The state took Betty W.’s three children away from her—said she hadn’t properly cared for them—and in a subsequent lawsuit the trial court terminated all parent-child relationships. Betty appealed, arguing that the trial court should have given her a continuance so she’d have time to get counseling and qualify to get her children back.
The court of appeals noted that Betty had sought a continuance both before and after trial but hadn’t put this issue in a timely “statement of points for appeal” as required by the Family Code to preserve the issue for appeal. Yet the court of appeals addressed the issue anyway, ruling that the Family Code rule violated the Texas Constitution’s “separation of powers” doctrine because it “unduly interferes with our substantive power as an appellate court” to determine preservation of error in the lower court. In re D.W., 249 S.W.3d 625, 640, 645 (Tex. App.—Fort Worth), pet. denied per curiam, 260 S.W.3d 462 (Tex. 2008). In other words, the legislature had encroached upon “judicial power” the Texas Constitution granted to the court in its capacity as an appellate court.
The Texas Constitution vests in various Texas courts the “judicial power” of Texas government. TEX. CONST. art. V, § 1. However, when Texas courts define “judicial power,” they usually do so in terms of trial court powers—e.g., “the power to (1) hear evidence; (2) decide issues of fact raised by the pleadings; (3) decide relevant questions of law; (4) enter a final judgment on the facts and the law; and (5) execute the final judgment or sentence.” State v. Williams, 938 S.W.2d 456, 458-59 (Tex. Crim. App. 1997) (quoting Armadillo Bail Bonds v. State, 802 S.W.2d 237 (Tex. Crim. App. 1990)). But the Texas Constitution also grants judicial power to appellate courts, as suggested with a broader definition of judicial power: “the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for a decision.” Morrow v. Corbin, 122 Tex. 553, 558, 564, 62 S.W.2d 641, 644, 646 (1933); see also Eichelberger v. Eichelberger, 582 S.W.2d 395, 398 (Tex. 1979).