in Re ETC Katy Pipeline, LTD

IN THE TENTH COURT OF APPEALS No. 10-08-00212-CV No. 10-08-00213-CV No. 10-08-00214-CV No. 10-08-00215-CV No. 10-08-00216-CV In re ETC Katy Pipeline, LTD Original Proceeding MEMORANDUM Opinion ETC Katy Pipeline, LTD. (ETC) filed a petition for writ of mandamus in each of these five original proceedings challenging the trial court's orders denying its motions to appoint special commissioners and its orders granting the landowners’ motions to dismiss in each of the underlying cases.[1] We will conditionally grant the writ in each case. Background On February 14, 2008, ETC, a gas utility company, filed five original petitions for condemnation seeking to obtain property from the landowners through eminent domain. Commissioners were appointed and a special commissioners’ hearing was set. On the day of the hearing, counsel for ETC told the landowners and the special commissioners that it did not want to have the hearing and that it would be dismissing its cases. ETC filed motions to dismiss and notices to nonsuit its claims against the landowners on March 12, 2008 and, through alleged inadvertence, requested that the cases be dismissed “with prejudice.” ETC filed its second set of five condemnation petitions, at issue in this mandamus, on March 17, 2008 in an effort to cure the errors contained in the original condemnation petitions. The trial court refused to appoint special commissioners for the second condemnation cases. The landowners filed motions to dismiss on the grounds of res judicata because the original petitions were dismissed “with prejudice.” The trial court signed orders refusing to appoint special commissioners, granted the motions to dismiss, and awarded attorney’s fees to the landowners. ETC brings these five petitions for writ of mandamus asking us to direct the trial court to vacate its orders denying ETC’s motions to appoint special commissioners and dismissing the petitions. Mandamus Relief Mandamus is "an extraordinary remedy, available only in limited circumstances." In re Chu, 134 S.W.3d 459, 462 (Tex. App.—Waco 2004, orig. proceeding). A writ of mandamus will issue only if (1) the trial court violates a duty imposed by law or clearly abuses its discretion, and (2) there is no other adequate remedy at law, such as an appeal. In re Sw. Bell Tel. Co., 226 S.W.3d 400, 403 (Tex. 2007) (orig. proceeding); In re Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding) (citing Walker v. Packer, 827 S.W.2d 833 (Tex. 1992)). Abuse of Discretion ETC argues that the trial court abused its discretion when it refused to appoint special commissioners after the second petitions were filed. A condemnation proceeding is a two-part procedure involving first, an administrative proceeding, and then if necessary, a judicial proceeding. In re State, 65 S.W.3d 383, 385 (Tex. App.—Tyler 2002, orig. proceeding) (citing Amason v. Natural Gas Pipeline Co., 682 S.W.2d 240, 241-42 (Tex. 1984)). During the administrative phase, the special commissioners award compensation for the taking and assess the costs of the proceeding. Amason, 682 S.W.2d at 242; see Tex. Prop. Code Ann. § 21.042 (Vernon Supp. 2002), § 21.047 (Vernon 2000). A trial court does not have jurisdiction in the administrative phase of a condemnation proceeding; therefore, any judgment and order made outside of the statutory authority is void. In re Energy Transfer Fuel, LP, 250 S.W.3d 178, 181 (Tex. App.—Tyler 2008, orig. proceeding). The beginning phase of an eminent domain proceeding is entirely administrative, and it does not convert into a judicial proceeding until objections to the special commissioners’ award are filed. See Tex. Prop. Code Ann. § 21.018 (Vernon 1984); Denton County v. Brammer, 361 S.W.2d 198, 200 (Tex. 1962). Having reviewed the mandamus record before us and the applicable law, we conclude that the refusal to appoint commissioners and the “dismissal with prejudice” ruling were abuses of discretion. The trial court lacked jurisdiction to act outside of the statute during the administrative phase of the condemnation proceeding. See In re State, 85 S.W.3d at 875 (holding that trial court lacks jurisdiction to act beyond statute during administrative phase of proceeding and any such action is abuse of discretion). The trial court abused its discretion because it had a duty to appoint special commissioners and lacked jurisdiction to dismiss ETC’s cases on res judicata grounds. We sustain ETC’s first issues in each proceeding. Inadequate Remedy at Law An abuse of discretion alone does not warrant the issuance of a writ of mandamus. We must also consider whether ETC has an adequate remedy at law by appeal or otherwise. There is not an adequate remedy by appeal when a party is in danger of permanent deprivation of substantial rights. Id. at 388. The landowners argue that an adequate remedy by appeal is available because ETC is currently pursuing appellate remedies in this court.[2] See In re Lerma, 144 S.W.3d 21 (Tex. App.