In the Interest of I.S. and X.S. AKA X.R., Children v. Department of Family and Protective Services

Reversed and Remanded and Majority and Dissenting Opinions filed July 11,
2024.

In The

Fourteenth Court of Appeals

NO. 14-24-00055-CV

IN THE INTEREST OF I.S. AND X.S. AKA X.R., CHILDREN

On Appeal from the 507th District Court
Harris County, Texas
Trial Court Cause No. 2022-32359

DISSENTING OPINION

In her first issue, Mother complains that the trial court violated her
procedural due process rights because court-imposed time limits on direct- and
cross-examination applicable to all participants prevented her from fully presenting
her case-in-chief and from fully cross-examining all witnesses. The court sustains
this issue; I would overrule it on preservation of error grounds.

The trial court has great discretion in the conduct of a trial. Dow Chem. Co.
v. Francis, 46 S.W.3d 237, 240 (Tex. 2001). Part and parcel to the court’s
discretionary case oversight is the inherent power to control the disposition of the
cases on its docket “with economy of time and effort for itself, for counsel, and for
litigants.” See State v. Gaylor Inv. Trust P’ship, 322 S.W.3d 814, 819 (Tex.
App.—Houston [14th Dist.] 2010, no pet.); In re M.A.S., 233 S.W.3d 915, 924
(Tex. App.—Dallas 2007, pet. denied); Tex. R. Evid. 611(a). A trial court may
properly intervene to maintain control in the courtroom, to expedite the trial, and to
prevent what it considers to be a waste of time. Hoggett v. Brown, 971 S.W.2d
472, 495 (Tex. App.—Houston [14th Dist.] 1997, no pet.). Although this power is
broad, it is not unfettered. Gaylor Inv. Trust P’ship, 322 S.W.3d at 819; see
Metzger v. Sebek, 892 S.W.2d 20, 38 (Tex. App.—Houston [14th Dist.] 1997, writ
denied). “The control given the trial judge must be exercised reasonably, and a
party must be given a fair opportunity to present its case so that the factfinder may
ascertain the truth.” In re Moreno, No. 11-10-00353-CV, 2010 WL 5059519, at *4
(Tex. App.—Eastland Dec. 10, 2010, orig. proceeding) (mem. op.).

As a prerequisite to presenting a complaint for appellate review, the record
must show that the complaint was made to the trial court by a timely request,
objection, or motion. Tex. R. App. P. 33.1(a)(1). As the court correctly
acknowledges, this preservation requirement applies to due process complaints like
Mother’s that challenge trial court procedures. See, e.g., Ex parte Alakayi, 102
S.W.3d 426, 434-35 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d). When a
trial court limits the amount of time a party has to present its case, and thereby
prevents a party from presenting all of its evidence, the party must object to the
time limit and make an offer of proof of the evidence it was prevented from
presenting to preserve error on appeal. In re Ludington, No. 01-16-00411-CV,
2017 WL 219162, at *4 (Tex. App.—Houston [1st Dist.] 2017, orig. proceeding)
(mem. op.); In re A.E.A., 406 S.W.3d 404, 420 (Tex. App.—Fort Worth 2013, no
pet.). To effectively preserve error, any objection must not only be specific but

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timely. See Johnson v. Nat’l Oilwell Varco, LP, 574 S.W.3d 1, 8 (Tex. App.—
Houston [14th Dist.] 2018, no pet.) (failure to make a timely, specific objection to
time limits imposed by a trial court waives any error).

The court states in passing that Mother’s objection—I assume it was a due
process objection—was timely. The record does not support the court’s assertion.
During a pre-trial conference eight days before trial, the court explained that they
would conduct voir dire on a Tuesday and the parties would present evidence over
the remaining three days of that week. The available time for evidence
presentation from Wednesday through Friday would be divided equally among the
five participating parties: (1) the Department of Family and Protective Services;
(2) Mother; (3) Father of X.R.; (4) Father of I.S.; and (5) the children. The court
allocated approximately 3.25 hours for each party, to be monitored with timers.
Mother asserted no objection. The court explained (more than once) that the time
taken by each party for opening statements, as well as any objections and argument
during evidence presentation, would be deducted from that party’s total time
allotment. Mother asserted no objection. The record reflects that Mother’s
counsel used 20 minutes for her opening statement. Mother was the first witness to
testify. During the lunch break on the first day of testimony, the court announced
each party’s remaining time, stating that Mother had 2 hours, 45 minutes, 51
seconds remaining.1 Again, Mother asserted no objection.

Testimony continued. During the testimony of the fourth witness, the court
took a break and announced each party’s remaining time. The court told Mother

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Of Mother’s allotted 3.25 hours of total time, she used 20 minutes for her opening
statement. The court’s calculation of Mother’s remaining time at the first lunch break shows that
the court must have deducted approximately 10 minutes from Mother’s time for her objections to
evidence and arguments occurring during the Department’s questioning of Mother that morning.
The record supports the trial court’s calculation.

