author: Justice PATTERSON. DAVID PURYEAR, Justice,

text:
    In the Interest of J.R.D. and T.C.D.
    No. 03-04-00311-CV.
    Court of Appeals of Texas, Austin.
    July 14, 2005.

      James A. Vaught, McCullar & Vaught, PC, Austin, for appellant.
    Catherine A. Mauzy, Law Office of Catherine A. Mauzy, Christa Brown, Austin, for appellee.
    Before Chief Justice LAW, Justices PATTERSON and PURYEAR.
   OPINION

Opinion by

Justice PATTERSON.

Roger Duck appeals from a modification order in a suit affecting the parent-child relationship. After a hearing, the district court entered an order granting the petition to increase Duck’s time with his sons to include Thursday overnights but otherwise denied a farther increase in the possession schedule and a reduction in child support. On appeal, Duck challenges the court’s failure to decrease child support and to grant further modification of the possession schedule, and the court’s finding that it was not in the children’s best interest to implement a 50-50 division of periods of possession. Because the evidence supports the district court’s conclusion and because we cannot say that the court abused its discretion or otherwise committed error, we affirm the court’s order.

Upon their divorce in June 2000, Roger Duck and Melanie Williamson were named joint managing conservators of their two sons, ages 6 and 3; Williamson was named as the parent with the right to establish the children’s primary residence. The possession schedule and the amount of child support in the divorce decree were set by agreement. Apart from limited incidents, the parties agree that they are both good parents.

Because of financial difficulties, in 2002, Duck petitioned for modification of the amount of his child support obligation. Again, the parties reached an agreement and, in accordance with their agreement, the district court reduced his monthly child support from $1500 per month to $750 per month.

Although Duck’s financial situation had not changed, he filed a second petition for modification in February 2003, seeking to reduce further the amount of his child support obligation. After Duck failed to pay the court-ordered amount of child support and advised Williamson that he would begin sending her $250 per month rather than the court-ordered amount, Williamson filed a motion to enforce, and Duck was found in contempt for failure to pay child support. He proposed that the children should spend alternate nights with him. Williamson rejected this “ping-pong” proposal because it would unduly disrupt the children’s schedule. She would not agree to Duck’s request for additional time and urged that he exercise the full amount of time set forth in the possession schedule of the original divorce decree. Duck then amended his petition seeking an increase in his periods of possession of the couple’s sons to include overnights on Sundays, Mondays, and Thursdays.

After a hearing on the petition to modify, the court entered an order modifying the possession schedule to allow Duck to keep the children overnight on Thursdays as permitted by an election under the standard possession schedule. The district court denied Duck’s request for Sunday and Monday overnight possession and declined to order a change in Duck’s child support obligation.

Under the applicable portions of section 156.101 of the Texas Family Code, the district court may modify the conser-vatorship of a child only if the modification is in the child’s best interest, and the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since the date of rendition of the order. See Tex. Fam.Code Ann. § 156.101 (West Supp.2004-05). The party moving for modification has the burden of proving the occurrence of “material and substantial change.” In re Knott, 118 S.W.3d 899, 902 (Tex.App.-Texarkana 2003, no pet.); In re P.D.M., 117 S.W.3d 453, 463 (Tex.App.Fort Worth 2003, pet. denied).

We review the district court’s modification order under an abuse of discretion standard. We give wide latitude to a trial court’s decision on custody, control, possession, child support, and visitation, and will reverse the order only if it appears from the record as a whole that the trial court abused its discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982) (applying abuse of discretion standard with regard to possession order); In re C.P.J., 129 S.W.3d 573, 576 (Tex.App.-Dallas 2003, pet. denied). The trial court is in a better position to determine what will be in the best interest of the child since it faced the parties and their witnesses, observed their demeanor, and had the opportunity to evaluate the claims made by each parent. Martinez v. Molinar, 953 S.W.2d 399, 403 (Tex.App.-El Paso 1997, no writ). Its judgment will not be disturbed on appeal unless there has been a clear abuse of discretion. Id.

A trial court abuses its discretion when it acts arbitrarily or unreasonably, or without reference to any guiding rules or principles. Worford v. Stamper, 801 S.W.2d 108,109 (Tex.1990) (applying abuse of discretion standard with regard to child support order). The determination of con-servatorship issues is guided by the best interest of the child and is “intensely fact driven.” Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex.2002). Under an abuse of discretion standard, legal and factual insufficiency are relevant factors in assessing whether the district court abused its discretion. See, e.g., Norris v. Norris, 56 S.W.3d 333, 338 (Tex.App.-El Paso 2001, no pet.).

Duck raises constitutional and statutory challenges to the court’s order. He contends that the court erred regarding the amount of his access to and possession of the children because he is constitutionally entitled to equal time with them. A constitutional analysis must begin with a presumption of the statute’s validity. General Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 (Tex. 2001). The burden is on the party seeking to rebut the presumption of statutory validity. Id. As mandated by statute, the best interest of the child is the court’s primary consideration in determining con-servatorship and access. Tex. Fam.Code Ann. § 153.002 (West 2002). “Joint managing conservatorship does not require the award of equal or nearly equal periods of physical possession of and access to the child to each of the joint conservators.” Id. § 153.135 (West 2002). “The standard possession order ... constitutes a presumptive minimum amount of time for possession of a child by a parent named as a joint managing conservator who is not awarded the exclusive right to designate the primary physical residence of the child in a suit.” Id. § 153.137 (West Supp.2004-05). There is a rebuttable presumption that the standard visitation order provides reasonable minimum possession of a child for a parent named as a joint managing conservator and that such possession is in the best interest of the child. Id. § 153.252 (West 2002).

Although the court modified the possession schedule to allow Duck’s children to stay overnight with him on Thursdays, Duck also sought Sunday night possession, claiming that he has an “absolute right” to Sunday overnight stays by statute. See id. § 153.317 (West Supp.2004-05); see also In re Davis, 30 S.W.3d 609, 612 (Tex.App.-Texarkana 2000, no pet.). Duck, however, failed to justify his request for Sunday night possession by showing the court that his circumstances or those of his children had materially and substantially changed since the rendition of the last modification order on April 19, 2002. Tex. FarmCode Ann. § 153.317; Davis, 30 S.W.3d at 612-13 (Sunday overnight stays justified by finding of substantial change that occurred in five years since entry of prior order). Thus, Duck did not have an “absolute right” to the Sunday overnight possession. Moreover, Duck agrees that the children have flourished under the current possession agreement.

The possession schedule in this case follows the standard possession schedule except that Duck is afforded additional possession time on Mondays from the time school dismisses until 8:00 p.m. and for Monday overnights in summer. This is a presumptively reasonable possession schedule that the district court found to be in the children's best interest. Id. § 153.252. We find sufficient evidentiary support for the balance the district court struck in modifying the standard order and find no support in the record for further altering the schedule.

Duck further lodges a constitutional challenge to the court’s use of the best-interest-of-the-children standard, claiming that it interferes with his fundamental right to parent his children and does not serve a compelling state interest. It is clear from the record that, with minor lapses, both parents are and strive to be good and fit parents. From this, Duck argues that good parents should have substantially equal periods of possession with their children. After reviewing the record, we cannot locate any testimony by Duck that his proposal would be in the best interest of the children. Indeed, at one point the district court admonished Duck to focus on the interest of the children, rather than his own best interest. Duck responded that “the best interest of the children cannot be at the expense of my constitutional rights.” While there is a statutory presumption that the parents be appointed joint managing conservators, there is no comparable statutory presumption that the award of equal periods of possession is in the children’s best interest. Compare id. § 153.131(b) (West 2002) with id. § 153.135. Duck did not identify any case that found a constitutional infringement based on a court’s order of unequal possession periods for divorced parents. Moreover, the Supreme Court has expressly recognized that the “best interest of the children” is the proper standard for resolving disputes between parents on custody issues. Reno v. Flores, 507 U.S. 292, 303-04, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993); In re H.D.O., 580 S.W.2d 421, 424 (Tex.App.-Eastland 1979, no writ) (holding “best interest of the child” standard does not violate federal constitutional principles); see also In re R.D.Y., 51 S.W.3d 314, 324 (Tex.App.-Houston [1st Dist.] 2001, pet. denied) (mother not denied due process of law or equal protection of law based on court’s finding that child’s best interest weighed against mother’s possession for overnight visitation).

Duck also contends that the district court abused its discretion by refusing to further reduce the amount of child support because Williamson had the same or similar financial resources as he did and a greater obligation had been imposed on him as a male and the father. Duck did not meet his statutory burden of demonstrating a reason for reducing his child support obligation. Nor is there anything in the record to support his claim that the court arbitrarily imposed child support obligations upon him in violation of his constitutional rights as a parent. In 2002, Duck and Williamson agreed to an order reducing his monthly obligation to $750; he testified at the hearing that his income had not changed since that time. His testimony does not support deviation from the child support guidelines. See Tex. Fam.Code Ann. § 154.128(a) (West 2002). Nor does continuation of the $750 support set in his prior agreement constitute “gender discrimination” by the court. Because Duck’s income has not changed since he agreed to the modification in 2002, the amount of child support being paid is well within the presumptively reasonable amount established by the Texas Family Code’s guidelines, and he did not produce evidence justifying variance from the guidelines, we conclude that the district court did not rest its determination on any improper consideration and did not abuse its discretion in denying Duck’s requested reduction.

