author: GUADALUPE RIVERA, Justice.

text:
    Joseph HAMM, Jessica C. Hamm, and Jennifer H. Hamm, Appellants, v. John M. ROBINSON, Hall Royalty Company, and Cimarex Energy Company, Appellees.
    No. 08-08-00243-CV.
    Court of Appeals of Texas, El Paso.
    April 30, 2010.

      David W. Smith, Eggleston & Briscoe, Houston, TX, for Appellants.
    Scott M. Kidwell, Lynch, Chappell & Alsup, P.C., Michael J. Canon, Canon & Associates, P.C., Midland, TX, for Appel-lees.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

GUADALUPE RIVERA, Justice.

Appellants, Joseph, Jessica, and Jennifer Hamm, appeal the trial court’s summary judgment in favor of Appellees, John M. Robinson, Hall Royalty Company, and Cimarex Energy Company following the former’s filing of a bill of review, challenging a termination judgment for lack of service. We reverse.

BACKGROUND

The heart of this case concerns who retains an interest in the land located in Reeves County, Texas, which was purchased by John C. Kinsley in 1923, based on the rules of descent and distribution. Therefore, we begin with a recitation of the applicable family trees.

In the mid-1800s, John H. Kinsley married Rebecca L. Kinsley, and the couple begot three children, Jennie Blanche Kins-ley, John C. Kinsley, and Anna S. Kinsley. Although Anna died at age one, Blanche and John C. Kinsley survived. Presumably, John H. Kinsley predeceased Rebecca, and Rebecca died in 1932.

John C. Kinsley married Eva in 1915. Although John and Eva had no children together, Eva had two from a previous marriage, Wilbur Robinson and Edwina Sutherland. In 1942, John C. Kinsley died intestate in Los Angeles, California, and in 1970, Eva died intestate in Indio, California. Edwina died without children in 1996, and Wilbur died intestate in 1963, survived by his only child, John M. Robinson (Ap-pellee).

Although a marriage is not specifically found in the record, Blanche Kinsley’s last name is referred to as Hamm in a trust document executed by Rebecca in 1930. She had three children, Howard K. Hamm, Rosalind Hamm, and Warren W. Hamm. Blanche died in 1955, leaving her assets by will in equal portions to Howard, Rosalind, and Warren Hamm. Howard Hamm later begot three sons, Warren H., Robert L., and Howard K. Hamm, Jr. Rosalind Hamm begot one son, John R. Harman, Jr., and Warren W. Hamm begot one son, Thomas Hamm. Of that generation, Warren H. Hamm had three children, Matthew, Eleanor, and Russell Hamm, and Thomas Hamm had three children, Joseph, Jessica, and Jennifer Hamm (Appellants).

The Purchase of the Land, the Receivership, and the Termination

As noted previously, John C. Kinsley married Eva in 1915. Eight years later, while residing in Illinois, John purchased a tract of land in Reeves County, Texas, from W.W. Dean. The deed named John C. Kinsley as the grantee and recited a consideration of $200 as the purchase price for the land. The deed was recorded with the Reeves County Clerk.

Several decades later, on May 4, 1999, Frontier Land Corporation, unable to locate John C. Kinsley or his heirs, filed a petition for appointment of a receiver for missing and unknown mineral owners, including John and Eva Kinsley, and their heirs. After serving the potential owners by publication in the Pecos Enterprise newspaper, which circulated in Reeves, Ward, and Loving counties, the district court, on July 28, 1999, appointed Randall Reynolds to represent the unknown owners as attorney ad litem. Reynolds filed an answer on behalf of all the owners, including any and all heirs of John and Eva Kinsley.

On August 6, 1999, the court heard Frontier’s application for the appointment of a receiver for undivided mineral interests. The court found that all owners, including John and Eva Kinsley, and their heirs, appeared through their attorney, Reynolds. The court further found that after due diligence, those owners were unable to be located and were served by citation by publication, and that citation was duly returned. The court then appointed Tom Nance as receiver, and Nance, in turn, executed an oil and gas lease on the property on August 18, 1999, with Helmerich & Payne, Inc. (now Cima-rex Energy Company). Cimarex subsequently drilled a well on the tract and paid royalties in separate accounts established for John and Eva Kinsley with the Reeves County District Clerk.

On March 24, 2006, John M. Robinson and Hall Royalty Company filed a motion to terminate the receivership and requested distribution of the assets in the receiver’s possession. John Robinson claimed he was the rightful heir to the land, and Hall claimed an interest pursuant to a wellbore royalty conveyance executed by John Robinson, granting Hall 50 percent of his royalty interest until December 1, 2005, and 25 percent thereafter.

The motion was served on Reynolds as attorney ad litem, and on June 8, 2006, Reynolds participated in the hearing on the same as counsel for all unknown heirs of John and Eva Kinsley. On July 27, 2006, the court entered an order declaring John Robinson owned the land and distributed $225,184.25 to Robinson, and $210,892.15 to Hall.

The Bill of Review

Later, on October 22, 2007, Appellants filed a petition for bill of review, asserting an interest in the land and that they were entitled to notice of the termination hearing. The affidavits from Joseph, Jessica, and Jennifer Hamm, each averred that in 2004, Hall informed them that as heirs of John C. Kinsley, they were potentially entitled to funds owed to him, and that Hall would not disclose the whereabouts of those assets unless they first signed a contract, conveying to Hall 50 percent of the funds plus 50 percent of the underlying mineral interest. The affidavits further stated that when Appellants refused Hall’s offer, Hall ceased communication with them, leaving them to locate the property on their own, which they did not find until December 2006.

Appellants moved for summary judgment claiming, as interested owners in the land, they were entitled to be served with notice of the termination hearing since Hall knew their location in 2004, rather than such notice simply being served on the attorney ad litem. Appellees moved for summary judgment on no-evidence and traditional grounds, asserting first that Appellants had no interest in the land in that they failed to overcome the presumption of community property and there was no evidence the property was purchased with separate funds, and second that Appellants’ interests were duly represented by the attorney ad litem making their claims of ownership in the land barred by res judicata. After a hearing, the court, without specifying what grounds summary judgment would be granted on, granted summary judgment in favor of Appellees.

DISCUSSION

On appeal, Appellants bring three issues. The first alleges that the trial court erred by denying their motion for summary judgment when they were never served with the motion to terminate the receivership, the second contends that the trial court erred in granting Appellees’ no-evidence motion for summary judgment when Appellants presented prima facie proof that the property was John C. Kins-ley’s separate property, and the third asserts that the trial court erred by granting Appellees’ traditional motion for summary judgment on grounds that their claims were barred on principles of res judicata. Finding the trial court erred by denying Appellants’ motion for summary judgment, we determine Appellants’ first issue is dis-positive and need not address Appellants’ remaining issues.

