases.
(c) An amicus attorney may not disclose confidential communications between the
amicus attorney and the child unless the amicus attorney determines that disclosure is necessary to
assist the court regarding the best interests of the child.
TEX. FAM. CODE ANN. § 107.005. Perhaps one of the more challenging tasks assigned by statute to the amicus
attorney is for that person to “in a developmentally appropriate manner . . . explain the role of the amicus attorney to
the child.” TEX. FAM. CODE ANN. § 107.005(b)(2).
4
Litzler submitted an invoice to the trial court which included a reference to a forty-five-
minute “Meeting with Judge [Amy] Smith” August 16, 2012 (the day after the contested
hearing). An August 27, 2012, letter from the trial judge informed counsel that “Litzler has
given me his recommendation as Amicus Attorney in this matter. He believes the child should
remain with the mother.” The letter further stated that “Litzler’s recommendation and the
testimony of the witnesses” led the trial judge to “den[y] the request to change custody” and
concluded with a request that Glover’s attorney create a proposed order for the court’s signature.
After the date of the trial court’s letter, but before the proposed order was actually signed,
a motion for rehearing was filed that vigorously complained of the ex parte meeting between the
amicus attorney and the trial court. This motion stated, in part,
1. On August 15, 2012, this Court heard this case and is considering
whether to sign a proposed judgment . . . in this case.
2. A rehearing should be granted to Movant because this Court
considered evidence that was improper and prejudicial to the rights of Movant.
Specifically, the Amicus Attorney met privately with the judge and fact finder of
this Court in this case and argued his recommendation outside the presence of all
attorneys and parties in this case.
3. This out-of-court private meeting to consider the amicus’ opinion
and advice in this case violates Section 107.007(a)(4) 2 of the Texas Family Code
2
Section 107.007 reads:
(a) An attorney ad litem, an attorney serving in the dual role, or an amicus attorney
may not:
(1) be compelled to produce attorney work product developed during the
appointment as an attorney;
(2) be required to disclose the source of any information;
(3) submit a report into evidence; or
(4) testify in court except as authorized by Rule 3.08, Texas Disciplinary
Rules of Professional Conduct.
5
which specifically forbids an amicus attorney from testifying in any case. Also
the private meeting and consultation is in violation of Section 107.003(1)(A) of
the Texas Family Code which says that an amicus can participate in the conduct
of litigation to the same extent as an attorney for a party. No attorney for any
party may have a private, ex parte session with the judge to argue or present their
side of the case, and therefore, this is a violation of this section.
....
5. Further, as alluded to already, the opinion allowed to be given by
the amicus attorney in private was not subject to cross-examination, and this is a
violation of the United States and Texas constitutional right of confrontation.
The motion also alleged that the “amicus attorney statute provisions . . . are unconstitutional on
the grounds that they violate [] due process rights,” “the right of confrontation,” “the attorney
client privilege and right of privacy between the child and the attorney,” and “the right of privacy
and the right of attorney client privilege of the parties in the suit.”
The trial court entered its order in conformity with the letter ruling on October 3, 2012.
This order denied Terry’s petition to modify the parent-child relationship by naming her a joint
managing conservator. Nevertheless, a hearing on Terry’s motion for new trial was conducted
November 1, 2012, wherein Litzler (the only witness at the hearing) confirmed that he had met
with the trial judge privately on the day after trial, discussed the testimony of the witnesses, and
expressed his opinion on the case without the parties and their attorneys present. The trial court
found that “Mr. Litzler did exactly what he was supposed to do under the statute” and denied the
motion for new trial.
(b) Subsection (a) does not apply to the duty of an attorney to report child abuse or
neglect under Section 261.101.
TEX. FAM. CODE ANN. § 107.007.
6
II. Confrontation Clause Does Not Apply to Civil Cases
Terry complains that the ex parte meeting with the trial judge violated “the Confrontation
Clause of the United States and Texas Constitutions” and cites only the case of Crawford v.
Washington, 541 U.S. 36, 51–52 (2004), to support this proposition.