—El Paso 2004, orig. proceeding) (denying writ when relator had two appeals pending when mandamus was filed). The Fourth Court of Appeals’ opinion in Garcia is instructive on this issue. See Gulf Energy Pipeline Co. v. Garcia, 884 S.W.2d 821, 824 (Tex. App.—San Antonio 1994, orig. proceeding). In Garcia, the San Antonio Court of Appeals found mandamus to be proper where the relator, who was seeking to condemn an easement for a pipeline, faced a sixty-day delay in the condemnation proceeding due to the trial court's interference and penalties and expenses associated with the delay. The Garcia court concluded that "neither the district court nor a court of appeals has any mechanism by which it could return the expedited procedure and costs of which the relator was deprived." Id. The court also held that mandamus relief is generally proper when a judicial body operates to deny a litigant a peculiar right or directly interferes with the jurisdiction of another court or administrative body. Id. Like Garcia, appeal is not an adequate remedy in this case. In Garcia the trial court, by way of injunction and continuance, was effectively delaying the commissioners’ hearing process by sixty days. Here, the trial court has gone far beyond Garica by refusing to appoint special commissioners. Additionally, more than ninety days have passed since the filing of the original petition. The Property Code provides condemnors a substantial right to an expedited hearing and possession of the easement immediately after the commissioners file their findings. See id. The delay involved in this case, like Garcia, is not the delay of waiting until a court proceeding is over to appeal, but the delay of wrongfully halted proceedings over which another body has jurisdiction. Id.; cf. HCA Health Servs. v. Salinas, 838 S.W.2d 246, 248 (Tex. 1992) (no adequate remedy by appeal for litigation deadlocked when two courts attempted to exercise jurisdiction). Because the trial court's orders permanently deprive ETC of the substantial right of an expedited procedure and it has no adequate remedy by appeal, ETC is entitled to mandamus relief. See Prudential, 148 S.W. 3d at 135-39. We sustain ETC’s second issue. Conclusion Having determined that the trial court was without jurisdiction to refuse to appoint special commissioners and to grant the motions to dismiss on res judicata grounds, we conditionally grant mandamus relief. See In re Energy Transfer Fuel, LP, 250 S.W.3d at 182; see also Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005). The writ will issue in each case only if Respondent fails to withdraw his order granting the motion to dismiss signed on March 31, 2008, or fails to appoint special commissioners within 21 days from the date of this opinion. BILL VANCE Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna (Chief Justice Gray dissents with a note)* Petitions granted Opinion delivered and filed October 1, 2008 [OT06] * (Chief Justice Gray would deny each of the five petitions for writ of mandamus. A separate opinion will not issue. He notes, however, that while he agrees with the analysis of In re State, 65 S.W.3d 383 (Tex. App.—Tyler 2002, orig. proceeding) and Gulf Energy Pipeline Co. v. Garcia, 884 S.W.2d 821 (Tex. App.—San Antonio 1994, orig. proceeding), those proceedings are easily distinguished. In State and Garcia, the administrative portion of the condemnation proceeding was ongoing, and the trial court was attempting to exercise control over and during the administrative process. No final judgment had been rendered dismissing the proceeding. Thus, the only way to obtain relief from the trial court’s interference was by mandamus. In this proceeding, however, the trial court has rendered a final judgment of dismissal. That judgment can be directly and immediately appealed. This mandamus proceeding could be a more timely review of the trial court’s judgment than a direct appeal if we give it our immediate attention. But that is also true of any proceeding that has been finally disposed by the trial court. If the appeal needs to be expedited because of the nature of the underlying dispute, it can be. But there is no justification, much less authority, for hurtling this proceeding to the front of the line because it is filed as a mandamus when a direct appeal is not only available but is actually currently pending and, if appropriate, a motion to expedite can be filed and considered. Because there is an adequate remedy by direct appeal, he would deny ETC’s petition for a writ of mandamus. The Court’s ruling will, of course, moot the pending appeals and therefore Chief Justice Gray would simultaneously dismiss those five proceedings.) [1] The real-parties-in-interest/landowners in the five cases are FPJ Pipeline Corridor No. 1 L.L.C., FPJ Land Company, L.T.D., Reagan Management Company, Frederick L. Reagan, John F. Reagan, Patricia R. Myrick, FLR Pipeline Corridor No.1 L.L.C., Camp Cooley, LTD., North CC Pipeline Corridor, L.L.C., Martin Pipeline Corridor, L.L.C., Circle M Ranch, LTD., Ruth Martin Ranch, Inc., McCormick Pipeline Corridor, L.L.C., Kenneth C. McCormick, Sr., and Kenneth C. McCormick, Jr. The Respondent is the Honorable Robert Stem, sitting in