After observing the parties and their witnesses, their demeanor, and the validity of their claims, the district court found that Duck had failed to carry his burden of proving a material and substantial change with respect to the possession schedule and child support. Both are well within statutory guidelines. Giving great deference to the district court’s judgment and in light of the statutory provision expressly mandating that equal possession is not required, we would be hard pressed to conclude that the district court’s ruling was made without reference to any guiding rules and principles.

Having overruled Duck’s issues, we affirm the district court’s order.

Concurring opinion by Justice PURYEAR.

DAVID PURYEAR, Justice,

concurring.

The majority apparently affirms the district court’s decision that Duck failed to show “changed circumstances” so as to justify modification of the order. Because I agree that the court did not err in its decision in that regard, I concur in the result reached by the majority. However, I write separately to express my belief that the standards currently used in making and reviewing orders that have the effect of limiting a parent’s access to his or her children do not reflect the legislative mandate regarding parental access, nor do they adequately respect the scope of the liberty interest enjoyed by a parent in rearing his or her own children.

Because of the gravity of the constitutional rights and interests at stake in such proceedings, and because the current standard is based upon outdated notions of parenting that predate the family code and run counter to the legislature’s stated policy concerning children’s best interests, trial courts should justify deviation from maximum feasible time with both parents by clear and convincing evidence and make factual findings, and appellate courts should carefully review those findings.

The custody issue entertained by the court in this case is one faced by trial courts countless times every day. Yet, while the liberty interest at issue is “perhaps the oldest of the fundamental interests recognized,” Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), the standards by which the trial courts decide and consequently, by which appellate courts review these decisions offer minimal recognition of the gravity of the liberty interests parents and children hold in their relationships and little protection to the individuals involved. Our trial courts operate under a preponderance of the evidence standard in these cases and appellate courts apply an abuse of discretion standard in reviewing those decisions. Thus, even against the background of these monumental rights and explicit legislative directives to limit a parent’s time with a child only as necessary, see Tex. Fam.Code Ann. § 153.193 (West 2002), a trial court, if it were ever so slightly more persuaded in one direction than another, may make a decision profoundly affecting the rights and abilities of parents to raise their children, and unless we can say that no reasonable mind could have reached the court’s conclusion, we leave it undisturbed. A parent’s interest in the companionship, care, custody, and management of his or her children is paramount and demands a respect much greater than that due the liberties derived from mere “shifting economic arrangements.” Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). However, in practice, issues of shifting economic arrangements often receive more protection. For instance, in a divorce, a party seeking to overcome the community property presumption must prove an item is separate property by the higher standard of clear and convincing evidence. Tex. Fam.Code Ann. § 3.003 (West 1998). Clear and convincing evidence is that measure or degree of proof that produces in the mind of a fact-fínder a firm belief or conviction of the truth of the matter sought to be established. In re C.H., 89 S.W.3d 17, 23 (Tex. 2002). Limitations on parental access to children, however, need not be supported by evidence upon which the fact-finder could form a firm belief or conviction. This standard is totally at odds with both the fundamental nature of the constitutional rights at issue and the legislature’s stated policy and mandate.

Interests of parents and children and the State

The right to the companionship, care, custody, and control of one’s own child is a fundamental liberty interest far more precious than any property right. In re M.S., 115 S.W.3d 534, 547-48 (Tex.2003) (citing Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)). Thus, “the relationship between parent and child is constitutionally protected.” Troxel, 530 U.S. at 66, 120 S.Ct. 2054 (citing Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978)). Parents have the responsibility and the right to direct the upbringing and education of their children. Id. at 65, 120 S.Ct. 2054 (citing Pierce v. Society of Sisters, 268 U.S. 510, 534-35, 45 S.Ct. 571, 69 L.Ed. 1070 (1925)). In fact, it is “cardinal” that the custody, care, and nurture of a child reside in the parents. Id. at 65, 120 S.Ct. 2054 (citing Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944)). It has been firmly established that the Due Process Clause of the Fourteenth Amendment to the United States Constitution protects the fundamental rights of parents to make decisions concerning the care, custody, and control of their children. Id. at 66, 120 S.Ct. 2054. “[T]he Due Process Clause does not permit States to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a ‘better’ decision could be made.” Id. at 72-73, 120 S.Ct. 2054.

Children also have a substantial interest in the proceedings that determine their custody and the direction of their lives. See M.S., 115 S.W.3d at 547. Both parent and child have a weighty interest in the accuracy and justice of a decision affecting their ability to have a relationship with one another. Id. (recognizing this substantial interest in context of termination of parental rights). The State also has an interest in protecting the welfare of its children, which “must initially manifest itself by working toward preserving the familial bond” between a parent and child unless that parent will not provide a safe, stable environment. Id. at 548.

While the grant of custody to another or the limitation of a parent’s access to a child is not tantamount to absolute termination of parental rights, the State must tread very carefully when it infringes upon a parent’s ability to participate in child rearing. See Troxel, 530 U.S. at 72-73, 120 S.Ct. 2054. Even when it does not terminate rights, a court that trenches on a parent’s ability to rear his or her children may also violate the United States Constitution. Id. at 67,120 S.Ct. 2054. Also, the Texas Supreme Court has recognized that custody determinations as between fit parents can risk a significant deprivation similar to termination of the relationship. See Lewelling v. Lewelling, 796 S.W.2d 164, 168 n. 8 (Tex.1990) (“[w]hile this may not ... technically be a termination of parental rights action, it may have such an effect”; where mother without adequate transportation lives some distance from son, existence of visitation rights is likely to be insufficient to allow her “to have a substantial role in her child’s upbringing”). The weighty interests of parents, children, and the State in a just and accurate decision mandate that “any significant risk of erroneous deprivation is unacceptable.” M.S., 115 S.W.3d at 549 (emphasis added). Our government respects fit parents’ abilities to act in the best interests of their children by applying a presumption that they do so. Troxel, 530 U.S. at 68, 120 S.Ct. 2054. The United States Supreme Court has recognized that, in accord with this presumption, so long as a parent is “fit,” there is normally no reason for the State to inject itself between parent and child or disturb that parent’s rearing of his or her children. Id. at 68-69, 120 S.Ct. 2054. In other words, court interference with the right of a fit parent to bring up his or her own child impacts a fundamental right and may violate the Due Process Clause.

The family code

The family code’s statutory scheme focuses on the children’s welfare and best interests. Tex. Fam.Code Ann. § 153.002 (2002) (“The best interest of the child shall always be the primary consideration of the court in determining the issues of conser-vatorship and possession of and access to the child.”); M.S., 115 S.W.3d at 549; Lenz v. Lenz, 79 S.W.3d 10, 14 (Tex.2002) (reiterating legislature’s mandate that best interest of child is primary consideration). Consistent with legislative mandate, Texas courts have recognized that it is in the best interest of children to have “maximum reasonable visitation” with parents. See Wood v. Wood, 510 S.W.2d 399, 400 (Tex. Civ.App.-Fort Worth 1974, no writ) (lamenting that divorced parents often allow their animosity towards one another to overshadow concern that children maintain healthy relationships with other parent, harming children whether resulting in constant conflict or gradual absence of one parent). The Wood court’s terminology is an incident of its time; the current family code does not use the word “visitation,” and courts have adopted the view that a parent’s time of possession and access should not be considered “visiting with” that parent, but “living with” him or her. See Norris v. Norris, 56 S.W.3d 333, 335 n. 1, 345 (Tex.App.-El Paso 2001, no pet.) (recognizing meaningful distinction between “visiting” and “parenting”). We should recognize that fit parents should be allowed not just to visit, but to parent their children.

Our legislature has pronounced its policy determination in all suits affecting the parent-child relationship:

(a) The public policy of this state is to:
(1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child;
(2) provide a safe, stable, and nonviolent environment for the child; and
(3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.

Tex. Fam.Code Ann. § 153.001(a) (West 2002). It is incumbent upon courts to follow such public policy imperatives in interpreting the family code. Lenz, 79 S.W.3d at 14 (reviewing policy and applying it to modification and relocation context).

The legislature has implemented this policy by directing courts that “[t]he terms of an order that denies possession of a child to a parent or imposes restrictions or limitations on a parent’s right to possession of or access to a child may not exceed those that are required to protect the best interest of the child.” Tex. Fam. Code Ann. § 153.193 (West 2002) (“Minimal Restriction on Parent’s Possession or Access”) (emphasis added). In order to protect children’s abilities to have a meaningful relationship with their parents, the legislature determined that the standard possession order would set a presumptive minimum amount of time for possession of a child by a joint managing conservator parent. Id. § 153.137 (West Supp.2004-05). In its instructions how to apply the “guidelines established in the standard possession order,” the legislature repeated its characterization of the periods as the minimum guaranteed to a joint managing conservator. Id. § 153.251 (West 2002) (standard order is “intended to guide the courts in ordering the terms and conditions for possession of a child by a parent named as a possessory conservator or as the minimum possession for a joint managing conservator”) (emphasis added).