Standard of Review

“A bill of review is an equitable proceeding brought by a party seeking to set aside a prior judgment that is no longer subject to challenge by a motion for new trial or appeal.” Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex.2004) (citing Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex.1979)). The party seeking a bill of review must ordinarily plead and prove (1) a meritorious defense to the underlying cause of action, (2) which he was prevented from making by the fraud, accident, or wrongful act of the opposing party or official mistake, (3) unmixed with any fault or negligence on their own part. Baker, 582 S.W.2d at 406-07.

However, when a party claims non-service, he need not prove a meritorious defense or that fraud, accident, wrongful act, or official mistake prevented him from presenting such a defense. Caldwell, 154 S.W.3d at 96-97; see also Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 86-87, 108 S.Ct. 896, 99 L.Ed.2d 75 (1988) (holding that the meritorious defense requirement in a bill of review proceeding violates due process where the bill of review plaintiff has no notice of the proceeding in which the default judgment was rendered); Texas Industries, Inc. v. Sanchez, 525 S.W.2d 870, 871 (Tex.1975) (holding that proof of not having been served with citation obviates the necessity of pleading and proving that party was prevented from making his meritorious defense by fraud, accident, or wrongful act of the opposite party). Rather, he simply must prove that the judgment was rendered unmixed with any fault or negligence of his own, which is conclusively established by proving he was never served with process. Caldwell, 154 S.W.3d at 97.

When a trial court grants summary judgment on a bill of review, we apply the general standard of review of a summary judgment. See Boaz v. Boaz, 221 S.W.3d 126, 131 (Tex.App.-Houston [1st Dist.] 2006, no pet.); Brown v. Vann, No. 05-06-01424-CV, 2008 WL 484125, at *4 (Tex.App.-Dallas Feb. 25, 2008, no pet.) (mem.op.) (cases reviewing summary judgment on bill of review). To prevail on a traditional summary-judgment motion, the movant bears the burden of proving that he is entitled to judgment as a matter of law and that there is no genuine issue of material fact. Tex.R. Civ. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995). When deciding whether a disputed, material fact issue precludes summary judgment, we take as true evidence favorable to the nonmovant, indulge every reasonable inference in favor of the non-movant, and resolve any doubts in the nonmovant’s favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985).

Application

Appellants’ first issue contends that the trial court erred by denying their motion for summary judgment on grounds that they were never served. Appellants’ sole basis in filing the bill of review was that they, believing they owned an interest in the land based on representations made by Hall in 2004, should have been served with notice of the termination and distribution of the assets. Although Appellants recognize that an attorney ad litem represented John C. Kinsley’s unknown heirs’ potential interests in the receivership and termination hearings, they, citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950), argue that such representative notice for them was incompatible with the requirements of due process when Hall previously contacted them and knew their location. In other words, Appellants contend they were entitled to individual notice when Appellees filed their motion to terminate so that they could obtain their own counsel and represent themselves at the termination hearing.

Initially, we address whether the non-service issue should have gone to the jury. As noted before, to be entitled to a traditional summary judgment, there must be no genuine issues of material fact. Tex.R. Civ. P. 166a(c); M.D. Anderson Hosp. & Tumor Institute v. Willrich, 28 S.W.3d 22, 23 (Tex.2000). In Caldwell, the parties, at the bill-of-review hearing, contested whether the named defendant in the original law suit was actually served. Caldwell, 154 S.W.3d at 96. The defendant claimed that he was not, attaching various affidavits to his bill of review that showed he was not at the location the process server claimed on the day he was allegedly served. Id. Finding a material question of fact as to whether the defendant was actually served, the Supreme Court determined that the contested issue of service should have been submitted to a jury, rather than decided by the trial court in a pretrial proceeding. Id. at 97-98.

However, we are not presented with a case concerning whether Appellants were ever personally served with notice of the termination proceedings. Indeed, it is undisputed that they were not. Instead, we are asked to determine whether Appellants were entitled to individual notice once Hall knew their location, despite the attorney ad litem’s appointment. This is not a question of material fact, but of law, and therefore, the issue was properly submitted on summary judgment. See Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995); Koelsch v. Indus. Gas Supply Corp., 132 S.W.3d 494, 497 (Tex.App.-Houston [1st Dist.] 2004, pet. denied) (when a question of law, rather than a question of fact, is presented, the trial court may properly render summary judgment).

We now turn to whether Appellants were entitled to notice. As an elementary and fundamental requirement, our system of justice comprehends due process to include notice and an opportunity to be heard by interested parties to the action. See Peralta, 485 U.S. at 84, 108 S.Ct. 896; Mullane, 339 U.S. at 313-14, 70 S.Ct. 652; Ex parte Peterson, 444 S.W.2d 286, 288-89 (Tex.1969). Indeed, in any proceeding that is to be accorded finality, due process requires that interested parties receive notice reasonably calculated, under the circumstances, to apprise them of the pen-dency of the action and afford them the opportunity to present their objections. Peralta, 485 U.S. at 84, 108 S.Ct. 896; Mullane, 339 U.S. at 314-15, 70 S.Ct. 652; Dispensa v. Univ. State Bank, 987 S.W.2d 923, 926 (Tex.App.-Houston [14th Dist.] 1999, no pet.). Failure to give adequate notice violates “the most rudimentary demands of due process of law.” Armstrong v. Manzo, 380 U.S. 545, 550, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965); Jimenez v. Transwestern Prop. Co., 999 S.W.2d 125, 128 (Tex.App.-Houston [14th Dist.] 1999, no pet.).

Under the circumstances presented in this case, we find that Appellants were entitled to notice. They, as John C. Kins-ley’s heirs, may have a potential interest in the property, and therefore, any proceedings or judgments concerning that property necessarily affect that potential interest. Accordingly, Appellants were entitled to an opportunity to present their objections. See Peralta, 485 U.S. at 84, 108 S.Ct. 896 (interested parties are entitled to notice for purposes of presenting their objections when those interests are affected by a proceeding that is to be accorded finality). As their whereabouts were known by the opposing party seeking to terminate the receivership, we conclude that Appellants were entitled to notice of the termination. See Mullane, 339 U.S. at 318, 70 S.Ct. 652 (“[w]here the names and post office addresses of those affected by a proceeding are at hand, the reasons disappear for resort to means less likely than the mails to apprise them of its pendency.”).

