Appellate Review Without Reporter's Record

In a case called In re: A.S., a divided Beaumont Court of Appeals affirmed a trial court's termination of parental rights without a reporter's record.  The majority said that it could tell that the appeal would be frivolous based upon the record from a post-trial hearing. The majority refused the appellant's request that the trial itself be transcribed before considering the appeal.

This is an astounding decision.  At the post-trial hearing, counsel for the Texas Department of Family and Protective Services (TDFPS) told the trial court what the evidence had been at trial.  The parent's appellate attorney, who did not try the case, was unable to respond with any particularity.  Although the appellate attorney had spoken with the attorney who represented the parent at trial, the appellate attorney had no opportunity to review the trial evidence - by reviewing the reporter's record - because the Beaumont Court's majority decided it didn't need the reporter's record to conclude that the appeal was frivolous. 

Thus, the Court's majority decided the appeal of a termination case based on the recollection of the attorney for TDFPS of what the evidence at trial showed.

In dissent, Justice Gaultney put the matter bluntly:  "An appellate court cannot determine whether a factual sufficiency issue is frivolous without reviewing the evidence."  Citing a United States Supreme Court opinion, Justice Gaultney further inquired how an appellate attorney could "adequately challenge a frivolous finding on a factual sufficiency issue without access to a reporter’s record."

We hope that the appellate attorney files a petition for review with the Texas Supreme Court.  Cutting corners when it comes to due process undermines confidence in the judicial system.