In the Interest of W.S.child v. Department of Family and Protective Services
CourtTexas Court of Appeals, 1st District (Houston)
Date FiledOctober 16, 2026
Docket01-26-00479-CV
StatusPublished
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Full Opinion
Opinion issued October 16, 2026
In The
Court of Appeals
For The
First District of Texas
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NO. 01-26-00479-CV
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IN THE INTEREST OF W.S., A CHILD
On Appeal from the 313th District Court
Harris County, Texas
Trial Court Case No. 2025-00549J
CONCURRING OPINION
The Court’s opinion explains our reasoning very well, so I have nothing to
add about the merits of the decision. My only additional comment relates to one
aspect of appeals from orders that terminate parental rights.
Appeals about the termination of parental rights have special features. First,
they move fast because we need to rule within 180 days of the notice of appeal. See
TEX. R. JUD. ADMIN. 6.2(a). The fast track presents a challenge because the clock
starts running before we have a record, let alone briefs to explain what each side
thinks the judge got right or wrong, and why. This case fits the normal pattern. We
received the notice of appeal in May, the record in June, one brief in July, and the
other brief in August, meaning that our 180-day period had shrunk by half before we
had heard from both sides.
Second, most of these appeals ask us to evaluate sufficiency of the evidence.
This case again illustrates the point, because it presents sufficiency attacks on three
findings (two about statutory predicates and one about best interest of the child).
Those sufficiency complaints require us to review all the evidence before we can
rule on which side has the better of the arguments.
With these realities, and with the stakes so high, let me add to the dialogue
between the courts and the appellate bar by making a suggestion about how to
present sufficiency arguments in a way that helps readers the most: distill the facts
and present them topically or thematically rather than on a witness-by-witness basis.
This is only a suggestion and not a demand, because advocates always know things
that the courts cannot know; but as coworkers in the same vineyard, we owe each
other good-faith efforts to improve our communication process.
What assists me the most is to see the evidence laid out topically, based on
the element or elements that the appellant maintains was proven inadequately.
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Listing witnesses in order and summarizing each one’s testimony does not help me,
and others have said that it does not help them, either. Judge Easterbrook has written
about his experience in the Solicitor General’s office, where he and his colleagues
were taught to put facts “always in the form of a narration, not a witness-by-witness
summary.” Frank H. Easterbrook, Friedman Lecture in Appellate Advocacy, 23
FED. CIRCUIT B.J. 1, 6 (2013).
Some states forbid such witness summaries.1 Texas does not go that far, but
one Texas attorney has cautioned against the practice: “In addition to identifying the
relevant ‘story,’ it is important to consider how to organize the facts to tell that story.
Advocates often make two mistakes in organizing the facts. The first is to fall back
on a chronological ordering of facts, when a non-chronological ordering may be
more persuasive. . . . A second mistake is summarizing testimony witness by
1
See IND. R. APP. P. 46(A)(6)(c) (“The statement [of facts] shall be in narrative form
and shall not be a witness by witness summary of the testimony.”); R.R. v. Richard
L. Roudebush Veterans Affs. Med. Ctr., 251 N.E.3d 550, 2024 WL 5003062, at *1
n.1 (Ind. Ct. App. 2024) (departure from the rule “impeded our review of this
matter”); N.J. CT. R. 2:6-2(a)(5) (“The statement [of facts] shall be in the form of a
narrative chronological summary incorporating all pertinent evidence and shall not
be a summary of all of the evidence adduced at trial, witness by witness.”); Metoui
v. City of Jersey City, No. A-3524-17T3, 2019 WL 2870305, at *1 (N.J. Super. Ct.
App. Div. July 3, 2019) (per curiam) (quoting the rule); Repple v. E. Tex. Motor
Freight Lines, 289 S.W.2d 109, 111 (Mo. 1956) (“Appellant’s ‘statement of the
facts,’ so far as material, merely purports to set forth separately a resume of the
testimony of named witnesses. A statement of the facts may be followed, if desired,
by a statement of the testimony of each witness relevant to the points presented; but
merely narrating the testimony of each witness without first making a fair and
concise statement of the facts is not a compliance with Rule 1.08.”).
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witness.” Robert Dubose, Advanced Brief Writing Strategies, 35 APP. ADVOC. 227,
230–31 (2026).
There may be occasions when a witness-by-witness summary will have a role,
because the advocate deems an overview vital to the argument. On those occasions,
a short table could work as a supplement to the statement of facts. E.g.:
Witness Key takeaways
1. Caseworker ***
2. Grandmother ***
3. Next door neighbor ***
4. Child’s caregiver ***
5. Mother ***
But in general, a witness-by-witness summary slows me down.
Given the time pressures that confront all of us who deal with these appeals,
I appreciate the help that we receive from the appellate bar. Lawyers face deadlines
that are even shorter than the ones the appellate courts face, so these comments
should not be mistaken as unsympathetic red ink. To the contrary, they come in a
positive spirit, to offer feedback from one reader in an ongoing conversation, to
better the lives of the lawyers who appear in our appellate courts, and to improve the
administration of justice for a society that depends on us to get things right.
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David Gunn
Justice
Panel consists of Justices Rivas-Molloy, Guerra, and Gunn.
Justice Gunn, concurring.
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