Nevertheless, Appellees argue that Appellants’ interests were represented by an attorney ad litem at the termination hearing and thus service on him was sufficient. However, according to the court order appointing the receiver and attorney ad litem, the latter was only appointed to represent any unknown heirs of John C. Kinsley. Hall then chose to locate various heirs and found them. Because Hall, an opposing party who filed the motion to terminate the receivership, knew Appellants were heirs of John C. Kinsley and their whereabouts, he cannot claim that service on the attorney ad litem, who was solely appointed to represent unknown heirs, was reasonably calculated notice. See Peralta, 485 U.S. at 84, 108 S.Ct. 896 (due process requires an interested party to be served with reasonably calculated notice).

Appellees also argue that since they determined Appellants lacked an interest in the land, Appellants were not entitled to notice. Whether Appellants owned an interest in the land was an issue to be determined by the fact finder after notice was had on all potential and known interested parties, not for Hall to preliminarily determine on its own. As Hall knew Appellants’ whereabouts at the time it filed the motion to terminate the receivership, we believe Hall was required to give notice to Appellants. See In the Matter of Marriage of Peace, 631 S.W.2d 790, 794 (Tex.App.-Amarillo 1982, no writ) (holding individual entitled to notice when his name and address are known, and his legal interests are directly affected by the proceedings in question).

Accordingly, we conclude that Appellants, as a matter of law, were entitled to notice. As Appellants were never served, we need not determine whether they had a meritorious defense or that fraud, accident, wrongful act, or official mistake prevented them from presenting such a defense. Peralta, 485 U.S. at 86-87, 108 S.Ct. 896; Caldwell, 154 S.W.3d at 96-97; Sanchez, 525 S.W.2d at 871. Further, having established that they were never served with process, we conclude that the judgment was rendered unmixed with any fault or negligence of Appellants. Caldwell, 154 S.W.3d at 97. Therefore, Appellants were entitled to summary judgment on their petition for bill of review as a matter of law, and the trial court erred by failing to grant the same. Issue One is sustained.

CONCLUSION

Having sustained Appellants’ first issue, we reverse the judgment of the trial court and remand for further proceedings.

      . Under Texas law, John Robinson would retain some ownership in the property regardless as to whether John C. Kinsley adopted Wilbur Robinson as his son or whether the property is characterized as community or separate property. According to the rules of intestate succession for community property, if a person dies without children, survived only by a spouse, the real property passes to the spouse. Tex. Prob.Code Ann. § 45(a) (Vernon 2003). Upon that spouse's death, the property passes to her children. Id. at § 38(a)(1) (Vernon 2003). If any of those children die without issue or surviving spouses, the property passes to the other child and then to that child's descendants. Id. at § 38(a)(3). For non-community property, when a person dies leaving a spouse and no children, the spouse is entitled to one-half of the real property and the other half passes to the deceased's parents. Id. at § 38(b)(2). If the deceased’s parents are no longer living, that half of the property passes to the deceased’s siblings, and then to their children. Id. Because adopted children are considered lineal heirs in Texas, the rules of intestate succession do not change. See Tex. Prob. Code Ann. § 40 (Vernon 2003).

      . Appellants’ potential ownership in the land is based on their claim that the land was John C. Kinsley’s separate property. Tex. Prob. Code Ann. § 38(b)(2).

      . We note that at the termination hearing, Hall acknowledged that it previously contacted Appellants but later determined they did not own an interest in the land.


source: Caselaw Access Project

license: Public Domain

text:
    The STATE of Texas, Appellant, v. Sergio PORTILLO, Appellee.
    No. 08-09-00187-CR.
    Court of Appeals of Texas, El Paso.
    April 30, 2010.

      Craig Watkins, District Attorney, Martin L. Peterson, Asst. Dist. Atty., Dallas, TX, for Appellant.
    David J. Pire, Dallas, TX, for Appellee.
    Before CHEW, C.J., RIVERA, J., and LARSEN, J.
   OPINION

GUADALUPE RIVERA, Justice.

The State appeals from an order granting Appellee Sergio Portillo’s motion to suppress evidence that was discovered during a search made incident to Portillo’s arrest for failing to wear a bicycle helmet as required by Dallas’s bicycle helmet ordinance. Portillo challenged the lawfulness of his arrest before the trial court by asserting that the Dallas ordinance was invalid and improperly enforced. We reverse.

BACKGROUND

Justin McOsker, a Dallas Police Department officer, observed Sergio Portillo riding a bicycle without a protective helmet in violation of Dallas City Code Section 9.8(a) which provides, among other things, that a person commits an offense if he operates or rides a bicycle without wearing a helmet. Dallas, Tex., Dallas City Code ch. 9, art. II, § 9-8 (1996); Dallas, Tex., Ordinance No. 22764 (1996). Upon observing the violation, Officer McOsker made a traffic stop and arrested Portillo. Officer McOsker then conducted a pat down search incident to the arrest, and discovered that Portillo was in possession of cocaine.

Portillo filed a motion to suppress evidence which alleged, in part, that the Dallas bicycle ordinance for which he was arrested is unconstitutional because it violates the Equal Protection Clause of the United States and Texas Constitutions and does not serve any governmental interest. At the suppression hearing, Portillo argued that the Dallas “ordinance is not equally enforced among all people,” contended that there was no compelling governmental interest in requiring the public to wear helmets while operating a bicycle, and asserted that because state law permits the public in certain circumstances to ride motorcycles without the benefit of a helmet, the City of Dallas is preempted from requiring that bicyclists wear protective helmets.

The trial court granted Portillo’s motion to suppress and in its Findings of Fact and Conclusions of Law stated:

Sergio Portillo’s counsel filed a motion to suppress, contending that the white, rock-like substance [cocaine] should be suppressed based on the unconstitutionality of the ordinance under which Sergio Portillo had been detained and arrested. Based on the legal merits of these arguments regarding the ordinance, the trial court concluded that suppression of the evidence was required under the law.

Appellant, the State of Texas, thereafter filed its timely notice of appeal. The City of Dallas submitted an amicus curiae brief. Tex. R. App. P. 11.

DISCUSSION

In a single issue, the State contends that the trial court erred by granting Portillo’s motion to suppress evidence because the trial court improperly determined that Portillo’s arrest was based upon an unconstitutional ordinance. We agree.

