Under section 263.405(d)(3) of the Texas Family Code, we can ask the trial court to find that the appeal in termination cases is frivolous, which denies the appellant of a free record and short-cuts the appeals process.

San Antonio seems to be the main appellate court seeing action for this issue, but have any of you faced a constitutional challenge under this statute?

The need for this kind of legislation is obvious, as it prevents terminated parents from dragging their children through the legal process for extended periods of time when there is no real issue. Some folks think this violates the parents' constitutional rights, but to me it just adds some protection to the children we're supposed to be looking out for.

There is no federal constitutional right to appeal state criminal convictions. Griffin v. Illinois 351 U.S. 12, 18 (1956); McKane v. Durston, 153 U.S. 684, 687 (1894). The right to appeal criminal convictions is a right granted by the legislature. See Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992).

If criminal defendants don't have a constitutional right to appeal, I would not expect to find such a right granted to civil litigants. My guess - and it is only a guess - would be that what the Legislature can grant, the Legislature can take away.

If you won, I would not recommend appealing an unpublished opinion. It's not like the opinion now constitutes primary-mandatory authority in your jurisdiction. I know it can be cited, with the parenthetical (not designated for publication), but still, it seems like the better idea would be to wait and see if it comes up again. I doubt the Texas Supreme Court would be interested yet.

Also, what happened to the initial presumption of constitutionality with regard to statutes? Did that go away when I wasn't looking?

All civil cases decided after 1/1/03 are supposed to be published. They just are not all in SW3rd. TRAP 47.3. In civil cases there is no provision for an appellate court to list the case as "do not publish." TRAP 47.2

I guess this was just an order then and not an opinion that reached the merits of the appeal? Orders don't have to be published.

We have 2 currently in front of the Fort Worth Court of Appeals, so we're keeping our fingers crossed on what they do. Both cases were jury trials, so there are no records and no Findings of Fact and Conclusions of law. If the Court rules against us, I hope we get some guidance as to exactly what needs to be shown in future cases.

Since several Courts of Appeals (mine included) have accepted the use of Anders briefs in termination appeals, I suppose they think so.

Congratulations to David Newell for a big win today in J.L. http://www.supreme.courts.state.tx.us/historical/2005/apr/040307.htm