Sadly, in many cases, trial courts attempting to dispose of messy divorces as equitably and expeditiously as possible simply automatically adopt the minimum outlined in the standard possession order without considering whether that order will impose limits upon possession and access in excess of those necessary to protect the best interests of the children. The trial court’s emphasis on the standard possession order in this case is illustrative. The court, in granting Duck’s request for Thursday overnight stays, explained, “That’s in the standard possession schedule and there’s no reason why he can’t make that election and have the standard schedule that every other dad gets.” In denying the Sunday night overnight request, the court opined that the standard possession order was appropriate and that it did not include that night. The court awarded fees to the mother, although she only partially prevailed, because she had to defend against Duck’s unpersuasive Constitutional claims, saying “I think that really if dad had just wanted a Thursday overnight, pursuant to the standard schedule, that would have been hard for mom to resist,” implying that, had Duck merely requested the statutory minimum, the court would not have awarded fees against him. The court appears to have inadvertently substituted the word “reasonable” where the legislature used “minimum” in section 153.137’s direction for the proper application of the standard possession order. The family code does not envision limiting a parent’s time with a child to what “every other dad gets.”

Courts have a responsibility to do more than automatically adopt a standard minimum. Instead, in making and reviewing these decisions we need to recognize that the circumstances of each case will dictate different custody arrangements and that, for the children of Texas, one size does not fit all. Reading sections 153.193 (allowing only necessary limitations on parent’s access), 153.137 (standard order presumptive minimum), and 153.251 (standard order sets minimum for joint managing conservators) together, it appears that, to comply with the family code, every court that imposes limitations on a parent’s right to possession of or access to a child by adopting the standard possession order has made an express or implied finding of fact that that particular limitation on the parent’s time with the child is required to protect the best interests of the child. The legislature has declared a presumption that it is in the child’s best interest to have the minimum amount of time with any reasonably safe parent, and it makes no sense — nor is it authorized — to blindly apply that same minimum of time to a parent who is not merely safe but is an interested and active influence in his or her child’s life without regard to the degree of emotional engagement or bonding between the parent and child. Whatever latitude courts have in setting possession periods, they do not have the discretion to automatically adopt the minimum and ignore the legislature’s explicit directive in section 153.193 to allow maximum feasible time with both parents unless doing otherwise would impair the children’s interests. Standard of Proof and Standard of Review

The legislature has not articulated a standard by which appellate courts should review orders setting possession periods; because trial courts are the fact-finders who determine what is in the children’s best interest, appellate courts have applied an abuse of discretion standard of review. See, e.g., Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982). The discretion courts have in determining the factual issue of children’s best interests, however, is not unfettered. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.1976) (non-exhaustively listing factors courts consider in determining whether termination of parental rights is in children’s best interests); See also In re Jane Doe 2, 19 S.W.3d 278, 282 (Tex.2000) (applying non-exhaustive list of Holley factors “for determining a minor’s best interests” to factual determination of best interest of minor in parental notification case). The supreme court recognized in Jane Doe 2 that a trial court should make explicit fact findings regarding a child’s best interest in order to allow meaningful appellate review. See Jane Doe 2, 19 S.W.3d at 282. Without such findings, it is impossible to meaningfully review any such decisions. Id.

Texas appellate courts’ treatment of best interest determinations in the context of termination of parental rights is inconsistent with their treatment of the best interest determination trial courts are directed to make (and appellate courts must review) in custody and possession decisions. Termination findings, including the best interest finding, survive factual sufficiency challenges only if the following heightened standard is met; the evidence must be such that a reasonable fact finder could form a firm belief or conviction that the findings are correct. C.H., 89 S.W.3d at 18-19. They survive legal sufficiency challenges where, in examining the evidence in the light most favorable to the findings and disregarding evidence a reasonable fact finder could have disbelieved, the appellate court determines that a reasonable fact finder could have formed a firm belief or conviction that the findings are correct. In re J.F.C., 96 S.W.3d 256, 265-66 (Tex.2002). This heightened standard is appropriate because cases involving termination of parental rights require the findings to be based upon clear and convincing evidence. Id. at 264 (citing C.H., 89 S.W.3d at 25). Termination findings must be supported by clear and convincing evidence because termination of the parent-child relationship is a drastic remedy of such weight and gravity that due process requires the state to justify it by more substantial proof than a preponderance of the evidence. C.H., 89 S.W.3d at 23.

Although custody and possession determinations as between parents are not as permanent or drastic as termination of parental rights, those issues can severely limit the relationship and have the potential to profoundly impair the fundamental liberty interest of parents and children in the parent-child relationship. Therefore, I would urge that the standard of proof in the trial court be re-examined. The standard of proof instructs the fact finder on the degree of confidence our society believes it should have in the correctness of factual conclusions for any given adjudication. Santosky, 455 U.S. at 754-55, 102 S.Ct. 1388 (citing Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979)). Thus, the standard reflects the weight and gravity of the interests affected and society’s judgment about how the risk of error should be distributed. Id. at 755, 102 S.Ct. 1388. The United States Supreme Court “has mandated an intermediate standard of proof — ‘clear and convincing evidence’ — when the individual interests at stake in a state proceeding are both ‘particularly important’ and ‘more substantial than mere loss of money.’ ” Id. at 756, 102 S.Ct. 1388 (citing Addington, 441 U.S. at 424, 99 S.Ct. 1804). The Court deemed this level of certainty necessary to preserve fundamental fairness in a variety of proceedings that threaten the individual involved with a significant deprivation of liberty. Id. Whether the loss threatened by any given proceeding is sufficiently grave to warrant requiring a heightened level of certainty turns on the nature of the private interest and the permanency of the threatened loss. Id. at 758, 99 S.Ct. 1804. Where, as here, the threatened loss is compelling, increasing the burden of proof is a way to impress the fact finder with the gravity of the decision. See id. at 764-65, 99 S.Ct. 1804.

The current court-created standard allows a trial court holding severely curtailing parental rights to stand so long as there is some evidence upon which to base its findings and an appellant does not show that the court failed to follow any guiding rules or principles. This standard is inconsistent with the Constitutional nature and weighty import of the rights at issue. See Troxel, 580 U.S. at 72-73, 120 S.Ct. 2054 (fundamental right of parents to rear children cannot be infringed simply because state court has decided it would be better for children). It presents a significant risk of erroneous deprivation of the most sacred of liberty interests of parents and children. See id. at 73, 120 S.Ct. 2054 (citing Pierce, 268 U.S. at 534-35, 45 S.Ct. 571, which holds special liberty interest of parents includes right to direct upbringing of children); M.S., 115 S.W.3d at 549 (significant risk of deprivation unacceptable).

It also falls far short of showing proper respect to the legislature’s deliberate policy decisions commanding Texas courts to support and cultivate relationships between children and their parents so long as those parents are fit and to implement maximum parent-child contact to actively preserve family relationships often made all too fragile by parents’ inabilities to set aside personal animosity long enough to recognize their children’s need for their other parent. The current standards predate such policy determinations and thus, unsurprisingly, fails to take them into account. In Gillespie, the supreme court recited the abuse of discretion standard and supported it by reference to Leithold v. Plass, 413 S.W.2d 698, 700 (Tex.1967), and former Texas Family Code sections 14.01 and 14.05. See Gillespie, 644 S.W.2d at 451. However, “Leithold is based entirely on common, judge-made law. It preceded the enactment of the Family Code, specifically section 153.131, which makes joint custody the public policy of this state.” Dennis v. Smith, 962 S.W.2d 67, 69 (Tex.App.-Houston [1st Dist.] 1997, pet. denied). Leithold, along with the standard it has propagated, is a relic of another time; it distinguished between a change in custody and a change in visitation, concepts the family code no longer favors, by reference to the superior rights one parent enjoyed over the other, which is “a fundamental difference” from the current family code policy favoring joint managing con-servatorship. See Dennis, 962 S.W.2d at 69 (also noting Leithold dissent’s antiquated condemnation of “evil” of “split custody,” apparently born from context in which “the law then endorsed sex discrimination in favor of women, giving them preference in child custody cases,” and contrasting current norms embodied in joint managing conservator statute designed to undo that very construct). The differences between the current and original family code provisions similarly show that the old standard is no longer appropriate. Former chapter 14, governing conservatorship, possession, and access, envisioned appointment of a managing conservator, preferably a parent, essentially giving the trial court the choice between two possible conservators, a choice that was difficult for appellate courts to second-guess. See Act of May 25, 1973, 63d Leg., R.S., ch. 543, 1973 Tex. Gen. Laws 1411, 1422-26, repealed Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 2, 1995 Tex. Gen. Laws 113, 282. Current family code chapter 153, governing conser-vatorship, possession, and access, no longer leaves that broad choice to the trial court; it has effectively chosen both parents as the children’s conservators by providing for joint managing conservatorship, Tex. Fam.Code Ann. § 153.005 (West 2002), articulating the policy that parents should share in the rights and duties of child rearing and have frequent, continuing contact with the child, id. § 153.001, and mandating only minimal restriction on either parent’s possession or access, id. § 153.193. Under former chapter 14, which contained ten sections, trial courts had broad discretion to determine and effectuate children’s best interests. In current chapter 153, containing some sixty sections, in contrast, the legislature has specified and articulated preferences and guidance for courts making conservatorship and possession determinations. In short, the context that gave rise to the abuse of discretion standard of review in these cases — a court having to apply presumptions in favor of one or the other parent and decide what is in a child’s best interest based entirely upon the parties’ credibility and other facts before it — no longer exists. Today’s courts have guidance and responsibilities beyond those existing forty years ago, yet our persistence in applying a lesser standard still allows our judicial system to gloss over the legislature’s directives and affirm a trial court’s authority to rule on the barest of evidence if any reasonable mind could have reached the same conclusion.