Standard of Review

We review a trial court’s ruling on a motion to suppress using the bifurcated standard of review articulated in Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App.1997); see Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000); Krug v. State, 86 S.W.3d 764, 765 (Tex.App.-El Paso 2002, pet. ref'd); Urqukart v. State, 128 S.W.3d 701, 704-05 (Tex.App.-El Paso 2003, pet. ref'd). In a suppression hearing, the trial court is the sole finder of fact and may believe or disbelieve any of the evidence presented. Alvarado v. State, 853 S.W.2d 17, 23 (Tex.Crim.App.1993); Pace v. State, 986 S.W.2d 740, 744 (Tex.App.-El Paso 1999, pet. ref'd).

When a trial court files findings of fact and conclusions of law, the court’s findings of fact will not be disturbed on appeal absent an abuse of discretion. State v. Wood, 828 S.W.2d 471, 474 (Tex.App.-El Paso 1992, no writ); see also Cantu v. State, 817 S.W.2d 74, 77 (Tex.Crim.App.1991) (trial court’s findings should not be disturbed absent clear abuse of discretion). We afford almost total deference to the trial court’s express or implied determination of historical facts and review de novo the court’s application of Fourth Amendment search and seizure law to those facts. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App.2000); Carmouche, 10 S.W.3d at 327; Krug, 86 S.W.3d at 765; Urquhart, 128 S.W.3d at 704-05. Such deference is also afforded to determinations of mixed questions of law and fact when their resolution depended on witness credibility and demeanor. Ross, 32 S.W.3d at 856. However, questions involving legal principles and the application of law to established facts are properly reviewed de novo. Kothe v. State, 152 S.W.3d 54, 63 (Tex.Crim.App.2004).

We restrict our analysis to Portillo’s assertions that were considered by the trial court during the suppression hearing and begin by examining the powers bestowed upon home-rule cities. Tex. R. App. P. 33.1; see Martinez v. State, 91 S.W.3d 331, 336 (Tex.Crim.App.2002); State v. Mercado, 972 S.W.2d 75, 78 (Tex.Crim.App.1998); Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990).

The City of Dallas (Dallas) is chartered as a home-rule municipal corporation. Tex. Const. art. XI, § 5; Dallas, Tex., Ch. II, § 2 (2005); Tex. Loc. Gov’t Code Ann. § 5.004 (Vernon 2008) (providing that a municipality is a home-rule municipality if it operates under a municipal charter that has been adopted or amended as authorized by Article XI, Section 5 of the Texas Constitution); see Nelson v. City of Dallas, 278 S.W.3d 90, 94 (Tex.App.-Dallas 2009, pet. denied). A home-rule city derives its powers from the Texas Constitution. Tex. Const. art. XI, § 5; Dallas Merchant’s and Concessionaire’s Ass’n v. City of Dallas, 852 S.W.2d 489, 490-91 (Tex.1993); In re Sanchez, 81 S.W.3d 794, 796 (Tex.2002). As a home-rule city, Dallas possesses the full power of self-government and looks to the legislature not for grants of power, but only for limitations on its power. Tex. Loc. Gov’t Code Ann. § 51.071-51.072 (providing that a home-rule municipality has full power of local self government); In re Sanchez, 81 S.W.3d at 796; Dallas Merchant’s and Concessionaire’s Ass’n, 852 S.W.2d at 490-91. The powers of a home-rule city encompass all of the powers of the state not inconsistent with the Constitution, the general laws, or the city’s charter. Tex. Const. art. XI, § 5; City of Galveston v. State, 217 S.W.3d 466, 469 (Tex.2007); Proctor v. Andrews, 972 S.W.2d 729, 733 (Tex.1998). A city may, as a valid exercise of its police power, enact reasonable regulations for the purpose of promoting the health, safety, and general welfare of its people. City of Brookside Village v. Comeau, 633 S.W.2d 790, 792 (Tex.1982), cert. denied, 459 U.S. 1087, 103 S.Ct. 570, 74 L.Ed.2d 932 (1982); City of College Station v. Turtle Rock Corporation, 680 S.W.2d 802, 805 (Tex.1984); Ex parte Woodall, 154 S.W.3d 698, 702 (Tex.App.-El Paso 2004, pet. ref'd).

An ordinance enacted by a home-rule city that attempts to regulate a subject matter preempted by state statute is unenforceable to the extent it conflicts with that statute. Dallas Merchant’s and Concessionaire’s Ass’n, 852 S.W.2d at 491; Comeau, 633 S.W.2d at 796; City of Mont Belvieu v. Enterprise Products, 222 S.W.3d 515, 520 (Tex.App.-Houston [14th Dist.] 2007, no pet.). That the legislature has enacted a law addressing a subject matter does not mean the legislature has completely preempted the subject matter so as to preclude municipal regulation. Dallas Merchant’s and Concessionaire’s Ass’n, 852 S.W.2d at 491; City of Richardson v. Responsible Dog Owners of Texas, 794 S.W.2d 17, 19 (Tex.1990); City of Mont Belvieu, 222 S.W.3d at 520. However, in order for a state statute to preempt a subject matter usually encompassed by municipal authority, the state statute must do so with unmistakable clarity. In re Sanchez, 81 S.W.3d at 796; Dallas Merchant’s and Concessionaire’s Ass’n, 852 S.W.2d at 491. When a court can reach a reasonable construction that leaves both in effect, a state law and a city ordinance will not be held repugnant to each other. In re Sanchez, 81 S.W.3d at 796. If there is no conflict, the ordinance is not void. Responsible Dog Owners, 794 S.W.2d at 19.

City ordinances are presumed valid. In re Sanchez, 81 S.W.3d at 796; Comeau, 633 S.W.2d at 792; John v. State, 577 S.W.2d 483, 485 (Tex.Crim.App.1979); Ex parte Woodall, 154 S.W.3d at 701. The burden of showing that a city ordinance is invalid rests on the party attacking it. John, 577 S.W.2d at 485; Ex parte Woodall, 154 S.W.3d at 701. A party attacking an ordinance bears an “extraordinary burden” to show “that no conclusive or even controversial or issuable fact or condition existed” which would authorize the municipality’s passage of the ordinance. Comeau, 633 S.W.2d at 792-93; Ex parte Woodall, 154 S.W.3d at 701. We consider all the circumstances and determine, as a substantive matter, if reasonable minds could differ as to whether an ordinance has a substantial relationship to the protection of the general health, safety, or welfare of the public. Comeau, 633 S.W.2d at 793; Quick v. City of Austin, 7 S.W.3d 109, 116-17 (Tex.1998). If reasonable minds may differ as to whether a particular ordinance has a substantial relationship to the public health, safety, morals, or general welfare, no clear abuse of discretion is shown and the ordinance must stand as a valid exercise of the City’s police power. Ex parte Woodall, 154 S.W.3d at 701-02; see also Quick, 7 S.W.3d at 116-17. If the evidence reveals an issuable fact in this respect, the ordinance must stand. Id. at 702.