the 82nd Judicial District Court of Robertson and Falls Counties, Texas. [2] ETC filed appellate briefs with this court on August 19, 2008 arguing in two issues that (1) the trial court abused its discretion in dismissing the case with prejudice when “dismissal with prejudice” was requested inadvertently and (2) that it was error for the court to deny its post-trial motions requesting that the order be corrected and dismissed “without prejudice.” , 485 U.S. 80, 86-87, 108 S. Ct. 896, 900, 99 L. Ed. 2d 75, 82 (1988); Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex. 1988) (per curiam). The court granted Spencer’s motion for new trial on September 12. In the meantime, the court sent notice of trial on September 8. The notice informed the parties that the case was set for “final hearing” on October 23. CPS sent a follow-up notice on September 21 clarifying that the case would be heard on October 24. Spencer filed a motion for continuance on September 26 asking for additional time to prepare for trial because: (1) she did not receive the forty-five days’ notice required by Rule of Civil Procedure 245; and (2) her counsel needed additional time to organize the “approximately 1,000 pages” of documents provided by CPS on September 21 and to conduct appropriate discovery. The court heard Spencer’s continuance motion on September 29 and “grant[ed] the continuance until October 31st.” Spencer filed a second continuance motion on October 19, contending that the notice given by the court on September 29 of the October 31 setting still did not provide the forty-five days’ notice required by Rule 245. The court heard this motion on October 24 and denied it. Spencer noticed depositions for three of CPS’s witnesses on October 25. CPS filed a motion to quash these deposition notices the next day. The court heard this motion on October 27. At the hearing, Spencer made a third continuance motion again urging Rule 245 as the basis for the continuance. The court granted CPS’s motion to quash and denied Spencer’s third continuance motion that same day. The parties proceeded to trial as scheduled on October 31. The jury returned its verdict on November 9. The court signed the decree on November 17. NO EVIDENCE Spencer claims in her second issue that the record contains no evidence or factually insufficient evidence to support a finding that she knowingly placed or allowed J.B. to remain in dangerous conditions or surroundings. When we decide a “no evidence” point, we consider only the evidence and inferences which tend to support the contested issue and disregard all evidence and inferences to the contrary. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). We will sustain a no evidence point if: (a) there is a complete absence of evidence of a vital fact; (b) we are barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence conclusively establishes the opposite of the vital fact. Id. (citing Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362-63 (1960)). “More than a scintilla of evidence exists when the evidence supporting the finding, as a whole, ‘rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.’” Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995) (quoting Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994)). We apply this standard of review in termination cases, which require proof by clear and convincing evidence, even though this standard was developed in preponderance-of-the-evidence cases. See In re A.P., 42 S.W.3d 248, 256 (Tex. App.—Waco 2001, no pet.); Justice Bill Vance, The Clear and Convincing Evidence Standard in Texas: A Critique, 48 Baylor L. Rev. 391, 413 (1996). When J.B. was three months’ old, part of the roof of the house in which Spencer and he were living collapsed in a rainstorm. They “immediately moved out.” They lived for a period of time in a local motel. An acquaintance of Spencer’s testified that her motel room was “filthy.” She would not have allowed her own children to live “in something like that.” According to this witness’s testimony, Spencer and J.B. lived in the motel room for a period of time, though she could not say how long. The evidence regarding the condition of Spencer’s motel room constitutes some probative evidence that Spencer knowingly allowed J.B. to remain in dangerous conditions or surroundings. Thus, we conclude that the no-evidence portion of Spencer’s second issue is without merit. In view of our disposition of the no-evidence portion of Spencer’s second issue, we need not address the no-evidence portions of her third and fourth issues. In view of our disposition of Spencer’s notice issue, we need not address those portions of her second, third and fourth issues which challenge the factual sufficiency of the evidence to support the verdict. NOTICE OF TRIAL SETTING Spencer argues in her first issue that reversal is required because she did not receive the notice required by Rule 245. We agree. Rule 245 provides in pertinent part: The Court may set contested cases on written request of any party, or on the court's own motion, with reasonable notice of not less than forty-five