Despite the United States Supreme Court’s determination to subject infringement upon such fundamental rights to strict scrutiny and of our own legislature’s mandate to preserve and foster parent-child relationships, Texas courts have developed a jurisprudence under which trial court decisions severely curtailing that relationship stand absent an abuse of discretion. See Gillespie, 644 S.W.2d at 451. Considering the importance of and the risk to the rights at issue and the legislature’s clear mandates that courts take measures to protect this most sacred of relationships, I believe we need to carefully reexamine the standards by which decisions that limit a parent’s access to or possession of a child are made and reviewed.

      . Duck previously had Monday and Thursday evenings with his sons until 8:30 p.m. and Sunday evenings on his weekends until 6:00 p.m.

      . Because Williamson does not complain about the court’s grant of Thursday night possession to Duck or whether a material and substantial change in circumstances justified such a modification, we do not address this issue.

      . The court signed an order granting Duck's petition to modify in suit affecting the parent-child relationship on April 19, 2002. Less than a year later, on February 4, 2003, Duck again filed for modification. His amended petition of December 4, 2003, was the live pleading at the time of the hearing on December 18, 2003.

      . Interestingly, despite the trial court's express finding that there were no changed circumstances justifying a modification in the order, the court granted Duck’s request for modification of the possession order concerning Thursday nights. As Williamson does not appeal the grant of overnight possession on Thursdays, the majority opinion does not address this apparent inconsistency.

      . But see Tex. Fam.Code Ann. § 153.317 (West Supp.2004-05) (extending evening periods including Sundays to the time school begins the following day).

      .Also, the court repeatedly expressed concern that, because the children were thriving under the current order, it would be better to leave the schedule unchanged rather than risk disrupting the children. The idea that more time with a fit parent who is actively engaged in a child's life is potentially a risk or detrimental to a child runs counter to stated legislative policy favoring parental involvement in children’s lives.

      .Under the abuse of discretion standard, we defer to the trial court’s findings because the trial court "is in the best position to observe the demeanor and personalities of the witnesses and can ‘feel’ the forces, powers, and influences that cannot be discerned” from reading a cold record. Norris v. Norris, 56 S.W.3d 333, 338 (Tex.App.-El Paso 2001, no pet.).

      . For instance, the standard possession order completely subjects a parent’s right to have any contact with her child to the discretion of the other parent during periods during which the child is in the other parent's possession, often for days or weeks at a time.


source: Caselaw Access Project

author: BOB McCOY, Justice.

license: Public Domain

text:
    Ex parte Darrin Michael CUMMINS.
    Nos. 2-04-572-CR, 2-04-573-CR.
    Court of Appeals of Texas, Fort Worth.
    July 14, 2005.

      Richard Alley, Fort Worth, for Appellant.
    Tim Curry, Criminal District Atty., Charles M. Mallin, Asst. Criminal District Atty., and Chief of Appellate Section, and Andrea M. Thompson, Asst. Criminal District Atty., Fort Worth, for Appellee.
    Panel B: HOLMAN, GARDNER, and McCOY, JJ.
   OPINION

BOB McCOY, Justice.

I. Introduction

Appellant, Darrin Michael Cummins, appeals from the trial court’s order denying him relief on his application for writ of habeas corpus filed pursuant to article 11.072 of the Texas Code of Criminal Procedure. In one point on appeal, Cummins contends that the trial court abused its discretion in denying him relief. We affirm.

II. Background Facts and Procedural History

On January 21, 2004, pursuant to a plea bargain, Cummins entered a plea of guilty to the felony offense of indecency with a child. On February 9, 2004, the trial court accepted the plea of guilty, approved the plea bargain agreement, and entered an order placing Cummins on deferred adjudication community supervision. Thereafter, on September 27, 2004, Cummings filed an application for writ of habeas corpus pursuant to article 11.072 of the Texas Code of Criminal Procedure arguing that his guilty plea was involuntary because it was the result of the ineffective assistance of counsel. In the writ, Cummins asserts that his trial counsel erroneously advised him that his plea of guilty and placement on deferred adjudication would not affect his employment, and that his trial counsel neither advised him that he could appeal the order nor of the relevant time limits for appeal.

On November 1, 2004, the State filed a written response arguing that Cummins’s writ should be denied because he had presented no evidence of ineffective assistance. Attached to the State’s response was a sworn affidavit from Cummins’s trial counsel asserting, among other things, that she did not advise Cummins that his employment would not be affected and that Cummings had made no indication that he wanted to appeal. The State also attached to its response proposed findings of fact and conclusions of law. On November 16, 2004, the trial court signed an order denying Cummins relief on his application for habeas corpus and adopting the State’s findings of fact and conclusions of law. This appeal followed.

III. Discussion

In his sole point on appeal, Cummins contends that the trial court abused its discretion in denying him the relief sought in his writ of habeas corpus because the trial court failed to follow the standard or comply with the procedures for hearing and evaluation of writs of habeas corpus brought pursuant to article 11.072 of the Texas Code of Criminal Procedure. See Tex.Code CRiM. PROC. Ann. art. 11.072 (Vernon 2005). Specifically, Cummins asserts that the trial court erroneously applied the standard and procedures for evaluating post-conviction writs filed under article 11.07 of the code of criminal procedure, not the standard and procedures for writs filed under article 11.072 where the applicant seeks relief from an order or judgment of conviction ordering community supervision. See id. arts. 11.07, 11.072. He argues that unlike article 11.07, article 11.072 does not authorize the trial court to consider the State’s response or any attachments thereto in evaluating the application, but instead “requires a hearing of some sort, whether on ordered documents or live testimony — or both, unless the application is denied as frivolous.” He argues that an application for habeas corpus filed pursuant to article 11.072 is like a motion for new trial, not a post-conviction writ of habeas corpus, with respect to whether a hearing is required before the relief sought can be denied, and whether the trial court can consider the State’s response and the attachments thereto in evaluating the application. He asserts that as a result of the trial court’s failure to follow the correct statute he was denied his constitutional rights of due process and due course of law because he was denied the opportunity to present evidence supporting his complaint and to confront and cross-examine his former trial counsel. See U.S. Const, amends. V, VI, XIV; Tex. Const, art. I, §§ 3, 10, 13, 19; Tex.Code CRIM. PROC. Ann. arts. 1.04, 1.05, 1.051 (Vernon 2005).

A. Standard of Review

We generally review a trial court’s decision to grant or deny relief on a writ of habeas corpus under an abuse of discretion standard of review. Ex parte Mann, 34 S.W.3d 716, 718 (Tex.App.-Fort Worth 2000, no pet.); Ex parte Ayers, 921 S.W.2d 438, 440 (Tex.App.-Houston [1st Dist.] 1996, no pet.). However, “an abuse of discretion review of trial court decisions is not necessarily appropriate in the context of the application of law to facts when the decision does not turn on the credibility or demeanor of witnesses.” Ex parte Martin, 6 S.W.3d 524, 526 (Tex.Crim.App. 1999); see also Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). Instead, an appellate court must conduct a de novo review when “the trial judge is not in an appreciably better position than the reviewing court to make that determination.” Guzman, 955 S.W.2d at 87; see also Mann, 34 S.W.3d at 718.

B. Statutory Construction and Analysis

When we interpret statutes ... we seek to effectuate the “collective” intent or purpose of the legislators who enacted the legislation. Camacho v. State, 765 S.W.2d 431 (Tex.Cr.App.1989). We do so because our state constitution assigns the law making function to the Legislature while assigning the law interpreting function to the Judiciary. See Tex. Const, art. II, § 1.
When attempting to discern this collective legislative intent or purpose, we necessarily focus our attention on the literal text of the statute in question and attempt to discern the fair, objective meaning of that text at the time of its enactment. We do this because the text of the statute is the law in the sense that it is the only thing actually adopted by the legislators, probably through compromise, and submitted to the Governor for her signature. We focus on the literal text also because the text is the only definitive evidence of what the legislators (and perhaps the Governor) had in mind when the statute was enacted into law. There really is no other certain method for determining the collective legislative intent or purpose [that] was dominant at the time of enactment. Yet a third reason for focussing [sic] on the literal text is that the Legislature is constitutionally entitled to expect that the Judiciary will faithfully follow the specific text that was adopted.
Thus, if the meaning of the statutory text, when read using the established canons of construction relating to such text, should have been plain to the legislators who voted on it, we ordinarily give effect to that plain meaning. Smith v. State, 789 S.W.2d 590, 592 (Tex.Cr.App. 1990). “ “Where the statute is clear and unambiguous, the Legislature must be understood to mean what it has expressed, and it is not for the courts to add or subtract from such a statute.’ ” Coit v. State, 808 S.W.2d 473, 475 (Tex. Cr.App.1991) (quoting Ex parte Davis, 412 S.W.2d 46, 52 (Tex.Cr.App.1967)).

Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim.App.1991).