Application of Law

During the suppression hearing, Portillo argued that the Dallas bicycle helmet ordinance has no compelling governmental interest, is preempted by state law, and violates the equal protection clause, presumably of both the U.S. and Texas Constitutions. We examine each assertion in turn.

Portillo specifically complained to the trial court that there was no compelling governmental interest in requiring the public to wear helmets while operating a bicycle because state law permits the public in limited circumstances to ride motorcycles without the benefit of a helmet. The preamble to the Dallas bicycle helmet ordinance sets forth the reasons for the enactment of its provisions and they are: (1) bicycle-related head injuries are a serious public health problem; (2) although statistics show that helmets significantly reduce the risk of head injuries, many persons do not wear helmets when riding a bicycle or a device attached to a bicycle; and (3) the city council believes that mandating that all persons wear helmets when riding a bicycle or any device attached to a bicycle on public property will increase the number of persons who wear helmets, thereby reducing the number of head injuries in the city from bicycle-related incidents. Dallas, Tex., Ordinance No. 22764 (1996).

Considering all the circumstances before us, we find as a substantive matter, that reasonable minds may differ as to whether the bicycle helmet ordinance at issue has a substantial relationship to the protection, public health, safety, or general welfare of the public. Quick, 7 S.W.3d at 117. Consequently, no clear abuse of discretion has been shown and the enactment of the bicycle helmet ordinance was a valid exercise of the City’s police power. Ex parte Woodall, 154 S.W.3d at 701.

Portillo next argued to the trial court that the Dallas bicycle helmet ordinance is invalid because it was constitutionally preempted by a state statute that regulates the wearing of helmets by persons who operate motorcycles. While the bicycle helmet ordinance is presumed valid, we have considered whether the ordinance is preempted by the Constitution or general laws of the State of Texas and we find that it is not. The general laws of this state do, in part, regulate the operation of bicycles and motorcycles in the state, but there are none cited by Portillo that limit, with unmistakable clarity, a home-rule city’s exercise of its powers to enact a bicycle helmet ordinance. Tex. Const. art. XI, § 5; Tex. Loc. Gov’t Code Ann. § 51.071-51.072; see Tex. Health & Safety Code Ann. Ch. 758 (Vernon 2003) (providing for bicycle safety education program and funding, and allowing, but not requiring, the purchase of bicycle helmets for children from low-income families); Tex. Transp. Code Ann. §§ 541.201(2) and (9) (Vernon Supp.2009) (defining bicycle and motorcycle); Tex. Transp. Code Ann. Ch. 547, § 547.002 (Vernon Supp.2009) (establishing vehicle equipment requirements and providing that unless specifically made applicable, Chapter 547 and the rules of the Department of Transportation adopted under the chapter do not apply to a bicycle, a bicyclist, or bicycle equipment); Tex. Transp. Code Ann. Ch. 551 (Rules of the Road), §§ 551.101-551.105 (Vernon 1999) (establishing, among other things, the “rules of the road” for the operation of bicycles, including the requirement of braking, lighting, and reflective equipment); In re Sanchez, 81 S.W.3d at 796; Dallas Merchant’s and Concessionaire’s Ass’n, 852 S.W.2d at 490-91; City of Galveston, 217 S.W.3d at 469; Proctor, 972 S.W.2d at 733. Nor do we find, as Portillo suggested to the trial court, that the Dallas bicycle helmet ordinance conflicts with any of the general state laws that any party has raised in support of its position in this appeal. Because the Dallas bicycle helmet ordinance is not preempted by the Texas Constitution or the general laws of this state, and because it does not conflict with the general laws which govern bicycles and bicyclists, the ordinance is not void. Responsible Dog Owners, 794 S.W.2d at 19. Because the ordinance is not void, it is enforceable. See Dallas Merchant’s and Concessionaire’s Ass’n, 852 S.W.2d at 491; Comean, 633 S.W.2d at 796; City of Mont Belvieu, 222 S.W.3d at 520.

During the suppression hearing, Portillo claimed that the Dallas bicycle helmet ordinance “is not equally enforced among all people” and, therefore, violates the equal protection clause. “The conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation.” Tex. Const. art. I, § 3 (Equal Rights); Beeler v. Rounsavall, 328 F.3d 813, 817 (5th Cir.2003) and Allred’s Produce v. U.S. Dep’t of Agric., 178 F.3d 743, 748 (5th Cir.1999), quoting Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446 (1962). To successfully establish a claim of selective enforcement or prosecution -violative of the equal protection clause, Portillo must have additionally established that his treatment was different and invidious, that is, he must have shown that the differential treatment was motivated by improper considerations such as race, religion, the interference with his exercise of a constitutional right, or another arbitrary classification. Beeler, 328 F.3d at 817; see Oyler, 368 U.S. at 456, 82 S.Ct. at 506 (selective enforcement viola-tive of equal protection is that “deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification”); Gunnels v. City of Brownfield, 153 S.W.3d 452, 464 (Tex.App.-Amarillo 2003, pet. denied); Roise v. State, 7 S.W.3d 225, 243 (Tex.App.-Austin 1999, pet. ref'd). Portillo does not argue that his arrest by Officer McOsker was motivated by improper considerations such as race, religion, or the interference of his exercise of a constitutional right. Because there are no facts in the record to show that enforcement of the ordinance as to Portillo was both different and invidious, we find that the trial court erred to the extent that its suppression of the evidence was based upon Portillo’s equal protection-selective enforcement complaint at the suppression hearing.

Having determined that the enactment of the Dallas bicycle helmet ordinance is valid and that its enforcement as to Portil-lo was not constitutionally compromised, we now consider whether the trial court properly applied the law in suppressing the evidence at Portillo’s suppression hearing.

A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view. Tex.Code Crim. Proc. Ann. art. 14.01(b) (Vernon 2005). A search incident to an arrest permits officers to search a defendant, or areas within the defendant’s immediate control, in order to remove any weapons that the arrestee may seek to use in order to resist arrest or effect escape. Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969); see McGee v. State, 105 S.W.3d 609, 615 (Tex.Crim.App.2003). An arresting officer may also search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. Chimel, 395 U.S. at 763, 89 S.Ct. at 2040; see McGee, 105 S.W.3d at 615.