However, the Sixth Amendment Confrontation Clause and Article I, Section 10 of the
Texas Constitution apply only “[i]n all criminal prosecutions,” and Crawford is a criminal case
which does not apply to this civil proceeding. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10;
see In re Commitment of Polk, 187 S.W.3d 550, 555–56 (Tex. App.—Beaumont 2006, no pet.).
In sum, “[t]here is no constitutional right to confrontation in a civil proceeding.” Alexander
Shren-Yee Cheng v. Zhaoya Wang, 315 S.W.3d 668, 671 (Tex. App.—Dallas 2010, no pet.); see
Ochs v. Martinez, 789 S.W.2d 949, 951 (Tex. App.—San Antonio 1990, writ denied).
Accordingly, Terry’s complaints relating to confrontation and suggestions that she was
deprived of due process based on the inability to confront Litzler are overruled.
III. Constitutionality of Amicus Provisions in Chapter 107 of the Texas Family Code
Terry’s brief “seek[s] to challenge both the facial and as-applied unconstitutionality of
[TEX. FAM. CODE ANN.] §§ 107.003, 107.005, 107.006, and 107.021.”
Terry raises the following vagueness challenges to the complained-of statutes:
• Section 107.003(1)(D)’s requirement that an amicus attorney “investigate the facts of the
case to the extent the attorney considers appropriate” and Section 107.003(F)’s
requirement that an amicus attorney “participate in the conduct of the litigation to the
same extent as an attorney for a party” forces “men of common intelligence” to “guess[]
at the meaning of the statute”;
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• Section 107.003(2)’s requirement that an amicus attorney “must be trained in child
advocacy or have experience determined by the court to be equivalent to that training”
fails to specify the meaning of this phrase;
• Section 107.005(b)(4)’s requirement that an amicus attorney “become familiar with the
American Bar Association’s standards of practice for attorneys who represent children in
custody cases” is impermissibly vague; and
• Section 107.006’s mandate that “the court shall issue an order authorizing the . . . amicus
attorney to have immediate access to the child and any information relating to the child”
is vague due to the phrase “any information.”
See generally TEX. FAM. CODE ANN. §§ 107.003, 107.005, 107.006 (West 2008 & Supp. 2012).
“As a prerequisite to presenting a complaint for appellate review, the record must show
that: (1) the complaint was made to the trial court by a timely request, objection, or motion . . .
and (2) the trial court: (A) ruled on the request, objection, or motion. . . .” TEX. R. APP. P.
33.1(a). “It is well-settled that an objection at trial that does not comport with the complaint
raised on appeal preserves nothing for appellate review.” Martin v. Paris, No. 06-10-00037-CV,
2011 WL 766653, at *7 (Tex. App.—Texarkana Mar. 4, 2011, no. pet.) (mem. op.) (citing Ibarra
v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999)).
Although Terry voiced several objections on constitutional grounds below, the idea that
these statutes were void for vagueness was not among those objections. Accordingly, Terry has
failed to preserve that issue for our review. TEX. R. APP. P. 33.1(a); see Wood v. City of Texas
City, No. 14-11-00979-CV, 2013 WL 440569, at *5 n.5 (Tex. App.—Houston [14th Dist.]
Feb. 5, 2013, no pet.) (mem. op.) (refusing to address “vagueness complaint [raised] for the first
time in [the] appellant’s brief”).
8
Next, Terry complains that the statutes “violate all rights to be free from unwarranted
search and seizure guaranteed by the Fourth Amendment to the United States Constitution and
Article I, Section 9 of the Texas Constitution,” which protect against unreasonable searches and
seizures conducted by government officials. Again, because this issue was not raised at the trial
level, it was not preserved for our review.
As a final point regarding the constitutionality of the statute, Terry raises issues with
regard to waivers of attorney-client and work-product privileges that could occur in the course of
the amicus attorney’s representation of the court and the child’s best interest. Specifically, she
argues that Chapter 107’s amicus provisions “violate the constitutional requirements and case
law provisions of the attorney client privilege and right of privacy between the child and the
attorney, and further violate the right of privacy and the right of attorney client privilege of the
parties in the suit.” Chapter 107 authorizes the amicus attorney to speak to the child and gather
the facts of the case to help determine the best interest of the child. TEX. FAM. CODE ANN.