days to the parties of a first setting for trial, or by agreement of the parties; provided, however, that when a case previously has been set for trial, the Court may reset said contested case to a later date on any reasonable notice to the parties or by agreement of the parties. Noncontested cases may be tried or disposed of at any time whether set or not, and may be set at any time for any other time. Tex. R. Civ. P. 245. Rule 245 requires that a party to a contested case receive “notice of not less than forty-five days” for a first trial setting. See id. The district clerk notified the parties on September 8 that the case was set for trial on October 23. The clerk sent this notice by facsimile machine and by certified mail, return receipt requested. This added three days to the forty-five provided by Rule 245. Id. 21a; Lewis v. Blake, 876 S.W.2d 314, 316 (Tex. 1994) (per curiam). Thus, the trial could not have commenced before October 26. For this reason, the September 8 notice did not provide adequate notice of trial under Rule 245. CPS sent a letter to the attorneys in the case on September 21 notifying them that the trial would begin on October 24. Although the record does not indicate the manner in which this letter was served on counsel, the letter itself is dated only thirty-three days before the trial setting. Thus, it did not satisfy Rule 245. The court heard Spencer’s first motion for continuance on September 29. Apparently the court agreed that its initial notice did not satisfy Rule 245, because it granted Spencer’s continuance motion in part. The court rescheduled Spencer’s trial for October 31. Thus, the court gave Spencer thirty-two days’ notice of the October 31 trial setting. This did not satisfy Rule 245. Spencer’s second and third continuance motions objected that the court’s September 29 notice still did not satisfy Rule 245. CPS responded that under the combined notices Spencer had more than forty-five days notice (from September 8 to October 31) that her case would go to trial. The court apparently accepted this reasoning and denied Spencer’s second and third continuance motions. Rule 245 requires a minimum of forty-five days’ notice of the trial “setting.” Id. 245. Notice that a case is going to trial does not equate to notice of when the case is going to trial. None of the notices in this case provided the required notice. See Bell Helicopter Textron, Inc. v. Abbott, 863 S.W.2d 139, 140-41 (Tex. App.—Texarkana 1993, writ denied). Accordingly, the court abused its discretion by denying Spencer’s continuance requests. We now decide whether this error requires reversal. Several courts have reversed for violation of Rule 245 without reference to harm. See, e.g., Platt v. Platt, 991 S.W.2d 481, 484 (Tex. App.—Tyler 1999, no pet.); In re Estate of Crenshaw, 982 S.W.2d 568, 571 (Tex. App.—Amarillo 1998, no pet.); Carson v. Hagaman, 824 S.W.2d 267, 269-70 (Tex. App.—Eastland 1992, no writ). The courts seem to have done so because of a perception that providing less notice than required by Rule 245 constitutes a due process violation or because compliance with the rule is “mandatory.” See Platt, 991 S.W.2d at 483; Crenshaw, 982 S.W.2d at 571; Carson, 824 S.W.2d at 269-70. At least one court has conducted a harm analysis before reversing for violation of Rule 245. See Bell Helicopter Textron, 863 S.W.2d at 141. Due process requires that a party receive “reasonable notice” of trial. See Peralta, 485 U.S. at 84, 108 S. Ct. at 899, 99 L. Ed. 2d at 81; In re Marriage of Parker, 20 S.W.3d 812, 818 (Tex. App.—Texarkana 2000, no pet.). “Rule 245 provides a notice requirement that goes beyond the requirements of due process.” Parker, 20 S.W.3d at 818. We agree with this reasoning and conclude that the fact that a party has received less than the forty-five days’ notice required by Rule 245 does not, standing alone, constitute a due process violation. Id. at 818-19. To obtain reversal on the basis of trial error, a party must establish that the error was “harmful.” See Tex. R. App. P. 44.1(a); Texas Dep’t of Human Servs. v. White, 817 S.W.2d 62, 63 (Tex. 1991); Owens-Corning Fiberglas Corp. v. Malone, 916 S.W.2d 551, 557 (Tex. App.—Houston [1st Dist.] 1996), aff’d, 972 S.W.2d 35 (Tex. 1998). A trial error requires reversal (i.e., is “harmful”) if it: (1) probably caused the rendition of an improper judgment; or (2) probably prevented the appellant from properly presenting the case to the court of appeals. Tex. R. App. P. 44.1(a); White, 817 S.W.2d at 63. Spencer’s attorneys made their first appearance in her behalf on September 7 when they filed the motion for new trial. CPS provided counsel with a copy of “the Department’s file” on September 21. According to Spencer’s counsel, “The file contains approximately 1000 pages, completely out of order, which must be organized, categorized and reviewed prior to even being able to depose witnesses.” CPS did not dispute this characterization in the hearing on Spencer’s first continuance motion. Spencer’s counsel served discovery requests on CPS on September 23. The court heard Spencer’s