Sharp Dissent in Walker v. DFPS (Tex.App.- Houston [1st Dist.] Oct. 9, 2009)(Sharp)
termination of parental rights)
Dissenting Opinion by Justice Sharp   
Before Justices Jennings, Hanks and Bland
01-07-00867-CV  Frederick Dewayne Walker v. Department of Family and Protective Services   
Appeal from 314th District Court of Harris County
Trial Court Judge: Hon. John Phillips  

Opinion Dissenting to denial of en banc consideration

The standard set forth in TRAP 41.2(c) regarding an appellate court’s en banc
consideration of a case speaks to “extraordinary circumstances requiring en banc

It is my position that both the panel’s opinion and dissent thereto, illustrate the case to be
worthy of the additional analyses to be obtained from the full court. Here the issue reduces
to what action or absence of action by counsel constitutes “an actual or constructive
denial” of “any meaningful assistance of counsel” in light of Burdine v. Johnson. 262 F.3d
336 (5th

Cir. 2001). I believe it to be an extraordinary circumstance that no appellate court has
addressed this issue with respect to the denial of effective assistance of counsel in
termination of parental rights cases.

The level of public scrutiny upon Texas jurisprudence in this area of effective assistance of
counsel is already heightened due, in part, to the Court of Criminal Appeals’ much-
maligned Burdine decision in the criminal context and given the particular factual
circumstances of this case, at the very least, we should accord it the attention of the full

For this reason, I respectfully dissent to the denial of en banc consideration.

Jim Sharp


Panel consists of Justices Jennings, Hanks, and Bland.

En banc consideration was requested. See Tex. R. App. P. 41.2(c).

Chief Justice Radack and Justices Jennings, Keyes, Hanks, Higley, Bland, Sharp, and Massengale
participated in the vote to determine en banc consideration.

A majority of the Court voted to deny en banc consideration. See Tex. R. App. P. 49.7.

Justice Sharp, dissenting from the denial of en banc consideration.

Justice Alcala recused herself and did not participate.

Publish. Tex. R. App. P. 47.2(b)