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On February 14, 2006, the trial court held a hearing, and, after hearing evidence from DFPS, the trial court awarded temporary managing conservatorship to DFPS.
The court may not grant an additional extension that extends the suit beyond the required date for dismissal under Subsection (b).․See Former Tex.
Nor did article 32A.02 take into account the reason for the delay between accusation and trial, whether the accused asserted the right to a speedy trial, or whether denial of the right worked to his prejudice.
Ed.2d 101 (1972) (holding that in speedy trial claim, court considers (1) length of delay; (2) reasons for delay; (3) timeliness of assertion of right to speedy trial; and (4) any prejudice caused by delay). Because article 32A.02 required that prosecutions be set aside, with prejudice, after 120 days, without due regard for the constitutional objective of the speedy trial clauses or the constitutionally relevant factors in meeting that objective, the court held the Act to be an impermissible encroachment upon prosecutorial discretion, in violation of the separation of powers provision in the Constitution.
On April 13, 2007, DFPS filed an amended SAPCR petition that named only S. The parties reached an agreement regarding all of the children except T. Appellees contended that they did not get proper notice of the January 9 extension hearing and, therefore, the extension of the trial court's dismissal date was invalid. On July 11, 2007, DFPS filed a notice of appeal, seeking to challenge the trial court's order that dismissed the termination proceedings. § 263.405(a) (appeal of final order rendered under chapter 263 “is governed by the rules of the supreme court for accelerated appeals in civil cases and the procedures provided by this section”).
In other words, the Act's provisions were not directed at achieving the stated purpose of the Act but at the performance of a core judicial function, the prosecutors preparation for trial.
However, a constitutional problem arises when the core functioning of the judicial process in a field constitutionally committed to the control of the courts is interfered with by the executive or legislative branches.
The court acknowledged that “the Legislature could establish a new right under its general plenary power if that right did not infringe upon another department's separate power.” 739 S.
On January 9, 2007, the trial court signed an order extending the dismissal date to August 10, 2007 and set the case for trial on April 23, 2007. Another dismissal hearing occurred on June 25, 2007, in which Travis and Andrea argued that they did not get six days notice of the hearing to consider DFPS's motion for extension. Laws 2108, 2113, amended by Act of May 22, 2001, 77th Leg., R.
On January 5, 2007, DFPS filed a motion under section 263.401(b) of the Code requesting a 180-day extension of the final order date to comply with section 263.401. On the same date, Travis filed a motion to set aside the trial court's order extending the final order deadline because DFPS failed to give him proper notice of the January 9 hearing, which would have enabled him to voice an objection to the extension sought by DFPS.