Because Officer McOsker observed Portillo riding a bicycle without a helmet as required by the Dallas bicycle helmet ordinance, he was permitted to arrest Portillo for the ordinance violation and search Portillo incident to the arrest. Chimel, 395 U.S. at 763, 89 S.Ct. at 2040; see McGee, 105 S.W.3d at 615. Consequently, we find that the trial court clearly abused its discretion when it suppressed the evidence, here cocaine, which was the fruit of a lawful search conducted incident to a warrantless arrest for violation of a valid ordinance. See Wood, 828 S.W.2d at 474; see also Cantu v. State, 817 S.W.2d 74, 77 (Tex.Crim.App.1991). Accordingly, we sustain the State’s sole issue.

CONCLUSION

The trial court’s order granting the motion to suppress is reversed and the cause is remanded for further proceedings.

LARSEN, J. (sitting by assignment).


author: Justice CARTER.

text:
    In the Interest of G.J.P. and R.P., Children.
    No. 06-09-00066-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted March 24, 2010.
    Decided May 5, 2010.

      Troy A. Hornsby, Miller, James, Miller & Hornsby, LLP, Texarkana, for appellant.
    Patrice Savage, Texas Dept, of Family & Protective Services, Longview, for ap-pellee.
    Before MORRISS, C.J., CARTER and MOSELEY, JJ.
   OPINION

Opinion by

Justice CARTER.

Jason Payne, at the time of this child custody proceeding, stood accused of murdering his wife and a stepson. The trial court appointed as joint managing conservators the maternal grandparents of the two surviving children — G.J.P. and R.P., his biological children. The trial court denied Payne any conservatorship standing or visitation rights with G.J.P. and R.P. Trial counsel was dismissed from his appointment by the court as a part of the order on June 5, 2009. Payne filed a pro se notice of appeal on July 2, 2009. On July 22, Payne filed a request for counsel for appeal, and the court appointed appellate counsel on that date to represent him. By that time, it was too late to file the “statement of points on appeal” required by the Texas Family Code. We affirm the judgment of the trial court.

I. PRELIMINARY MATTERS

This Court is once again confronted with the proper application of Section 263.405 of the Texas Family Code. Again, Section 263.405 requires a party who intends to appeal an order in certain suits affecting the parent-child relationship to file a statement of points on which the party intends to appeal. Tex. Fam.Code Ann. § 263.405(b)(2) (Vernon 2008). The legislative enactment in Section 263.405® purports to limit the power of appellate courts to review the proceeding below by stating that an appellate court may not consider any issue that was not specifically presented to the trial court in a timely filed statement of the points on which the party intends to appeal or in a statement combined with a motion for new trial — within an extremely short fífteen-day time period. Tex. Fam.Code Ann. § 263.405® (Vernon 2008).

A. Does Section 263.405 Apply to This Case? Is This an Accelerated Appeal?

Initially, the Department filed this case requesting that Payne’s parental rights should be terminated; later, the termination allegation was dismissed and the case was tried as a conservatorship/ac-cess trial. Though initially complaining of the effects of Section 263.405 on his right to appeal, Payne argues in his reply brief that this judgment determining conserva-torship and visitation is not subject to the requirements of Section 263.405. That means, he contends, that this case is not accelerated and he was also not required to file a statement of points.

It appears that only one other case has directly addressed this question. In re A.J.K., 116 S.W.3d 165 (Tex.App.-Houston [14th Dist.] 2003, no pet.). When addressing this issue, the Houston Fourteenth court concluded that although the judgment ultimately determined conservator-ship rather than termination, it still fell within the purview of Section 263.405(a), making it an accelerated appeal. See id. at 168, 173. Section 263.405 still applied even though the termination allegations were ultimately abandoned. Id. at 168-69. Section 263.401, concerning the deadlines and dismissal dates, also applied since, at least initially, the Department asked the trial court to consider both termination and conservatorship matters. Id. at 169.

The court based its decision on several factors, one being a definition of “final order” that has since been repealed, but also separately explaining that even in the absence of termination allegations, Chapter 263 should apply to these types of cases in which the Department is involved. Id. at 170-71. As pointed out there, the application of Chapter 263 is further supported by the goal of quick resolution of highly emotional suits in which the stakes are high. See id. The A.J.K. court was careful to draw the distinction between these types of cases involving the Department and those cases involving custody arrangements between two parents, calling the two cases “fundamentally different.” See id. at 171. The latter cases, those involving only parents, properly fall under the general appeal provision. See Tex. Fam.Code Ann. § 109.002 (Vernon 2008). It is also worth noting that the headings of the subchapter are not for termination suits, but for suits affecting the parent-child relationship — and that the preceding subchapters involving suits by the State reference a wide range of orders, rather than termination only. The language of the subtitle itself is not limited to termination, and the context in which the statute lies does not require that result.

We find the discussion by the Houston court of statutory construction and examination of the interests at issue persuasive, and conclude that this appeal is accelerated subject to Chapter 263’s provisions— and that the statement of points thus applies to this appeal as a part of those provisions.

B. The Notice of Appeal Was Timely Whether Accelerated or Not; This Court Has Jurisdiction Over This Appeal

1. Accelerated

We also recognize that the notice of appeal is timely regardless of whether the appeal is treated as accelerated or using the timetables for a regular appeal. As an accelerated appeal, the notice of appeal was timely by application of the implied motion for extension of time. In the accelerated appeal of a civil case, unless a party moves to extend the time to file an appeal, the notice of appeal must be filed within twenty days after the judgment or order appealed from is signed. Tex.R.App. P. 26.1(b); In re K.A.F., 160 S.W.3d 923, 926-27 (Tex.2005). The appellate court may extend the time to file the notice of appeal, if, within fifteen days after the deadline for filing the notice of appeal, the party (1) files the notice of appeal, and (2) files in the appellate court a motion complying with Rule 10.5(b). Tex.R.App. P. 26.3. A motion to extend time to file a notice of appeal is necessarily implied when an appellant, acting in good faith, files a perfecting instrument beyond the time allowed for perfecting an appeal, but within the fifteen-day period in which the appellant would be entitled to move to extend the filing deadline. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex.1997); Doe v. Brazoria County Child Protective Servs., 226 S.W.3d 563, 570-71 (Tex.App.Houston [1st Dist.] 2007, no pet.); In re B.G., 104 S.W.3d 565, 567 (Tex.App.-Waco 2002, no pet.).

Although the motion for extension of time is implied, the appellant must also provide a reasonable explanation for the late filing to avoid dismissal of the appeal. See Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex.1998); Doe, 226 S.W.3d at 571. Courts have held that an attorney’s misunderstanding of the relevant deadlines to perfect an appeal under Section 263.405 constitutes a reasonable explanation for the late filing of a notice of appeal. See Doe, 226 S.W.3d at 571. Payne’s later-filed motion for extension of time to file the notice of appeal, though not necessary, provides the reasonable explanation for the delay.

