In the Interest of S.N., No. 10-08-00132-CV (Tex. App. 11/5/2008)

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IN THE INTEREST OF S.N., a Child.

No. 10-08-00132-CV.

Court of Appeals of Texas, Tenth District, Waco.

Opinion delivered and filed November 5, 2008.

Appeal from the 74th District Court, McLennan County, Texas, Trial Court No. 2007-952-3.

Rehearing granted.

Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA (Chief Justice GRAY concurs in the judgment of the Court. A separate opinion will not follow. He provides the following note.)^*

OPINION ON REHEARING

FELIPE REYNA, Justice.

Appellants have filed motions for rehearing in which they each contend that this Court should address their legal and factual insufficiency complaints challenging two of the four predicate grounds for termination of their parental rights because, even if the outcome of this appeal remains unchanged, collateral consequences may attach to the adverse findings which they challenge. We will grant rehearing and address the merits of these complaints. Nevertheless, our initial decision to affirm the judgment will not change.

Death of Party

After filing the motion for rehearing, counsel for Appellant "Charles" filed a motion to dismiss because of Charles's recent death. Counsel cites Olson v. Commission for Lawyer Discipline, 901 S.W.2d 520 (Tex. App.-El Paso 1995, no writ), for the proposition that the appeal is now moot because there are no property rights at stake. According to Olson, a civil appeal is rendered moot by the death of a party unless "the judgment affected the parties' property rights, as opposed to purely personal rights." Id. at 523-24; accord Casillas v. Cano, 79 S.W.3d 587, 591-92 (Tex. App.-Corpus Christi 2002, no pet.).

In this appeal, however, the judgment does affect property rights. If it were determined that the termination decree should be reversed, then the parent-child relationship between Charles and his daughter would be restored, and she would potentially be entitled to a share of his estate. Accordingly, the appeal has not been rendered moot by Charles's death. See Dunn v. Dunn, 439 S.W.2d 830, 834 (Tex. 1969); Verret v. Verret, 570 S.W.2d 138, 140 (Tex. Civ. App.-Houston [1st Dist.] 1978, no writ).

But while the appeal as a whole has not been rendered moot, the relief sought in the motion for rehearing filed on Charles's behalf will not change the outcome. Accordingly, we grant counsel's motion to dismiss insofar as counsel requests dismissal of the motion for rehearing as moot.

Breadth of Opinion

The current appellate rules are written to discourage appellate courts from addressing much beyond what is "necessary" in opinions. There are a number of practical and historical reasons for this emphasis on shorter opinions. But here we consider whether and when an appellate court's opinion should address more than that which is minimally "necessary" to resolve the appeal.

Rule of Appellate Procedure 47.1 addresses the scope of appellate court opinions, providing, "The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal." Tex. R. App. P. 47.1; see also Tex. Disposal Sys., Inc. v. Perez, 80 S.W.3d 593, 594 (Tex. 2002) (per curiam). This is not a new standard. See TEX. R. APP. P. 90(a), 707-708 S.W.2d (Tex. Cases) lxxxv (Tex. 1986, amended 1997);¹ TEX. R. CIV. P. 452(a), 629-630 S.W.2d (Tex. Cases) xli (Tex. 1982, repealed 1986);² Lone Star Gas Co. v. R.R. Comm'n of Tex., 767 S.W.2d 709, 710 (Tex. 1989) (per curiam); see also El Campo Ice, Light & Water Co. v. Tex. Mach. & Supply Co., 147 S.W. 338, 340 (Tex. Civ. App.-Dallas 1912, writ denied) (declining to address additional points which would not affect disposition); Worcester v. Galveston, Harrisburg & San Antonio Ry., 91 S.W. 339, 343-44 (Tex. Civ. App.-San Antonio 1905, no writ) (op. on reh'g) (same).

An initial issue presented in Nancy's motion for rehearing is whether an appellate court may address additional issues which have been properly raised and presented but which are not "necessary" to the final disposition of the appeal. The short answer is yes. See, e.g., Edinburgh Hosp. Auth. v. Trevino, 941 S.W.2d 76, 81 (Tex. 1997) (addressing issue not essential to disposition of appeal to provide trial court with guidance on retrial); Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996) (appellate court may consider summary-judgment grounds "that the movant preserved for review and trial court did not rule on in the interest of judicial economy"); FFP Mktg. Co. v. Long Lane Master Trust IV, 169 S.W.3d 402, 411 (Tex. App.-Fort Worth 2005, no pet.) (addressing additional issue "in the interest of judicial economy"); In re J.B., 93 S.W.3d 609, 617 (Tex. App.-Waco 2002, pet. denied) (addressing additional issues likely to arise on retrial). But the more relevant question is when should an appellate court exercise its discretion to address additional issues.