§§ 107.003, 107.005. However, even though Terry has raised theoretical questions concerning
the scope of the authority granted to the amicus attorney, she fails to recite any privileged
information which was allegedly divulged to the amicus attorney. Even assuming that this
occurred and that Terry’s argument was feasible, any implicated privileges were subject to
voluntary waiver during discussions with the amicus attorney. Terry’s failure to complain about
the procedure and her failure to assert any privilege until after trial also leads us to conclude that
this argument was untimely made.
9
We overrule Terry’s complaints regarding the constitutionality of “[TEX. FAM. CODE
ANN.] §§ 107.003, 107.005, 107.006, and 107.021.”
IV. While the Trial Court Erred in Permitting the Amicus Attorney’s Ex Parte
Communications, the Error Was Harmless in this Case
Ex parte communications are “those that involve fewer than all of the parties who are
legally entitled to be present during the discussion of any matter.” In re Thoma, 873 S.W.2d
477, 496 (Tex. Rev. Trib. 1994, no appeal). Terry argues that the trial court erred in engaging in
ex parte communications with the amicus attorney. 3 We agree.
Our adversarial system of justice, grounded in the principle of an impartial judiciary,
becomes compromised when one-sided, closed-door, in-chambers discussions with trial judges
are encouraged. For this reason, all attorneys are subject to Texas Disciplinary Rule of
Professional Conduct Rule 3.05 prohibiting ex parte communications, and judges “shall not
initiate, permit, or consider ex parte communications or other communications made to the judge
outside the presence of the parties between the judge and a party, an attorney, a guardian or
attorney ad litem, an alternative dispute resolution neutral, or any other court appointee
concerning the merits of a pending or impending judicial proceeding.” TEX. CODE JUD.
CONDUCT, Canon 3(B)(8), reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G, app. B (West
3
Terry argues that the meeting with the trial judge violated Section 107.007’s prohibition stating that “an amicus
attorney may not: . . . (3) submit a report into evidence; or (4) testify in court . . . .” TEX. FAM. CODE ANN.
§ 107.007(3)–(4). There is no written report that was submitted into evidence, and Liztler did not testify in court.
Thus, he did not violate Section 107.007’s prohibition.
Because an amicus attorney may “participate in the conduct of the litigation to the same extent as an
attorney for a party,” he may question witnesses and present argument in open court without violating Section
107.007. TEX. FAM. CODE ANN. § 107.003(1)(F).
10
2013); see TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 3.05, reprinted in TEX. GOV’T CODE
ANN., tit. 2, subtit. G, app. A (West 2013).
We recognize the wording of Chapter 701 4 creates confusion in suggesting that the
amicus attorney is not the attorney for the child, but instead assists the court. In cases not on
point with this one, several of our sister courts have written that the amicus attorney “represents
neither an appellant nor an appellee,” and “the trial court, is, in effect, the amicus attorney’s
client for a limited purpose.” O’Connor v. O’Connor, 245 S.W.3d 511, 515 (Tex. App.—
Houston [1st Dist.] 2007, no pet.); see In re Collins, 242 S.W.3d 837, 842 (Tex. App.—Houston
[14th Dist.] 2007, no pet.). If the amicus attorney was the attorney for the court, then perhaps
ex parte communications would be permitted based on the attorney-client privileges provided by
Texas Rule of Evidence 503 and Rule 1.05 of the Texas Disciplinary Rules of Professional
Conduct. TEX. R. EVID. 503; TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 1.05, reprinted in
TEX. GOV’T CODE ANN., tit. 2, subtit. G, app. A.