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that she had 2 hours, 20 minutes, and 44 seconds remaining. Once again, Mother
asserted no objection to the time limits or to the calculation of her remaining time.

On the second day of testimony, during Mother’s cross-examination of the
eighth witness, the court told Mother’s counsel that she had 46 minutes remaining.
Counsel responded, “Thank you”, asserted no objection, and continued with cross-
examination. During the next break, the court announced that Mother had 42
minutes, 49 seconds remaining. At that time, Mother’s counsel stated that she had
not begun her case-in-chief and believed that she could not put on her case in 42
minutes. “If there’s any way, we can get more time, we would request it at this
time,” Mother’s counsel asked. The following exchange occurred:

THE COURT: The Court doesn’t have any more time. Y’all
announced that that was the time that was required by all of y’all. The
Court allotted the time accordingly. If y’all recall at the very
beginning, even back when we did the pretrial, this is what -- hang on,
Ms. Young. This is what y’all told me.
And I said, okay, this is the hours in the day. As a matter of
fact, I’ve added an extra hour by releasing the jury an hour later
yesterday, okay, to be able to allocate enough time for all of y’all.
Mr. Jones is not using his time, only a few minutes here and
there. So that’s how it’s being allotted amongst everyone with the
same amount of time.
MS. YOUNG: I’m sorry, Judge.
THE COURT: It was three hours and 15 minutes per side.
That’s what it was allotted for everyone.
MS. YOUNG: Yeah. I understand, Judge, that that was the
time that the Court gave us. I didn’t realize that that was the time that
we were agreeing to.
THE COURT: That’s what y’all agreed to.
MS. YOUNG: And my understanding is that that’s the time the
Court gave us, not that we could just do it in three hours.

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THE COURT: No, ma’am. Y’all said, I can try this case in
four days including the jury. And this is four days including the jury.
And the Court allotted that time.
MS. YOUNG: Well, we just object to not having enough time
to put on our case.
THE COURT: Okay. Ms. Young, your objection is noted.
Y’all agreed to this. And the Court is moving forward with this. And
I’ve been giving y’all the time throughout the entire time. Thank
y’all.
(Recess taken)

In my view, Mother’s counsel’s failure to assert an objection to the court’s
time limitations until after she had used the substantial majority of her allotted time
results in waiver because her objection was not timely. See Rhone v. City of Texas
City, 657 S.W.3d 857, 865 (Tex. App.—Houston [14th Dist.] 2022, no pet.) (to
preserve complaint to trial time limits, specific objection is required when court
imposed the limit); State v. Reina, 218 S.W.3d 247, 254 (Tex. App.—Houston
[14th Dist.] 2007, no pet.) (state waived error by failing to object to time
limitations at the time the court imposed them); Schwartz v. Forest Pharms., Inc.,
127 S.W.3d 118, 126-27 (Tex. App.—Houston [1st Dist.] 2003, pet. denied)
(concluding that party failed to preserve error as to court’s time limit because he
failed to object when he first knew of the limitation); see also Anastasi v.
McHorse, No. 03-23-00274-CV, 2024 WL 968887, at *10 (Tex. App.—Austin
Mar. 7, 2024, no pet.) (holding that mother failed to preserve complaint about the
trial court’s time limits because she failed to make a timely objection at the
“earliest possible opportunity” to the time limits set by the trial court). The
majority’s statement that Mother timely asserted her due process objection to the
trial court’s time limitations is inconsistent with binding authority from our court
and persuasive authority from other appellate courts.

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Mother insists that she thought the 3.25-hour limit was the limit for each
party’s case-in-chief and that she did not know that her objections and arguments
would be deducted from her time limit. This assertion is flatly contradicted by the
record. It would have been clear from the trial court’s explanations during the pre-
trial conference and the first day of testimony that the 3.25-hour time limit was not
applicable exclusively to each party’s case-in-chief. Certainly by the first lunch
break on the first day of the first witness’s testimony when the trial court
announced Mother’s remaining time, Mother’s counsel would have known that her
time allotment had been reduced by opening statements and the time spent by
Mother’s counsel objecting to evidence and presenting argument on those
objections. Yet she asserted no objection to the time limits at that time. Mother’s
counsel waited until she had 42 minutes remaining before asserting any complaint
whatsoever about the trial court’s time limitations, which were imposed with the
input of all parties, including Mother. Her objection came too late and is therefore
waived. Moreover, “when trial courts have set time limits with the input of parties
and then held parties to those time limits, reviewing courts have not found a denial
of a fair trial.” E.J. v. Tex. Dep’t of Fam. & Protective Servs., No. 03-18-00473-
CV, 2018 WL 6627720, at *5 (Tex. App.—Austin Dec. 18, 2018, pet. denied)
(mem. op.); see, e.g., Reina, 218 S.W.3d at 254-56.

The court errs in holding that Mother preserved her procedural due process
complaint. As I conclude Mother waived her procedural due process complaint, I
dissent from the court’s judgment.

/s/ Kevin Jewell
Justice
Panel consists of Justices Jewell, Zimmerer, and Hassan. (Hassan, J., majority).

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