2. Not Accelerated

If this appeal were not subject to accelerated timetables, it would simply be timely filed: the notice of appeal was filed within thirty days of the date the judgment was signed. See Tex.R.App. P. 26.1.

In other words, the notice of appeal was timely filed, and we have jurisdiction over the appeal under either scenario.

II. INEFFECTIVE ASSISTANCE OF COUNSEL ISSUE

Despite recognizing that this suit was brought under the aegis of the cited portion of the Texas Family Code, as the types of orders that can be issued under that subtitle extend beyond termination orders only, it does not necessarily follow that the remedy provided for ineffectiveness of counsel applies in this case.

The statutory basis for appointment of counsel is found in Section 107.013(a) (which is itself a legislative acknowledgment of the constitutional requirements set out by the Texas Supreme Court). In relevant part, the statute provides that when a suit is filed by a governmental entity in which termination is requested, the court shall appoint an attorney to represent an indigent parent. It also provides that if a governmental entity requests temporary managing conservator-ship of a child, and a parent responds in opposition, the court shall appoint an attorney to represent an indigent parent’s interests. Tex. Fam.Code Ann. § 107.013(a)(1), (c) (Vernon Supp. 2009). In this case, the State initially sought termination or, alternatively, conservator-ship, but on April 8, 2009, filed a nonsuit of its termination petition, and the case was tried in early May based solely on the conservatorship issues.

Does the recognized right to effective assistance of counsel for cases involving the termination or severance of parental rights also extend to cases in which only conservatorship is decided?

This question does not appear to have been addressed before in Texas, and the United States Supreme Court opinions on which the Texas opinions rely for guidance do not speak to that situation. A review of those opinions provides one absolute: the right to counsel, and a concomitant right to effective counsel measured under constitutional guidelines, exists when the result of the proceeding is the permanent severance of a parent’s rights to a child. Although the Texas statute providing for mandatory appointment of counsel specifies that it applies only in the case of a suit filed by a governmental entity seeking termination or temporary managing conservatorship, the United States Supreme Court found no reason for differentiation between suits filed by a governmental entity or an individual where termination was involved.

Although the termination proceeding in this case was initiated by private parties as a prelude to an adoption petition, rather than by a state agency, the challenged state action remains essentially the same: M.L.B. resists the imposition of an official decree extinguishing, as no power other than the State can, her parent-child relationships.

M.L.B. v. S.L.J., 519 U.S. 102, 117 n. 8, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996).

In its earlier opinion, the United States Supreme Court had stated that when

the State initiates a parental rights termination proceeding, it seeks not merely to infringe that fundamental liberty interest, but to end it. “If the State prevails, it will have worked a unique kind of deprivation.... A parent’s interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore, a commanding one.”

Santosky v. Kramer, 455 U.S. 745, 759, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Lassiter, 452 U.S. at 27, 101 S.Ct. 2153.

In reviewing a termination, the Texas Supreme Court held in In re M.S., 115 S.W.3d 534, 543 (Tex.2003), that “the statutory right to counsel in parental-rights termination cases embodies the right to effective counsel.” The court very carefully used language throughout its opinion linking that right to termination. There is no indication that the right might also be extended where the case was not one terminating or severing parental rights for all time — but instead was a case determining conservatorship or custody.

In In re J.O.A., 283 S.W.3d 336, 339 (Tex.2009), the court again examined this concept, holding that even when a statement of points is not filed as required under Section 263.405(b)(2) of the Texas Family Code, the issue of effective assistance of counsel in a parental rights termination case may be raised on appeal (despite the failure to include it in a statement of points) and that the section is unconstitutional as applied when it precludes a parent from raising a meritorious complaint about the insufficiency of the evidence supporting the termination order. Again, the opinion is expressly controlling only over cases where a parent’s rights are terminated.

There is a reason to treat termination cases differently in a constitutional analysis — termination results in the permanent severance by the State of a parent’s relationship with a child — a right that has been held to be constitutional in nature. A determination of conservatorship or custody does not reach this level. It may place restrictions on conservatorship or custody, even extreme ones, but those are restrictions, not the permanent severance of a relationship. Conservatorship or custody determinations can be amended or modified when justified by the circumstances. Thus, the main rationale for importing the right to effective assistance of counsel into a civil proceeding does not exist in a case where the severance of that recognized right is not implicated.

Ineffective assistance of counsel is a constitutional claim that is only available in very limited situations. Generally, it can be raised only in criminal cases (where loss of freedom is at stake) and parental rights termination cases (where the relationship between parent and child is permanently severed). It provides a complete remedy: setting aside the decision of the trial court. As this case has evolved, it is a conservatorship case to which this extra-constitutional protection does not apply. This does not mean that attorneys are not required to provide competent services or that there is no remedy for their failure. Just as in any professional undertaking, attorneys have the obligation to perform in a competent, nonnegligent manner and the failure to do so may subject attorneys to claims of professional negligence. But we find no authority, in a child custody case, to authorize a remedy of overturning a trial court decision based on ineffectiveness of counsel.

Our statutes authorize the appointment of counsel in many situations. For example, Rule 308a of the Texas Rules of Civil Procedure allows the trial court to appoint an attorney to enforce its orders of child support and possession and access to a child. If the constitutional right to set aside a decision of a court for ineffectiveness of counsel exists for conservatorship and custody disputes, would that same right not also apply to actions under Rule 308a? We believe the superior courts have reserved the constitutional remedy afforded by proof of deficient professional performance to claims involving the potential loss of liberty or permanent deprivation of the parental rights. The claim of ineffective assistance of counsel cannot be considered by this Court, and the arguments based on that claim are overruled.

III. TRIAL COURT’S FAILURE TO DISMISS UPON DISMISSAL DATE

Payne next argues that the court erred by failing to dismiss this proceeding as required by statute when the statutory timetable expired — because the judge did not make the necessary findings to justify extending the time periods. Payne again raises the issue as showing ineffective assistance of counsel for failing to seek the dismissal, but also couches his argument as being reachable by this Court because the statement of points requirement is a violation of separation of powers between the judiciary and the legislative branches.

The Fort Worth court declared Section 263.405® unconstitutional on the ground that it violates the Separation of Powers Clause of the Texas Constitution. In re D.W., 249 S.W.3d 625, 640 (Tex.App.-Fort Worth), pet. denied, 260 S.W.3d 462 (Tex.2008). It pointed out that the Separation of Powers Clause is violated (1) when one branch of government assumes power more properly attached to another branch or (2) when one branch unduly interferes with another branch so that the other cannot effectively exercise its constitutionally assigned powers. Id. at 635.