However, we do not believe that the Texas Legislature intended the trial court to be the
amicus attorney’s client or that the statutory language encourages ex parte communications. The
4
We are critical of the Legislature’s creation of the role of amicus attorney. In practice, this allegedly independent
attorney is advocating on the behalf of a party by attempting to convince a receptive judge that custody of the child
should be afforded to one party or another because that amicus attorney believes himself to be acting solely in the
best interests of the child. Under our system of justice, this determination should belong only to the trier of fact—in
this case, the trial judge. We believe the amicus attorney practice may encourage ex parte communications due to
lack of clarity in the Rules, resulting in a high potential for abuse as this case illustrates in creating an additional
allegedly “independent” position that has been wedged in the middle of our traditional adversarial system. We also
observe that there is nothing in the authorization of the amicus attorney which would restrict the amicus attorney
from considering evidence obtained outside the legal system—even evidence which would be barred under the
sometimes-uncomfortable constraints of the Texas Rules of Evidence. Since under Texas Family Code Section
107.007(a)(2), the amicus attorney could not be compelled to divulge the source of any information upon which his
recommendation was based, we believe this constraint might lend credence to a belief that the recommendations of
the amicus attorney could be based on conclusions drawn from evidence which would never be allowed in a court of
law.
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role of an amicus attorney is “to provide legal services necessary to assist the court in protecting
a child’s best interests rather than to provide legal services to the child.” TEX. FAM. CODE ANN.
§ 107.001(1). This simply means that the court has the authority to appoint a lawyer to advocate
for the best interests of the child, without being bound by the child’s objectives of representation
or the wishes that the child may express. In fulfilling the specified duties included in Chapter
107 of the Texas Family Code, the attorney will necessarily be assisting the court in fulfilling its
purpose to rule in accordance with the best interests of the child. Yet, nothing in Section
107.001 suggests that because the amicus attorney does not “provide legal services to the child,”
he must be providing legal services to the trial court by process of elimination. Rather, the
amicus attorney “by definition does not exactly have a client.” John J. Sampson et al., Texas
Family Code Annotated § 107.007 cmt. (22d ed. 2012).
Section 107.005(b)(4) requires an amicus attorney to become familiar with the American
Bar Association’s (ABA) standards of practice for attorneys who represent children in child
custody cases. TEX. FAM. CODE ANN. § 107.005(b)(4). In discussing the advocacy of the child’s
best interests, the commentary recommends, albeit in the context of settlement negotiation, that
the Best Interests Attorney (the “Best Interests Attorney” in the ABA standards of practice being
the practical equivalent of the Texas “amicus attorney”) should avoid ex parte communication
and “should ordinarily discuss her or his concerns with the parties and counsel . . . , before
12
involving the judge.” 5 In discouraging ex parte communications, the ABA recognizes that the
amicus attorney is not the trial judge’s attorney.
The Texas Supreme Court is very reticent to permit ex parte communications:
This court only allows such communications in limited, extraordinary
emergency situations. See TEX. R. CIV. P. 592 (Writ of Attachment); TEX. R. CIV.
P. 658 (Writ of Garnishment); TEX. R. CIV. P. 696 (Writ of Sequestration); TEX.
R. CIV. P. 800 (Proof in trespass to try title action when defendant fails to appear
after notice by publication). . . . See Supreme Court of Texas, Rules Governing
the State Bar of Texas art. X, § 9 (Code of Professional Responsibility) DR 7-
110(B) (1987).
Barnes v. Whittington, 751 S.W.2d 493, 495 n.1 (Tex. 1988). Canon 3 of the Texas Code of
Judicial Conduct prescribes:
(8) A judge shall accord to every person who has a legal interest in a
proceeding, or that person’s lawyer, the right to be heard according to law. A
judge shall not initiate, permit, or consider ex parte communications or other
communications made to the judge outside the presence of the parties between the
judge and a party, an attorney, a guardian or attorney ad litem, an alternative
dispute resolution neutral, or any other court appointee concerning the merits of a
pending or impending judicial proceeding. A judge shall require compliance with
this subsection by court personnel subject to the judge’s direction and control.