Article 11.072 of the Texas Code of Criminal Procedure establishes the procedures for writs of habeas corpus in felony or misdemeanor cases where the applicant seeks relief from an order or judgment of conviction ordering community supervision. Tex.Code CRiM. PROC. Ann. art. 11.072, § 1. As to the procedures for the trial court’s evaluation of the writ, article 11.072 provides, in relevant part:

Sec. 6. (a) Not later than the 60th day after the day on which the state’s answer is filed, the trial court shall enter a written order granting or denying the relief sought in the application.
(b) In making its determination, the court may order affidavits, depositions, interrogatories or a hearing, and may rely on the court’s personal recollection. Sec. 7. (a) If the court determines from the face of the application or documents attached to the application that the applicant is manifestly entitled to no relief, the court shall enter a written order denying the application as frivolous. In any other case, the court shall enter a written order including findings of fact and conclusions of law. The court may require the prevailing party to submit a proposed order.

Tex.Code CRiM. PROG Ann. art. 11.072, §§ 6, 7.

On the other hand, article 11.07 of the code of criminal procedure sets forth the procedures for post-conviction writs of ha-beas corpus in felony non-death penalty cases. See id. art. 11.07, § 1. Article 11.07 provides, in relevant part:

Sec. 3. (c) Within 20 days of the expiration of the time in which the state is allowed to answer, it shall be the duty of the convicting court to decide whether there are controverted, previously unresolved facts material to the legality of the applicant’s confinement.... If the convicting court decides that there are no such issues, the clerk shall immediately transmit to the Court of Criminal Appeals a copy of the application, any answers filed, and a certificate reciting the date upon which that finding was made. Failure of the court to act within the allowed 20 days shall constitute such a finding.
(d) If the convicting court decides that there are controverted, previously unresolved facts which are material to the legality of the applicant’s confinement, it shall enter an order within 20 days of the expiration of the time allowed for the state to reply, designating the issues of fact to be resolved. To resolve those issues the court may order affidavits, depositions, interrogatories, and hearings, as well as using personal recollection ....

Id. art. 11.07, § 3(c), (d).

In support of his contention that the trial court applied the standard and procedures found in article 11.07, Cum-mins points out that the trial court, in certifying his right to appeal, indicated that the appeal was taken from a post-conviction writ. He also points out that the trial court denied him relief without a hearing on the basis of the State’s response, which included the ex parte affidavit of his former trial counsel.

While it is true that the trial court, in certifying Cummins’s right to appeal, indicated that the appeal was from an appeal-able order denying a post-conviction writ, that certification does not persuade us that the trial court applied the standard and procedures for post-convictions writs found in article 11.07. Cummins’s application for habeas corpus clearly indicates that it was filed pursuant to article 11.072 of the Texas Code of Criminal Procedure, as does the State’s response, and we find nothing in the trial court’s order denying the requested relief, or in its findings of fact and conclusions of law, to indicate that the application was denied pursuant to any other section of the code. Nor does the trial court’s denial of relief, without a hearing, based upon Cummins’s application, the State’s response, or the affidavit of Cum-mins’s trial counsel, lead us to the conclusion that the trial court employed the wrong statute.

Contrary to Cummins’s assertion, we find nothing in article 11.072 requiring the trial court to “order” documents or to conduct a hearing on an application for habeas corpus before rendering its decision on the relief sought. See id. art. 11.072. While section 6(b) clearly indicates that in making its determination the trial court may order affidavits, depositions, interrogatories, or a hearing, it does not require that the trial court do so. See id. art. 11.072, § 6(b). In addition, we find nothing in article 11.072 prohibiting the trial court from considering evidence filed with the application or with the State’s response. See id. art. 11.072. In that regard, section 7 of article 11.072 refers to the trial court’s consideration of “documents attached to the application,” albeit in determining if the application is frivolous, but that language combined with the permissive language found in section 6 leads us to conclude that the legislature did not intend to prohibit the trial court from considering such evidence without hearing. See id. art. 11.072, §§ 6, 7.

We also find Cummins’s argument that applications for habeas relief filed pursuant to article 11.072 should be treated like a motion for new trial unpersuasive. An application for habeas corpus is not like a motion for new trial in the sense that a habeas proceeding is not part of the underlying criminal prosecution against the applicant. See Greenwell v. Court of Appeals istia, Jud. Dist., 159 S.W.3d 645, 650 (Tex.Crim.App.2005) (indicating a ha-beas proceeding is separate from the underlying criminal prosecution). In addition, we find no indication in article 11.072 that the legislature intended for the trial court to treat applications for habeas relief, filed pursuant to that article, like motions for new trial. Compare Tex.Code CRIM. PROC. Ann. art. 11.072 with Tex. R.App. P. 21. Further, because the language of articles 11.07 and 11.072 are very similar, we believe that the legislature intended for article 11.072 applications to be treated much like applications submitted under article 11.07. Compare Tex.Code Crim. Proc. Ann. art. 11.07 with TexCode Crim. PROC. Ann. art. 11.072.

As to the merits of Cummins’s writ, to prevail on a writ of habeas corpus, the proponent must prove his allegations by a preponderance of the evidence. See Ex parte Thomas, 906 S.W.2d 22, 24 (Tex. Crim.App.1995); Ex parte Adams, 707 S.W.2d 646, 648 (Tex.Crim.App.1986); Barnes v. State, 70 S.W.3d 294, 301 (Tex. App.-Fort Worth 2002, pet. ref d). Here, although Cummins alleges in his application for -writ of habeas corpus that his trial counsel was ineffective, he offered no evidence supporting his allegations. He did, however, in his prayer request a hearing on the merits. The State responded that no hearing was necessary as the trial court could resolve the matter based on the record. The State pointed out that Cummins had offered no evidence of his assertions and that he bore the burden of proof. In addition, the State tendered the sworn affidavit of Cummins’s trial counsel responding to the assertions in Cummins’s writ. Cummins did not reply to the State’s assertion that no hearing was necessary, offer any evidence controverting the sworn affidavit of his former trial counsel, or move to strike the affidavit.

Thus, based upon the evidence before the trial court at the time of its ruling, we cannot say that the trial court abused its discretion in denying Cummins relief. We overrule Cummins’s sole point on appeal.

IV. Conclusion

Having overruled Cummins’s sole point on appeal, we affirm the trial court’s judgment.

      . Cummins does not challenge the constitutionality of article 11.072; rather, his argument is that the trial court denied him his due process and due course of law by failing to follow article 11.072. See Tex.Code Crim. Proc. Ann. art. 11.072. Accordingly, we do not address the constitutionality of article 11.072.


author: Justice WHITTINGTON.

text:
    In the Interest of L.S.C., a Child.
    No. 05-04-00905-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 2, 2005.
    Rehearing Overruled Sept. 6, 2005.

      Loretta A. Keller, Plano, for Ad Litem.
    Corwin L. Teltschik, L.T. Bradt, Houston, for appellant.
    Duke Elton Hooten, Texas Department of Protective and Regulatory Services, Austin, Robert O. Hultkrantz, Hardin, House, Hultkrantz & Associates, McKinney, for appellee.
    Before Justices WHITTINGTON, MOSELEY, and LANG-MIERS.
   OPINION

Opinion by

Justice WHITTINGTON.

Richard Chrisman appeals the trial court’s judgment (i) denying Richard’s request to terminate the parental rights of his former wife, Indira Ruth Chrisman, (ii) appointing both Richard and Indira joint managing conservators of their child, L.S.C., (iii) granting Indira the exclusive right to determine primary physical residence of L.S.C., and (iv) ordering Richard’s access to L.S.C. be limited to supervised visitation for four hours the first, third, and fifth weeks of each month. In fourteen issues, Richard contends the trial judge erred in (i) denying Richard’s motions to dismiss the Texas Department of Protective and Regulatory Services (the “TDPRS”) from the case, (ii) making incorrect rulings on discovery, (iii) admitting certain evidence, (iv) entering a judgment that is contrary to the law and evidence, (v) entering findings of fact and conclusions of law that are against the overwhelming weight of the evidence, and (vi) denying his motion for partial new trial or motion for judgment notwithstanding the verdict. He also claims the jury’s findings regarding Indira and denying termination of her parental rights are “contrary to the uncontroverted evidence of abuse to the child.” For the reasons that follow, we reverse that portion of the trial court’s judgment addressing conservatorship, possession, visitation, and child support of L.S.C. and remand for further proceedings consistent with this judgment.

PROCEDURAL BACKGROUND

Richard and Indira were married August 29, 1997. The following year, they had a son, L.S.C. They later separated, and Richard filed for divorce on October 16, 2001. Both parents were appointed joint temporary managing conservators with Richard having the exclusive right to establish L.S.C.’s primary residence. L.S.C. lived with Richard during the week and spent weekends with Indira. In April 2002, Richard filed a motion to modify the temporary orders, alleging that Indira was abusing L.S.C. The trial judge denied the motion. On May 2, 2002, the TDPRS filed a petition seeking to terminate both Richard’s and Indira’s parental rights and asking that the TDPRS be named temporary managing conservator of L.S.C. Attached to the petition was TDPRS-employee Michelle Hiza’s five-page, single-spaced affidavit detailing the TDPRS’s involvement in the case, beginning in October 2001. That same day, the trial judge appointed the TDPRS temporary managing conservator of L.S.C., who was subsequently placed in a foster home.