With the 2002 amendments to the appellate rules came an increased emphasis on the brevity of appellate opinions. In 2002, the Supreme Court amended Rule of Appellate Procedure 47.4 to govern the issuance of "brief memorandum opinion[s]" in lieu of the predecessor rule which governed when opinions should be published.³ Compare TEX. R. APP. P. 47.4 with TEX. R. APP. P. 47.4, 948-949 S.W.2d (Tex. Cases) cxxx (Tex. 1997, amended 2002). Under current Rule 47.4:

An opinion must be designated a memorandum opinion unless it does any of the following:

(a) establishes a new rule of law, alters or modifies an existing rule, or applies an existing rule to a novel fact situation likely to recur in future cases;

(b) involves issues of constitutional law or other legal issues important to the jurisprudence of Texas;

(c) criticizes existing law; or

(d) resolves an apparent conflict of authority.⁴

TEX. R. APP. P. 47.4 (emphasis added).

The increased emphasis on brevity was driven primarily by the Texas Legislature. See APPELLATE COURT PERFORMANCE MEASURES SUBCOMM., JUDICIAL PERFORMANCE MEASURES COMM., TEX. JUDICIAL COUNCIL, PERFORMANCE MEASURES: TEXAS COURTS OF APPEALS 9 (2000), http://www.courts.state.tx.us/tjc/publications/Perf_Measure/COA/Final_Report.pdf. In 1999, the 76th Legislature directed the Texas Judicial Council to:

develop measures which evaluate the work of individual justices on the courts of appeals. The measures developed by the Texas Judicial Council must be approved by the Legislative Budget Board and the Governor's Office. The data obtained for these measures will be reported in the Texas Judicial System Annual Report.

Act of May 26, 1999, 76th Leg., R.S., ch. 1589, art. IV, § 1, 1999 Tex. Gen. Laws 5446, 5938.

In response to this legislative directive, the Texas Judicial Council created a Committee on Judicial Performance Measures which charged its own Subcommittee on Appellate Court Performance Measures "to make recommendations to the Committee and to the full Council as to the best means for complying with the rider." PERFORMANCE MEASURES SUBCOMM., PERFORMANCE MEASURES at 9. After surveying the justices of the intermediate appellate courts and gathering data from the other states, the Subcommittee identified several factors which make it impractical and imprudent to establish performance measures for individual justices. See id. at 13-15. Instead, the Subcommittee made the following recommendations:

(1) The current performance measures that were developed by the courts of appeals, the Legislative Budget Board (LBB), and the Governor's Office of Budget and Planning should continue to be used for caseload management by each court in accordance with uniform data reporting standards approved by the courts of appeals. Through the Council of Chief Justices' Committee on Docket Equalization and Performance Measures, the courts of appeals should continue to ensure that there is uniform reporting of these measures.

(2) While the development of accurate and reliable quantitative measures to evaluate the performance of individual court of appeals justices is not practicable, the courts of appeals should continuously find ways to operate efficiently without sacrificing the quality of justice while remaining true to the rule of law.⁵

(3) The Office of Court Administration, with input and guidance from the courts of appeals, should continue to study whether the statistical data currently reported and published is presented in a clear, understandable format and what, if any, additional data should be collected.

Id. at 28-31 (footnote added).

In addition to a legislatively mandated quest for efficiency, an important limiting factor which must guide an appellate court's determination of which "additional" issues to address, if any, is the constitutional prohibition against issuance of advisory opinions. Article II, section 1 of the Texas Constitution provides for the separation of governmental powers among the three branches of government. TEX. CONST. art. II, § 1. The Supreme Court has construed this provision in part as prohibiting courts "from issuing advisory opinions that decide abstract questions of law without binding the parties, as that is a function of the executive rather than the judicial branch." S. Tex. Water Auth. v. Lomas, 223 S.W.3d 304, 307 (Tex. 2007).

Finally, there is the settled principle that courts should exercise restraint when deciding cases. "[T]he cardinal principle of judicial restraint—if it is not necessary to decide more, it is necessary not to decide more—counsels us to go no further." VanDevender v. Woods, 222 S.W.3d 430, 433 (Tex. 2007) (quoting PDK Labs., Inc. v. U.S. Drug Enforcement Admin., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring)).

Balancing Restrictions with Rights

In defining what "additional issues" should be addressed in an appellate opinion, we must balance a need to exercise judicial restraint and the foregoing limitations on our authority with the rights of the litigants. As a...