This subsection does not prohibit:
(a) communications concerning uncontested administrative or
uncontested procedural matters;
(b) conferring separately with the parties and/or their lawyers
in an effort to mediate or settle matters, provided, however, that the judge
shall first give notice to all parties and not thereafter hear any contested
matters between the parties except with the consent of all parties;
(c) obtaining the advice of a disinterested expert on the law
applicable to a proceeding before the judge if the judge gives notice to the
5
ABA Section of Family Law Standards of Practice for Lawyers Representing Children in Custody Cases, Section
IV, subtit. F cmt. (Aug 2003), available at http://www.americanbar.org/content/dam/aba/migrated/domviol/pdfs/
0908/Standards_of_Practice_for_Lawyers_Representing_Children.authcheckdam.pdf.
13
parties of the person consulted and the substance of the advice, and affords
the parties reasonable opportunity to respond;
(d) consulting with other judges or with court personnel;
(e) considering an ex parte communication expressly
authorized by law.
TEX. CODE JUD. CONDUCT, Canon 3.
Although this Court recognizes the exceptional integrity and honesty of the judge of the
trial court from which this appeal is taken, we also recognize that the public often
misunderstands the role of judges and the decision-making process employed by them. Our
justice system’s abhorrent reaction to ex parte communications is purposeful. Such
communications undermine the principle of transparency which is promoted by the option of
conducting proceedings recorded in open court. The Texas Supreme Court has ruled that
transparency is something “we strive to achieve in our legal system.” In re Columbia Med. Ctr.
of Las Colinas Subsidiary, L.P., 290 S.W.3d 204, 213 (Tex. 2009). Ex parte communications do
not promote that transparency. We find that the trial court erred in allowing ex parte
communications with the amicus attorney.
In civil cases, “[n]o judgment may be reversed on appeal on the ground that the trial court
made an error of law unless . . . the error complained of: (1) probably caused the rendition of an
improper judgment . . . .” TEX. R. APP. P. 44.1(a)(1). In Abdygapparova v. State, our sister court
correctly wrote, “The United States Supreme Court has repeatedly held that a violation of the
right to an impartial judge is a structural error that defies harm analysis.” Abdygapparova v.
State, 243 S.W.3d 191, 209 (Tex. App.—San Antonio 2007, pet. ref’d). However, the concept of
14
structural error appears to be restricted to criminal application, 6 and the Rules of Appellate
Procedure require a harm analysis in civil cases.
When asked about the effect of his recommendation upon the trial judge, Litzler testified:
Well, she told me that she had come to the same conclusion on her own. But to
the extent -- if it helped her reconfirm her opinion, then I guess it probably did
help -- help. It certainly -- it certainly didn’t change her opinion, so -- but when I
met with Judge Smith, she told me she had come to the same conclusion that the
best interest of the child was to -- for Stephen to stay with his mother.
At the conclusion of the hearing on Terry’s motion for new trial, the judge remarked, “I can tell
you right now that I did my own thinking and made my opinion specifically on what I believed
was in the best interest of the child.” In the August 27 letter referenced above, the judge wrote,
“Given Mr. Litzler’s recommendations and the testimony of the witnesses the Court denies the
request to change custody,” but also listed her reasons for allowing custody to remain with
Glover. The judge explained:
This child has a great many emotional problems which must be addressed by
professionals. Taking him away from his mother at this time would exacerbate his
feelings of abandonment and not be in his best interest. [Glover] is seeking
medical and psychological help which is encouraging. It is obvious the
grandmother does not share the need for outside services.
Further, this child will become physically stronger through the years as
grandmother becomes physically weaker and unable to deal with his outbursts.
Trial courts have broad discretion to determine what is in a child’s best interest; we
review a trial court’s decision regarding child custody, control, and possession matters for a clear
6
Aside from cases involving juvenile criminal offenders, there is no Texas precedent applying structural error in
civil cases. Other jurisdictions have determined that there is no place for structural error in civil cases. See In re
Detention of D.F.F., 256 P.3d 357, 364 (Wash. 2011) (Johnson, J., concurring) (en banc); People ex rel. R.D., 277
P.3d 889, 895 (Colo. App. 2012); but see Perkins v. Komarnyckyj, 834 P.2d 1260, 1261–65 (Ariz. 1992) (en banc);
In re Marriage of Carlsson, 163 Cal. App. 4th 281, 293 (Cal. Ct. App. 2008).