On February 13, 2003, Richard filed his first amended petition for divorce and for termination of Indira’s parental rights and original answer, asking, in part, that the judge remove the TDPRS as temporary managing conservator and appoint him as temporary sole managing conservator. That same day, the trial judge signed a memorandum and order, continuing the TDPRS as temporary managing conservator and setting deadlines for certain evaluations and discovery. The following month, the TDPRS filed its first amended petition, dropping its previous request to terminate both parents’ rights and asking that Indira be named managing conservator of L.S.C. In the alternative, the TDPRS asked to be continued as temporary managing conservator. May 2, 2003 marked the one-year anniversary of the trial court’s order appointing the TDPRS temporary managing conservator; May 5, 2003 was the Monday following the one-year anniversary. On May 27, 2003, Richard filed a motion to dismiss the TDPRS from the suit on the ground that the trial judge had not entered an order as required by the family code. Although he did not rule on Richard’s motion to dismiss, the trial judge later entered a June 16, 2003 order which repeated the substance of a previous order ruling on Richard’s motion to compel and motion to modify corrected memorandum, including ordering counsel to confer and present an agreed scheduling order. The order then added:

Pursuant to Sec. 263.401, Tex. Fam. Code, and in consideration of the Court’s findings in the Permanency Hearing Order from the February 13, 2003 hearing, the Court determines that the date for dismissal of this cause shall be October 31, 2003.
The Court finds that these orders are necessary and are in the best interest of the child.

On September 3, 2003, Richard filed his second motion to dismiss the TDPRS, alleging that the trial judge and the TDPRS had failed to schedule and hold a permanency hearing or status review as required by section 263.305 of the family code. The motion was denied in an order dated October 4, 2003. Following a seven-day jury trial, Richard filed a November 4, 2003 amended motion to dismiss the TDPRS. On March 5, 2004, the trial judge signed the final divorce decree and judgment in this case.

Motions to Dismiss

In his first four issues, Richard claims the trial judge erred in denying his timely filed motions to dismiss the TDPRS from this case. Under these issues, Richard contends the TDPRS should have been dismissed because the trial judge failed to (i) enter, on or before the one-year deadline of May 5, 2003, an order complying with section 263.401(b) of the family code, (ii) hold a permanency hearing or status review no later than the 120th day after February 13, 2003 as required under section 263.305, and (in) render a final order or dismiss the suit by October 31, 2003 as required by section 263.401(c). We agree that the TDPRS should have been dismissed from this suit.

In a suit affecting the parent-child relationship, unless the trial judge renders a final order or grants an extension on “the first Monday after the first anniversary of the date” of the temporary order appointing the TDPRS as temporary managing conservator of the child, the judge “shall dismiss the suit affecting the parent-child relationship filed by the department.” Tex. Fam.Code Ann. § 263.401(a) (Vernon 2002) (emphasis added); In re Neal, 4 S.W.3d 443, 445 (Tex.App.-Houston [1st Dist.] 1999, orig. proceeding [mand. denied] ). Alternatively, the judge may retain “the suit on the court’s docket for a period not to exceed 180 days after the time described in Subsection (a)” if the judge finds that continuing the TDPRS as temporary managing conservator is “in the best interest of the child.” Tex. Fam.Code Ann. § 263.401(b); see In re Ludwig, 150 S.W.3d 819, 822 (TexApp.-Austin 2004, orig. proceeding [mand. pending]). If the judge retains the case, he “shall render an order” (i) scheduling the new dismissal date of the suit not later than the 180th day after the time described in subsection (a); (ii) making further temporary orders for the safety and welfare of the child as needed; and (ii) setting a final hearing date that allows the court to render a final order before the required date for dismissal of the suit under this subsection. Tex. Fam.Code Ann. § 263.401(b); In re Bishop, 8 S.W.3d 412, 418 (Tex.App.-Waco 1999, orig. proceeding [mand. denied]) (holding that to grant extension, judge must render extension order which must schedule new date for dismissal). If the trial judge “grants an extension but does not render a final order or dismiss the suit on or before the required date for dismissal under Subsection (b), the court shall dismiss the suit.” Tex. Fam.Code Ann. § 263.401(c); In re B.T., 154 S.W.3d 200, 206 (Tex.App.-Fort Worth 2004, orig. proceeding) (if trial court grants extension but does not render final order within 180-day period, it must dismiss suit); In re Ludwig, 150 S.W.3d at 822. The time restraints imposed by section 263.401 are mandatory and not subject to modification by agreement. Tex. Fam. Code Ann. § 263.402 (Vernon 2002); In the Interest of J.W.M., 153 S.W.3d 541, 544 (Tex.App.-Amarillo 2004, orig. proceeding [pet. denied]); In re Ludwig, 150 S.W.3d at 823.

May 27th Motion to Dismiss

In his first issue, Richard contends the trial judge erred in not granting his May 27, 2003 motion to dismiss for failure to enter an extension order as required by section 263.401(a).

The trial judge appointed the TDPRS as temporary managing conservator of L.S.C. on May 2, 2002. Under the statute, the judge was required to dismiss the TDPRS’s suit on May 5, 2003, unless he rendered a final order or retained the case on the court’s docket by rendering an order continuing TDPRS as temporary managing conservator of L.S.C. On May 5, 2003, however, the trial judge neither rendered a final order nor rendered an order continuing TDPRS as temporary managing conservator of L.S.C. On May 27, 2003, Richard filed a motion to dismiss TDPRS from the suit, stating the judge had not entered the orders as required by section 263.401(a). Although the judge did not expressly rule on Richard’s motion, he issued an order, dated June 16, in which he set October 31, 2003 as the new dismissal date of the cause and found that the order was in the best interest of the child.

The trial judge did not enter an order on May 5, 2003 retaining the case on the court’s docket or continuing TDPRS as temporary managing conservator. Thus, the judge failed to comply with the requirements of section 263.401(a) of the family code. See Tex. Fam.Code Ann. § 263.401(a) (Vernon 2002). As of May 6, 2003, this case was in a state of legal limbo, without a new dismissal date within 180 days as required by section 263.401(b)(1), without further temporary orders to protect the continued safety and welfare of the child as required by section 263.402(b)(2), and without a final hearing date within 180 days as required by section 263.401(b)(3). Because the trial judge failed to enter an order on or before the first Monday following the one-year anniversary date as mandated by the family code, we sustain Richard’s first issue.

In reaching this conclusion, we reject the TDPRS’s argument on appeal that Richard waived the right to complain about the trial judge’s failure to enter an order extending the case beyond one year as required by section 263.401. The TDPRS bases its argument on the fact that, in February 2003, Richard filed a motion objecting to a February 13th scheduling order in which he withdrew his objection to extending the one-year deadline and asked the judge to extend the April 7, 2003 trial date. By filing a motion withdrawing his objection to extending the one-year deadline and asking for an extension of the April 7 trial date, Richard did waive the right to complain about whether continuation of the TDPRS as the temporary managing conservator was in the best interest of the child. However, he did not waive the right to complain that the trial judge failed to enter an extension order containing all the elements required by the statute. See Tex. Fam.Code Ann. § 263.401(a) (“Unless the court has rendered a final order or granted an extension under Subsection (b), on the first Monday after the first anniversary of the date the court rendered a temporary order appointing the department as temporary managing conservator, the court shall dismiss the suit affecting the parent-child relationship filed by the department that requests termination of the parent-child relationship or requests that the department be named conservator of the child.”) (emphasis added). The entry by the trial judge of an extension order as required by section 263.401(b) insures that a case involving a child in the TDPRS’s care is resolved in a timely and expeditious manner. This requirement is separate and distinct from a determination whether continuing the TDPRS as temporary managing conservator is in the best interest of the child. Therefore, Richard did not waive his right to complain of the trial judge’s failure to enter an order setting a new dismissal date and a final hearing date. See Tex. Fam.Code Ann. § 268.401(b).

September 3rd Motion to Dismiss

Richard filed another motion to dismiss the TDPRS on September 3, 2003, arguing that the failure to hold a permanency hearing within 120 days of the February 13, 2003 hearing violated the family code. Section 263.305 provides

A subsequent permanency hearing before entry of a final order shall be held no later than the 120th day after the date of the last permanency hearing in the suit. For good cause shown or on the court’s own motion, the court may order more frequent hearings.

Tex. Fam.Code Ann. § 263.305 (Vernon 2002). Again, the language of the statute is mandatory, requiring the court to hold a permanency hearing. The tidal judge erred in failing to hold a permanency hearing no later than June 13, 2003.

November 4th Motion to Dismiss

Finally, Richard filed his November 4, 2003 amended motion to dismiss the TDPRS. In this motion to dismiss, Richard reiterated his prior claim that the trial judge failed to sign an order extending the case beyond the one-year time period contemplated by section 263.401. He also alleged that, assuming an extension had been granted, the judge failed to render a final order by the required dismissal date, i.e., by the 180th day after the first Monday after the first anniversary of the date of the temporary order appointing the TDPRS as temporary managing conservator of the child. The record shows final judgment was signed March 5, 2004, well outside the 180 days contemplated by the family code. Furthermore, during oral argument before the Court, the TDPRS conceded the trial judge erred in not granting Richard’s November 4, 2003 motion to dismiss in light of the fact that no final order was rendered on or before the dismissal date of October 31, 2003. In light of the above, we conclude the trial judge erred in failing to grant Richard’s November 4, 2003 amended motion to dismiss TDPRS from the suit. See Tex. Fam.Code Ann. § 263.401(c).