first continuance motion on September 29. Spencer’s counsel informed the court in this hearing that he would like to depose some of CPS’s witnesses after reviewing CPS’s discovery responses. He noted that there would not be adequate time to accomplish this with the October 24 setting. CPS’s counsel responded: [A]s the court is probably aware, it’s my practice to give the respondent’s attorney the entire record in exchange for them agreeing not to serve me with discovery. Ms. Maughan was insisting that she get the record immediately, so I just told CPS to give her the record as soon as possible. To answer this discovery, I’m going to just look through the record to answer it. I’m going to get the same disorganized record that they have got. They can look through the record and answer that as well as I can— probably even better—because I don’t even have the record yet and I’m probably not going to request it for another two weeks. I’m going to have to go through that same record and try to prepare for the case. As noted above, the court partially granted Spencer’s continuance, moving the trial setting one week to October 31. CPS responded to Spencer’s initial discovery requests on October 24. The next day, Spencer noticed three CPS witnesses for depositions on October 30, the day before trial. CPS filed a motion to quash these deposition notices on October 26 on the basis that the depositions were set less than thirty days before trial. See Tex. R. Civ. P. 190.3(b)(1)(A). The court heard CPS’s motion to quash and Spencer’s third continuance motion the next day. The court granted CPS’s motion to quash and denied Spencer’s continuance motion, and the parties proceeded to trial four days later. Spencer argues that she was harmed by the court’s error because she did not have sufficient opportunity to conduct the depositions she felt necessary to present her case. CPS responds that the court could have quashed Spencer’s deposition notices even if it had given her additional notice of trial because the depositions still would have been set less than thirty days before trial. We note, however, that the court has discretion not to quash a deposition set less than thirty days before trial. See Tex. R. Civ. P. 190.4(a) (court may set its own discovery control plan “tailored to the circumstances of the specific suit”), 190.5 (“court may modify a discovery control plan at any time”), 191.1 (except where expressly prohibited, discovery rules “may be modified in any suit . . . by court order for good cause”). Rule of Appellate Procedure 44.1(a)(2) provides that an error in a civil case will require reversal if it “probably prevented the appellant from properly presenting the case to the court of appeals.” Tex. R. App. P. 44.1(a)(2). We have previously held that a trial court's improper refusal to permit the defendants in a class-certification case to present evidence “plainly prevented Defendants from presenting their case to us.” See Monsanto Co. v. Davis, 25 S.W.3d 773, 786 (Tex. App.—Waco 2000, pet. dism’d w.o.j.). We likewise hold that the court’s failure to provide the notice required by Rule 245 “plainly prevented [Spencer] from presenting [her] case to us” because it prevented her from developing evidence important to her case. Id. Accordingly, we conclude that Spencer’s first issue is meritorious. Even though this error requires reversal, we will also address two other issues likely to arise on the retrial of this cause. See Edinburg Hosp. Auth. v. Treviño, 941 S.W.2d 76, 81 (Tex. 1997); Indemnity Ins. Co. of N. Am. v. Williams, 129 Tex. 51, 53, 99 S.W.2d 905, 906 (1937); Boone v. LeGalley, 29 S.W.3d 614, 616 (Tex. App.—Waco 2000, no pet.). EVIDENCE FROM PRIOR REMOVAL Spencer’s fourteenth issue challenges the court’s admission of testimony and photographs regarding the condition of her home several years before J.B. was born. She contends that this evidence is irrelevant and unfairly prejudicial. CPS responds that the evidence was admissible to rebut Spencer’s testimony and that of a former CPS caseworker. The decision to admit or exclude evidence rests within the sound discretion of the trial court. See Texas Dep’t of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000); In re J.O.C., 47 S.W.3d 108, 112 (Tex. App.—Waco 2001, no pet.). A trial court abuses this discretion when it rules on the admissibility of the evidence in an arbitrary or unreasonable manner or without reference to guiding rules or principles. See J.O.C., 47 S.W.3d at 112 (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)); accord City of Brownsville v. Alvarado, 897 S.W.2d 750, 754 (Tex. 1995). We note that the condition of Spencer’s home several years before J.B.’s birth has no relevance to the issue of whether she knowingly placed or allowed J.B. to remain in dangerous conditions or surroundings. See In re D.T., 34 S.W.3d 625, 632-33 (Tex. App.—Fort Worth 2000, pet. denied) (“the environment of the child must be examined to determine if that is a source of endangerment to the child”); In re B.B., 971 S.W.2d 160, 169 (Tex. App.