15
abuse of discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); see also In re
Marriage of Ellis, No. 06-08-00012-CV, 2008 WL 3834103 (Tex. App.—Texarkana Aug. 19,
2008, no pet.) (mem. op.). Here, Terry waived making a record of the trial proceedings. “It is
the burden of the appellant to bring forward a sufficient record to show the error committed by
the trial court.” Nicholson v. Fifth Third Bank, 226 S.W.3d 581, 583 (Tex. App.—Houston [1st
Dist.] 2007, no pet.) (citing Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990)).
Without availability of the record at trial, we cannot determine whether the trial court’s
error in allowing ex parte communications so influenced the trial judge in a pending matter that
suggests the error probably caused the rendition of an improper judgment. Further, we cannot
determine that the judgment was improper here because the amicus attorney is only to advocate
the best interests of the child, and the trial court is required to act in accord with the child’s best
interests. Therefore, we hold the error, though repugnant, harmless.
V. Conclusion
We affirm the trial court’s judgment.
Bailey C. Moseley
Justice
16
CONCURRING OPINION
I agree completely with the majority opinion’s holding that an amicus attorney may not
engage in ex parte communications with the trial judge. By doing so, both the attorney and the
judge violate their respective Rules of Conduct and the judge commits error.
The more difficult question is whether the communication, in this case, creates reversible
error. There is authority that an ex parte communication itself is not per se harmful, but proof
must be provided that the opposing party’s substantial rights have been prejudiced. Hammack v.
Pub. Util. Comm’n of Tex., 131 S.W.3d 713, 730 (Tex. App.—Austin 2004, pet. denied) (citing
Vandygriff v. First Sav. & Loan, Etc. 617 S.W.2d 669, 673 (Tex. 1981)). Most of these have
been administrative cases, somewhat different from traditional trials.
The majority opinion concludes that the concept of structural error appears to be
restricted to criminal application. By footnote, it is mentioned that structural error applies to
juvenile matters (which are civil cases appealed to the Texas Supreme Court). My reading of
In re D.I.B., 988 S.W.2d 753, 758 (Tex. 1999), is that in the proper civil case, structural error is
recognized by the Texas Supreme Court. The court in D.I.B. quoted the Texas Court of Criminal
Appeals’ discussion of structural error—that some kinds of errors will never be harmless. Id. at
759. The Texas Supreme Court found the rationale applicable in civil cases and conducted a
harm analysis finding the error in that case did not defy analysis and that there was sufficient
data to analyze. Id. But the opinion further notes that it was not called upon to decide, and did
not decide, if the error was a “structural defect[] in the constitution of the trial mechanism, which
def[ies] analysis by ‘harmless-error’ standards.” Id.
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My concern is whether this is the kind of error that defies analysis and for which there is
insufficient data to analyze its harmful nature. In this case, a record was created at the motion
for new trial hearing which we can review. Accepting the testimony of the attorney together
with the statements of the trial judge, the majority concludes that no harm resulted from the
private conversation. According to the attorney’s testimony, he only conveyed to the judge
information that he was prepared to give in open court. The judge states she decided the case
based on the evidence heard at trial. I have no reason to question this testimony, but I have
concerns. By definition, the opposing party is not aware of the information given in secret to the
judge. That prevents the party from countering such information with evidence. When one party
is unaware of the evidence or information used by a judge to decide a dispute and is unable to
challenge it, our adversary system breaks down.
I, too, believe the trial judge and attorney acted in good faith and perhaps even with some
authority provided by misguided statements in some appellate opinions (i.e., that the trial judge
is the amicus attorney’s client). I will accede to the harm analysis—with reservations. The ex
parte communication is error; even if no particular harm may be identified in this case, the
unidentified harm may be to our legal system and the respect given to our courts by the public.
I concur in the judgment of the court.
Jack Carter
Justice
Date Submitted: June 4, 2013
Date Submitted: June 14, 2013
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