HARM

Having concluded the trial judge erred, we must address whether Richard was harmed by the trial judge’s failure to dismiss the TDPRS from the suit. See Tex.R.App. P. 44.1(a)(1) (no judgment may be reversed on appeal on ground trial court erred unless appellate court concludes error complained of probably caused rendition of improper judgment). After considering the record and history of this case, we conclude Richard was harmed by the trial judge’s failure to grant his May 27th and November 4th motions to dismiss. The TDPRS was not a nominal party in this case; rather, the TDPRS aggressively litigated the ease and was Richard’s most vigorous opponent on issues relating to the child. Further, TDPRS made arguments during trial that only the agency could make. During closing argument, the TDPRS argued the agency had, up until that moment in trial, been L.S.C.’s “shield” and that the agency had to “pass the baton” to the jury to protect L.S.C. Given the badge of authority imbued upon a state agency such as the TDPRS, we cannot conclude its participation at trial was harmless. Indeed, we conclude the zealous advocacy by the TDPRS, which should not have been a party in the case after May 5, 2003, probably caused the rendition of an improper judgment against Richard. Having concluded Richard was harmed by the trial judge’s failure to grant the May 27th and November 4th motions to dismiss, we need not address whether he was harmed by the failure to grant the September 3rd motion to dismiss for failure to hold a permanency hearing.

We sustain Richard’s first four issues. In light of our disposition of these four issues, we conclude we need not address Richard’s remaining issues. See Tex. R.App. P. 47.1.

We reverse that portion of the trial court’s judgment addressing conservator-ship, possession, visitation, and child support of L.S.C. and remand that portion for further proceedings consistent with this judgment. See Tex.R.App. P. 44.1(b) (“If error affects part of, but not all, the matter in controversy and that part is separable without unfairness to the parties, the judgment must be reversed and a new trial ordered only as to the part affected by the error.”).


author: FELIPE REYNA, Justice. BILL VANCE, Justice,

text:
    In re TEXAS GENCO, LP, n/k/a Texas Genco II, LP.
    No. 10-05-00239-CV.
    Court of Appeals of Texas, Waco.
    Aug. 10, 2005.

      John Anaipakos, Baker & Botts, Houston, Joe B. Cannon, Cannon & Simmons, Groesbeck, David E. Jackson, Jackson, Sjoberg McCarthy & Wilson, Austin, for appellant/relator.
    Brian D. Melton, Susman Godfrey LLP, Houston, Bobby Reed, Reed & Reed, Gro-esbeck, Roger Townsend, Alexander, Du-bose Jones & Townsend LLP, Austin, for other.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

FELIPE REYNA, Justice.

Texas Genco seeks a writ of mandamus directing Respondent, the Honorable H.D. Black, Jr., Judge of the 77th District Court of Freestone County, to vacate an order permitting Valence Operating Company to depose Texas Genco’s chief executive officer. We will conditionally grant the requested relief.

Texas Genco operates a power plant located on property in Limestone and Freestone Counties and known as the Limestone Electric Generating Station. Texas Genco also owns the surface estate of a neighboring 392-acre tract of land which is designated as a solid waste facility for the disposal of waste byproducts generated by the plant. Valence owns significant mineral interests in the disposal site property.

Valence obtained a permit from the Railroad Commission to drill a gas well on the property, entered the land, and prepared a site for the well. Texas Genco filed suit seeking a temporary restraining order and seeking to enjoin Valence from drilling the well. Texas Genco’s suit contends that Valence’s drilling activities breach Valence’s duty to accommodate Texas Gen-co’s rights as the owner of the surface estate because drilling at the contemplated location “would permanently and irreversibly damage [Texas Genco’s] long-planned, TCEQ-approved use of the land as a Disposal Site.”

Valence contends that its operations will not interfere with Texas Genco’s current use of the property because Texas Genco is not presently disposing (and has never disposed) of waste byproducts from the Limestone Plant at the property. Thus, Valence argues that discovery regarding profitability, revenues, and costs for the Limestone Plant and regarding Texas Genco’s future plans for the Limestone Plant are “critical” to determine whether the proposed drilling will substantially impair Texas Genco’s use of the land.

When Valence sought to depose Texas Genco CEO Jack Fusco, Texas Genco responded with a motion to quash Fusco’s deposition notice and, in response to Valence’s motion to compel, a motion for protection. Texas Genco supported its motion for protection with Fusco’s affidavit, which states in pertinent part:

• “I am the Chief Executive Officer of Texas Genco LLC.... Prior to [Texas Genco’s] acquisition [of the Limestone Plant] in December 2004, I had no involvement in the operation or management of the Limestone Plant....”
• “I have no specialized or unique knowledge of the operations of the Limestone Plant, or of its landfill. I have no personal knowledge of Texas Genco’s disputes with Valence concerning the landfill at the Limestone Plant, or of this lawsuit, other than what has been reported to me by our Chief Legal Officer, outside counsel, and whatever information about the litigation was included in due diligence materials related to the acquisition of the plants from Texas Genco Holdings, Inc.”
• “The Limestone Plant has its own management, which is responsible for its day to day operations, including the landfill. Don Poe is the manager of the Limestone Plant. Mr. Poe does not report directly to me.”

At a hearing on the parties’ competing motions, Valence argued that Fusco should be deposed because: (1) he was “the chief architect” of the transaction by which Texas Genco purchased assets from Center-point Energy, including the Limestone Plant and knows the details of that transaction; (2) he has “relevant information about the transaction, valuation, profitability, [and] how [the Limestone Plant fits within] the grand scheme [of Texas Genco operations]”; and (3) Valence has been unable to obtain this information in the depositions of two other witnesses offered by Texas Genco.

Texas Genco replied that Fusco should not be ordered to submit to a deposition because Valence did not show that he possesses unique or superior personal knowledge of discoverable information.

Respondent granted Valence’s motion to compel and denied Texas Genco’s motion for protection.

Texas Genco contends that the court abused its discretion by permitting Valence to depose Fusco because Valence did not show that: (1) Fusco has “any unique or superior personal knowledge of discoverable information”; or (2) less intrusive means of discovery have proven insufficient.

According to the apex deposition doctrine, when a party seeks to depose a high level corporate official, a corporation may seek to shield the official from the deposition by filing a motion for protection supported by the official’s affidavit denying knowledge of any relevant facts. In re Alcatel USA Inc., 11 S.W.3d 173, 175 (Tex.2000) (orig.proceeding). A trial court determines such a motion by first deciding whether “the party seeking the deposition has ‘arguably shown that the official has any unique or superior personal knowledge of discoverable information.’ ” Id. at 175-76 (quoting Crown Cent. Petroleum Corp. v. Garcia, 904 S.W.2d 125, 128 (Tex.1995) (orig.proceeding)).

“If the party seeking the deposition cannot show that the official has any unique or superior personal knowledge of discoverable information, the trial court should” not allow the deposition to go forward without a showing, after a good faith effort to obtain the discovery through less intrusive means, “(1) that there is a reasonable indication that the official’s deposition is calculated to lead to the discovery of admissible evidence, and (2) that the less intrusive methods of discovery are unsatisfactory, insufficient or inadequate.”

Id. at 176 (quoting Crown Cent. Petroleum, 904 S.W.2d at 128).

Valence cites In re Columbia Rio Grande Healthcare, L.P. for the proposition that Fusco’s affidavit did not adequately deny knowledge of relevant facts to invoke the apex deposition analysis. 977 S.W.2d 433 (TexA.pp.-Corpus Christi 1998, orig. proceeding). Texas Genco relies on a more recent decision of the Fort Worth Court to support its contention that Fusco’s affidavit is sufficient. See In re Burlington N. & Santa Fe Ry., 99 S.W.3d 323 (Tex.App.-Fort Worth 2003, orig. proceeding).

In Columbia Rio Grande Healthcare, a negligent credentialing case, Columbia identified its CEO in discovery as “the person most knowledgeable regarding [physician contracts].” 977 S.W.2d at 434. The plaintiffs sought to depose the CEO, and Columbia filed a motion to quash the deposition notice. The trial court denied this motion. The appellate court denied Columbia’s mandamus petition, concluding that, even though the CEO in his affidavit “denied personal knowledge of many aspects of the lawsuit,” he did not deny knowledge of the hospital’s physician contracts or of the hospital’s credentialing practices, and he did not broadly deny “any knowledge of relevant facts.” Id.

Conversely, in the Burlington Northern case, the court concluded that the corporate executive’s statements in his affidavit (1) that he had no knowledge of the facts of the suit, (2) that he had “no unique or superior knowledge or information regarding any aspect of this case,” and (3) that he had “no personal knowledge of the condition of [the railroad] crossing at the time of the accident made the basis of this suit,” were sufficient to invoke the apex deposition analysis, even though the executive did not generally deny knowledge of any relevant facts. 99 S.W.3d at 326 n. 3.

Here, Fusco stated in his affidavit that he had no involvement in the operations of the Limestone Plant before Texas Genco purchased the plant in December 2004 (more than two months after Valence applied with the Railroad Commission for its drilling permit). Fusco also stated that he has “no specialized or unique knowledge of the operations of the Limestone Plant, or of its landfill.” (emphasis added).

The issue in the underlying lawsuit is whether Valence’s proposed well will preclude or impair “an existing use by the surface owner.” Tarrant County Water Control & Improvement Dist. v. Haupt, Inc., 854 S.W.2d 909, 911 (Tex.1993) (quoting Getty Oil Co. v. Jones, 470 S.W.2d 618, 622 (Tex.1971)).