—Beaumont 1998, pet. denied) (no evidence to support termination on this basis when there was “no evidence in the record of the conditions or surroundings P.B. was in for th[e] few days [he was in his mother’s custody before removal]”); see also Ybarra v. Texas Dep’t of Human Servs., 869 S.W.2d 574, 577 (Tex. App.—Corpus Christi 1993, no writ) (“The relevant time frame to determine whether there is clear and convincing evidence of endangerment is before the child[ is] removed.”). “Rebuttal evidence is evidence given to disprove facts given in evidence by an adverse party.” Apresa v. Montfort Ins. Co., 932 S.W.2d 246, 251 (Tex. App.—El Paso 1996, no writ) (emphasis omitted) (quoting Valley Indus., Inc. v. Cook, 767 S.W.2d 458, 462 (Tex. App.—Dallas 1988, writ denied)); accord In re Bledsoe, 41 S.W.3d 807, 813 (Tex. App.—Fort Worth 2001, orig. proceeding). “Rebuttal testimony can be introduced only after the parties have closed the evidence offered in chief. They must then limit their rebuttal to those issues which were placed in conflict by the adverse party’s evidence during the case in chief.” Greenstein, Logan & Co. v. Burgess Mktg., Inc., 744 S.W.2d 170, 179 (Tex. App.—Waco 1987, writ denied) (citation omitted). CPS called Spencer as its first witness. Spencer testified under questioning by counsel for CPS that CPS removed her four children from another relationship in March 1995 because her home was “filthy nasty” and “not suitable for children to live in.” Counsel for CPS pressed Spencer regarding the conditions of the home: Q: Now, you had disabled the smoke detector in that house; is that correct? A: No, I did not. Q: You weren’t using it to—you hadn’t taken out the battery and used it to burn incense with? A: No, I did not. Q: Had anyone done that? A: No. Q: So the smoke detector was working fine at that time? A: To my knowledge, it was. CPS called Jennifer Tustin during its case-in-chief to testify about the agency’s prior involvement with Spencer’s children. CPS assigned Tustin to Spencer’s case in October 1997 for “family reunification.” Tustin testified that, during the first three months of Tustin’s involvement, Spencer was doing well in her efforts to comply with the service plan established by CPS. According to Tustin: Things appeared to disintegrate probably about approximately three months into my case with Kaltina. She had done really well at the beginning. She was passing her inspections, keeping her house clean, she had gotten a job, you know, things were going along well, and then all of a sudden it just, boom, it went bad and just rapidly disintegrated. Tustin described Spencer’s apartment during the first few months of her involvement in the case as follows: Almost always it was clean or when I would show up, she was in the process of cleaning it. I remember specifically her cleaning behind the stove and doing a lot of things that even I didn’t do at home, and I was very impressed with that. Tustin concluded her testimony on direct examination by stating that she never saw anything that would be hazardous to the children on any of her home visits. During its rebuttal case, CPS presented the testimony of a Waco police sergeant who was dispatched to Spencer’s apartment in March 1995. She found Spencer’s children alone in the apartment. The sergeant described the apartment as “very filthy.” CPS presented seventeen photographs of the apartment which the court admitted over Spencer’s objections. Sixteen of the photographs depict various rooms in the apartment. One depicts a smoke detector with the cover removed and incense inserted, presumably for burning. After the police sergeant, CPS called caseworker Staci Love who was assigned to Spencer’s case in October 1996. Love made a home visit that month and found it to be extremely filthy. The court admitted four photographs taken by Love during the October 1996 visit. Love testified on cross-examination that she noticed a constable serving Spencer with an eviction notice one day when she was driving by Spencer’s apartment after the case had been transferred to Tustin and the family reunification unit. She “stopped to see, since [she] had prior history, what was going on.” She testified that the house was “in total disarray” on that occasion as well. The testimony and photographs offered through the police sergeant and caseworker Love do not qualify as rebuttal evidence because CPS offered them to rebut evidence presented during its own case-in-chief. See Valley Indus., 767 S.W.2d at 462. Moreover, only a single photograph offered through the police sergeant actually rebuts Spencer’s testimony (namely, that her smoke detector had not been altered to burn incense), and none of the photographs or testimony rebuts Tustin’s testimony (namely, that Spencer kept a clean apartment from October 1997 to early 1998). Accordingly, we conclude that the court abused its discretion by admitting this evidence. Thus, Spencer’s fourteenth issue is meritorious. EXPERT TESTIMONY Spencer’s fifteenth issue challenges the expert testimony of Dr. James Shinder offered by CPS on the issues of Spencer’s parenting abilities and