In D.W., the court considered the constitutionality of Section 263.405® when it prohibited the court from addressing the trial court’s denial of a mother’s motion to extend the dismissal deadline under Section 263.401. Id. at 632. After first concluding that the mother properly preserved her objection under Section 263.401 at trial but that she failed to include that issue in her statement of points, the Fort Worth court found that the Legislature, by enacting Section 263.405®, violated the doctrine of separation of powers by encroaching on the judiciary’s substantive power to review issues preserved at trial but not included in a statement of points. Id. at 632, 640; see M.C. v. Tex. Dep’t of Family & Protective Servs., 300 S.W.3d 305 (Tex.App.-El Paso 2009, pet. denied). Importantly, the D.W. court pointed out that Section 263.405® does not bar a challenge that “could not have been addressed by the trial court in the first instance.” 249 S.W.3d at 632.

The Texas Supreme Court has repeatedly stated that we should not delve into constitutional issues if other grounds dispose of an appeal. See VanDevender v. Woods, 222 S.W.3d 430, 432 (Tex.2007) (noting courts should rest decisions on nonconstitutional grounds, if available, and not “wade into ancillary constitutional questions”); In re B.L.D., 113 S.W.3d 840, 349 (Tex.2003) (“As a rule, we only decide constitutional questions when we cannot resolve issues on nonconstitutional grounds.”).

Applying that general restriction, several appellate courts have held that due process or separation of powers issues should not be addressed where there is no showing that the operation of the challenged statute harmed the appellant. See, e.g., M.C., 300 S.W.3d 305; Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608, 620, 625 (Tex.App.-Houston [1st Dist.] 2009, pet. denied); In re M.M.F., No. 2-08-014-CV, 2008 WL 5265033, at *7 (Tex.App.-Fort Worth Dec. 18, 2008, no pet.) (mem. op.); Tex. Dep’t of Family & Protective Servs. v. Dickensheets, 274 S.W.3d 150, 155 (Tex.App.-Houston [1st Dist.] 2008, no pet.).

Payne complains that the trial court made only one of the two required findings under Section 263.401(b)- — and that counsel was ineffective in not properly preserving or raising the issue. The statute provides that “the [trial] court may not retain the suit on the court’s docket” after the one-year dismissal date unless the court makes specific findings as set out in the statute. Tex. Fam.Code Ann. § 263.401(b) (Vernon 2008); In re Dep’t of Family & Protective Servs., 273 S.W.3d 637, 643 (Tex.2009).

b) ... the court may not retain the suit on the court’s docket after the time described by Subsection (a) unless the court finds that extraordinary circumstances necessitate the child remaining in the temporary managing conservator-ship of the department and that continuing the appointment of the department as temporary managing conservator is in the best interest of the child. If the court makes those findings, the court may retain the suit on the court’s docket for a period not to exceed 180 days after the time described by Subsection (a).

Tex. Fam.Code Ann. § 263.401 (Vernon 2008).

The record, however, indicates otherwise. In an omnibus order that includes a section on retaining the suit on the court’s docket, the court found that:

3.1 Pursuant to § 263.401(b), Texas Family Code, the Court finds that this Court has continuing jurisdiction of this suit, and that extraordinary circumstances necessitate [G.J.P.] and [R.P.] remaining in the temporary managing conservator-ship of the Department and that continuing the appointment of the Department as temporary managing conservator is in the best interest of the children. An order to retain the case on the Court’s docket should be granted.

Thus, the judge made the two findings required by the statute, and there is no showing that the operation of the challenged statute (requiring a statement of points) harmed Payne. We overrule the contention of error.

We affirm the judgment.

      . We also point out that Section 263.405(c) does not negate this general rule regarding an implied motion for extension of time to file the notice of appeal. It provides as follows:
      A motion for a new trial, a request for findings of fact and conclusions of law, or any other post-trial motion in the trial court does not extend the deadline for filing a notice of appeal under Rule 26.1(b), Texas Rules of Appellate Procedure, or the deadline for filing an affidavit of indigence under Rule 20, Texas Rules of Appellate Procedure.
      Tex. Fam.Code Ann. § 263.405(c) (Vernon 2008) (footnote omitted). By its own terms, Section 263.405(c) is limited to motions filed in the trial court.

        . Lassiter declared it "plain beyond the need for multiple citation" that a natural parent’s "desire for and right to 'the companionship, care, custody and management of his or her children’ is an important interest. Lassiter v. Dep't of Social Servs. of Durham County, 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). In so holding, the Court relied upon Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), which recognized the relationship as an interest "far more precious ... than property rights.”

      . Compare In re J.C., 250 S.W.3d 486 (Tex.App.-Fort Worth 2008, pet. denied), cert. denied, — U.S. -, 130 S.Ct. 1281, - L.Ed.2d-(2010). The court reasoned that because Child Protective Services (CPS) non-suited its termination of parental rights suit, and foster parents concurrently filed a new private termination suit, the mother's parental rights were terminated pursuant to a private termination suit, and thus, she possessed no mandatory statutory right to appointed counsel. Statutorily, that reasoning is undoubtedly correct. Its constitutional firmness is questionable. Under present statutory authority, such an appointment is discretionary under Section 107.021 of the Texas Family Code. Tex. Fam.Code Ann. § 107.021 (Vernon 2008).

      . Examples of authorized court appointment of counsel include: Tex. Gov't Code Ann. § 24.016 (Vernon 2004) (district judge may appoint counsel for party too poor to employ counsel), § 26.049 (Vernon 2004) (constitutional county court judge may appoint counsel for party who makes affidavit he or she is too poor to employ counsel).

      . Federal courts have rejected arguments for extending the right of effective assistance to Title VII cases even though the courts may appoint counsel. Nelson v. Boeing Co., 446 F.3d 1118, 1120 (10th Cir.2006) ("Although every client who engages a lawyer has a right of effective assistance of counsel in the sense that legal services falling below acceptable professional standards may give rise to tort liability, the term 'effective assistance of counsel’ is generally reserved for contexts in which the lawyer’s deficient performance provides a basis for reversal on appeal or collateral review. In criminal cases, the Supreme Court has found that right implicit in the Sixth Amendment’s guarantee that ‘in all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense.’ U.S. Const. amend. VI; see Strickland v. Washington, 466 U.S. 668, 685-86, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In civil cases, the right can arise from the Due Process Clause of the Fifth Amendment, but the only context in which courts have recognized a constitutional right to effective assistance of counsel in civil litigation is in immigration cases.").