Fusco denied having any specialized or unique knowledge of the day-to-day operations of the Limestone Plant or of the disposal site where Valence desires to drill. We hold that Fusco sufficiently denied knowledge of any relevant facts regarding any existing usage of the disposal site to shift the burden to Valence to show otherwise. See Alcatel USA, 11 S.W.3d at 175-76; Burlington N. & Santa Fe Ry., 99 S.W.3d at 326.

Valence responded by arguing that Fusco’s central role in conceiving and implementing the multibillion dollar transaction which included the purchase of the Limestone Plant establishes that Fusco has specialized knowledge regarding the value of the Limestone Plant, its significance to Texas Genco, and the plans for its future operations. Although Fusco may well possess such knowledge, his knowledge of the financial aspects of Texas Gen-co’s operations has little bearing on the current uses of the disposal site where Valence intends to drill its well. Accordingly, we hold that Valence failed to arguably show that Fusco “has any unique or superior personal knowledge of discoverable information.” See Alcatel USA, 11 S.W.3d at 175.

Nevertheless, Valence also contends that it has been unable to obtain the discovery it needs by less intrusive means. Id. at 176. To support this contention, Valence argues that (1) Texas Genco has vigorously resisted complying with written discovery requests for several months and (2) Valence has deposed two Texas Genco employees with unsatisfactory results. However, Valence made only the latter argument in the hearing on its motion to compel. Thus, we consider only the latter argument on the issue of whether Valence has been unable to obtain the discovery it seeks by less intrusive means. Cf. In re Wharton, — S.W.3d -, -, No. 10-04-00315-CV, 2005 WL 1405732, at *3-4 & *6, 2005 Tex.App. LEXIS 4572 at 13-14 & n. 8 (Tex.App.-Waco June 15, 2005, orig. proceeding) (declining to consider evidence not presented to the respondent in the underlying proceeding).

Texas Genco notes that Valence has not served a deposition notice under Rule of Civil Procedure 199.2(b)(1) requiring Texas Genco to designate one or more witnesses to testify on its behalf.

On the mandamus record properly before us, we hold that Valence failed to show that it has “made a reasonable effort” to obtain the information sought through less intrusive means of discovery. See In re Daisy Mfg. Co., 17 S.W.3d 654, 658 (Tex.2000) (orig.proceeding). Thus, Respondent abused his discretion by denying Texas Genco’s motion for protection.

Texas Genco has no adequate remedy at law. In re El Paso Healthcare Sys., 969 S.W.2d 68, 75 (Tex.App.-El Paso 1998, orig. proceeding). Therefore, we conditionally grant the requested writ of mandamus. The writ will issue only if Respondent fails to advise this Court in writing within fourteen days after the date of this opinion that he has vacated the order requiring Texas Genco to produce Fusco for deposition.

Justice VANCE dissenting.

BILL VANCE, Justice,

dissenting.

The action of the court is void because Chief Justice Gray is disqualified. Even if it is not void, the trial judge did not abuse his discretion when he denied the motion to quash the deposition of Jack Fusco, CEO of the Relator, which is the party that filed the underlying suit. Accordingly, I dissent.

Chief Justice Gray filed a “Certification of Disqualification” in Cause No. 10-05-00244-CV, another mandamus proceeding in which CenterPoint Energy, Inc. was the Relator. See In re Centerpoint Energy, Inc., No. 10-05-00244-CV (Tex.App.-Waco June 6, 2005, certification). The issue in that case arose in the same underlying case, when the Real Party in Interest filed a notice to take the deposition of Center-Point’s CEO David McClanahan. We conditionally issued a writ of mandamus. See In re Centerpoint Energy, Inc., 2005 WL 1531827 at *9-10 (Tex.App.Waco June 29, 2005, orig. proceeding).

The Petition for Writ of Mandamus in this case explains: “At the time this lawsuit was filed, Texas Genco, LP was an indirect, wholly-owned subsidiary of Cen-terPoint Energy, Inc.... In December 2004, Texas Genco, LLC — through its wholly-owned subsidiary Texas Genco II, LP — acquired all of Texas Genco’s nonnuclear power generation assets, including the Limestone Plant, from Center-Point. ... Accordingly, Texas Genco II, LP is Texas Genco, LP’s successor.” The reporter’s record filed in this proceeding shows that the separate motions to quash, filed by CenterPoint and Relator, were heard, and denied, in the same hearing.

For reasons not entirely clear, Chief Justice Gray communicated directly to the parties on June 29, 2005, by letter signed only by him, that (1) his wife is represented by Susman Godfrey, counsel for Valence Operating Company, the Real Party in Interest, (2) his wife owns stock in CenterPoint Energy, Inc., and (3) although she formerly owned stock in Texas Genco, the Relator, it was sold in a forced sale in the Fall of 2004. He expressed the opinion that he is not disqualified or subject to recusal but set a deadline of July 20 for filing such a motion. That letter was neither approved by nor joined by any other justice.

After counsel for Texas Genco responded, Chief Justice Gray again communicated directly to the parties on July 6, by a letter signed only by him, raising “two issues regarding Center Point’s involvement” and asking these questions:

• Has CenterPoint been, or is it likely to be, a party to the underlying litigation?
• Is there any way that CenterPoint is or could be impacted financially as a result of the underlying litigation?
• Is Centerpoint now simply a person from whom discovery is sought that is no longer a party to the underlying litigation?
• Whether the prior involvement of Cen-terPoint as a party in this litigation, and the prior ownership interest in Genco, is a ground for constitutional disqualification or for recusal?
• What is the nature of the discovery sought from CenterPoint?
• If the discovery could be material to the result, is it different than if the discovery provided by CenterPoint is largely uncontested or otherwise immaterial?

The letter asks for briefing on the first four questions. As with the first letter, neither of the other justices on the panel in this case approved the letter nor joined in sending it.

Why is this important? Because disqualification on constitutional grounds cannot be waived and may be raised even after the judgment is beyond appeal. Fry v. Tucker, 146 Tex. 18, 202 S.W.2d 218, 221-22 (1947). An order or judgment rendered by a constitutionally disqualified judge is void. See In re Union Pac. Resources Co., 969 S.W.2d 427, 428 (Tex. 1998) (orig.proceeding). A disqualification is a disqualification; it does not depend on “likelihood,” “could be,” “materiality,” or whether a matter is “uncontested.”

Recusal is another matter. Grounds for recusal of an appellate judge are essentially the same as those provided in the Rules of Civil Procedure. Id.; Tex.R.App. P. 16.2; Tex.R. Crv. P. 18b(2). Grounds for recusal can be waived after fully disclosed on the record. Tex.R. Civ. P. 18b(5). Here, the question would be full disclosure. If it was necessary to send the letters described above, in my view more information should have been provided, including for example: Full disclosure would include information about a spouse’s holdings and relationships. See Tex.R. Crv. P. 18b(3) (“A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse.... ”). The information presented was not sufficient to evaluate the need for a recusal motion.

• the name of counsel at Susman God-frey who is handling the injury claim;
• if a case is pending, how long has it been pending and the status of the case;
• whether claims are included that belong to the community estate;
• additional information about the financial interests in the party-companies, including whether, as addressed in rule of procedure 18b(4)(d), a relationship such as director or advisor or other active participation in the affairs of either company exists; and
• an offer to provide any information that a party might reasonably request to evaluate the merits of a possible motion to disqualify or recuse.

Texas Genco’s counsel responded to Chief Justice Gray’s request, acknowledging that CenterPoint was the parent of Texas Genco, that a direct pecuniary or personal interest in the results of a case disqualifies a judge, that being a stockholder in a corporation disqualifies a judge when the corporation is a party, that Chief Justice Gray’s wife still owns CenterPoint stock, that the Real Party in Interest has served discovery on CenterPoint that “will no doubt be burdensome for CenterPoint Energy and will cause it to incur attorney’s fees and other expenses.” The response asserts that no Texas authority has been identified where third party discovery rises to the level of a direct and substantial financial interest but acknowledges that the rules provide for recusal of a judge who knows that his spouse has a financial interest in a party to the proceeding or any other interest that could be substantially affected by the outcome of the proceeding.

Notwithstanding Chief Justice Gray’s direct request for briefing with a July 20 deadline, Valence Operating Company, the Real Party in Interest, replied on July 28 without briefing, essentially adopting Texas Genco’s position. Susman Godfrey has not responded.

Believing that the order is void because CenterPoint is a party to the proceeding below and that the ruling on the merits is wrong, I dissent.

      . We also have a direct appeal pending involving these parties, Texas Genco, LP v. Valence Operating Co., No. 10-04-00365-CV.

      . Even if it were necessary to communicate directly with the parties, no opinion should be expressed on a matter not then pending before the court. Stating in advance that no grounds for disqualification or recusal exist is bound to have a "chilling effect" on the parties.

      . This is the first time in my almost fifteen years on the court that a single justice has requested briefing on a matter that pertained only to that justice.

      . An appellate judge, unlike a trial judge, may be disqualified only on constitutional or statutory grounds, not on the basis of the rules of procedure. New Products, Inc. v. Strong Industries, Inc., 129 S.W.3d 594, 598 (Tex.App.Houston [1st Dist.] 2003, no pet.).

      . The presumption is that the stock is community property.

      . In the direct appeal, Valence advised the Clerk that it was "aware of” no grounds for disqualification or recusal.