whether termination of her parental rights would be in J.B.’s best interest. Specifically, Spencer contends that CPS failed to demonstrate that a parenting assessment Dr. Shinder conducted and from which he drew his conclusions is based on a reliable methodology. Pertinent Authorities Rule of Evidence 702 governs the admissibility of expert testimony. See Tex. R. Evid. 702; Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718 (Tex. 1998); E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 554 (Tex. 1995). Once the opposing party objects to proffered expert testimony, the proponent of the witness’s testimony bears the burden of demonstrating its admissibility. See Guadalupe-Blanco River Auth. v. Kraft, 77 S.W.3d 805, 807 (Tex. 2002); Robinson, 923 S.W.2d at 557. To be admissible, the proponent must demonstrate: (1) that the expert is qualified; and (2) that the expert’s testimony is relevant and reliable. See Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex. 2001); Robinson, 923 S.W.2d at 556; see also Kraft, 77 S.W.3d at 807. These are threshold issues which the trial court determines under Rule of Evidence 104(a) before admitting the testimony. See Tex. R. Evid. 104(a); Gammill, 972 S.W.2d at 718; Robinson, 923 S.W.2d at 556. In this regard, the trial court acts as a “gatekeeper.” See Gammill, 972 S.W.2d at 726; Tarrant Reg’l Water Dist. v. Gragg, 43 S.W.3d 609, 618 (Tex. App.—Waco 2001, pet. granted); see also Judge Harvey Brown, Eight Gates for Expert Witnesses, 36 Hous. L. Rev. 743, 744 (1999). We review the court’s determination under an abuse-of-discretion standard. See Kraft, 77 S.W.3d at 807; Helena Chem. Co., 47 S.W.3d at 499; Robinson, 923 S.W.2d at 558. We examine the record as a whole when we review a preliminary determination under Rule 104(a). See St. Paul Med. Ctr. v. Cecil, 842 S.W.2d 808, 815 (Tex. App.—Dallas 1992, no writ) (citing Moore v. Polish Power, Inc., 720 S.W.2d 183, 192 (Tex. App.—Dallas 1986, writ ref’d n.r.e.)). The Supreme Court has identified a non-exclusive list of factors which can be considered in assessing reliability: (1) the extent to which the theory has been or can be tested; (2) the extent to which the technique relies upon the subjective interpretation of the expert; (3) whether the theory has been subjected to peer review and/or publication; (4) the technique's potential rate of error; (5) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and (6) the non-judicial uses which have been made of the theory or technique. See Gammill, 972 S.W.2d at 720 (citing Robinson, 923 S.W.2d at 557); see also Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 593-95, 113 S. Ct. 2786, 2796-98, 125 L. Ed. 2d 469, 482-84 (1993). By its terms, Rule 702 applies to testimony based on “scientific, technical, or other specialized knowledge.” Tex. R. Evid. 702. Various classifications have arisen concerning the types of testimony governed by the rule. Some cases have distinguished between “scientific” and “non-scientific” expert testimony. See, e.g., Gammill, 972 S.W.2d at 724; Nenno v. State, 970 S.W.2d 549, 560 (Tex. Crim. App. 1998). Some decisions have used the language of the rule itself by referring to some experts as possessing “specialized knowledge.” See, e.g., Kraft, 77 S.W.3d at 807 (quoting Tex. R. Evid. 702). In Nenno, the Court of Criminal Appeals divided “scientific” expertise into two subcategories: “hard” sciences and “soft” sciences. See Nenno, 970 S.W.2d at 560. In Gammill, the Supreme Court noted a potential difference between expert testimony based on methodology and that based on experience. See Gammill, 972 S.W.2d at 722-27. The Court cited the oft-quoted “beekeeper” analogy to illustrate the distinction between methodological and experiential expert testimony: [I]f one wanted to explain to a jury how a bumblebee is able to fly, an aeronautical engineer might be a helpful witness. Since flight principles have some universality, the expert could apply general principles to the case of the bumblebee. Conceivably, even if he had never seen a bumblebee, he still would be qualified to testify, as long as he was familiar with its component parts. On the other hand, if one wanted to prove that bumblebees always take off into the wind, a beekeeper with no scientific training at all would be an acceptable expert witness if a proper foundation were laid for his conclusions. The foundation would not relate to his formal training, but to his firsthand observations. In other words, the beekeeper does not know any more about flight principles than the jurors, but he has seen a lot more bumblebees than they have. Gammill, 972 S.W.2d at 724-25 (quoting Berry v. City of Detroit, 25 F.3d 1342, 1349-50 (6th Cir. 1994)). Nevertheless, the Court made clear that expert testimony cannot always be neatly categorized. That said, it is equally clear that the considerations listed in Daubert and in Robinson for assessing the reliability of scientific evidence cannot always be used with other kinds of expert testimony. To borrow the Berry court’s analogy, a beekeeper need not have published his findings that bees take off into the wind in a journal for peer review, or made an elaborate test of his hypotheses. Observations of enough bees in various circumstances to show a pattern would be enough to support his opinion. But there must be some basis for the opinion offered to show its reliability. Experience alone may provide a sufficient basis for an expert's testimony in some cases, but it cannot do so in every case. A more experienced expert may offer unreliable opinions, and a lesser experienced expert’s opinions may have solid footing. The court in discharging its duty as gatekeeper must determine how the reliability of particular testimony is to be assessed. Gammill, 972 S.W.2d at 726. More recently the Court noted: In Robinson, we identified six nonexclusive factors to determine whether an expert's testimony is reliable and thus admissible. But in Gammill we recognized that the Robinson factors may not apply to certain testimony. In those instances, there still must be some basis for the opinion offered to show its reliability, and, ultimately, the trial court must determine how to assess reliability. Helena Chem. Co., 47 S.W.3d at 499 (citations omitted). From these authorities we conclude that a court should attempt first to apply the Robinson factors to proffered expert testimony. Perhaps only a few of the factors will be useful in a particular case. In other cases, none of the factors will be helpful. In either case, the trial court must exercise its discretion to identify and employ other factors as necessary to assess the reliability of the proffered testimony. See Helena Chem. Co., 47 S.W.3d at 499; Gammill, 972 S.W.2d at 726; Robinson, 923 S.W.2d at 557. The reliability of Dr. Shinder’s testimony is at issue here. For purposes of Rule 702, reliability includes three components: (1) foundational reliability; (2) methodological reliability; and (3) “connective” reliability. See Brown, 36 Hous. L. Rev. at 747-49 (citing Gammill, 972 S.W.2d at 726-28; Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 714 (Tex. 1997); Robinson, 923 S.W.2d at 555-56); see also Helena Chem. Co., 47 S.W.3d at 499. Spencer specifically challenges the reliability of Dr. Shinder’s methodology. The Testimony at Issue Dr. Shinder is a psychologist with nearly thirty years’ experience. He received a masters degree in public health in 1979. His masters research focused on the issues of “abuse and neglect.” He holds memberships with the American Psychological Association, the Texas Psychological Association, and several other unidentified professional groups. His practice focuses “almost exclusively [on] the areas of abuse and neglect and various forensic or criminal or criminally-oriented behaviors.” Dr. Shinder conducted a “parenting assessment” of Spencer almost a year before trial. In his own words, his testimony at trial related “primarily or . . . exclusively in [his] involvement in providing the parenting assessment” and “to [his] observations and conclusions regarding her parenting capabilities.” Dr. Shinder described his methodology as follows: Very briefly, a parenting assessment involves a complete review of all existing records and then questioning of the individual in two areas. You’re looking at the extent of their knowledge about parenting, as well as what action they have taken in regard to areas where they have knowledge of problems with their own children. During a hearing outside the presence of the jury, Dr. Shinder provided the following testimony regarding his methodology: Q: How often have you used this approach in the past? A: It’s frequently used. I did one as recently as last night in the office. It’s a very commonly pursued type of an evaluation. Q: Does this approach generally require a subjective or objective interpretation? A: It’s clearly objective. You’re attempting to determine the extent of someone’s knowledge. “Are you aware of this information or not,” and then you ask them, in fact, have they acted upon that in various ways. Q: Do you feel another person in your field using your same approach would have gotten fairly similar results to what you received? A: Yes. Q: Is your approach or theory generally accepted by the community, the scientific community within which you belong? A: To the best of my knowledge, yes. Q: Do you know by what groups or organizations it is generally accepted or relied upon? A: That’s a difficult question. Groups or organizations. It’s a standard format that’s utilized throughout the field in all areas. Some of the questions that I use I’ve obtained through a questionnaire that was put out by the American Academy of Pediatrics. There is one area where I use a limited number of questions which I don’t know the name of the national group, but it’s a dietary management or dietician’s group or whatever. I think the major areas of questioning are accepted by most national groups. Q: Do you know how long this has been accepted? A: Again some [of] the questions I’m sure have many, many years of acceptance because basically as long as we’ve accepted the need to refrigerate foods or the need to provide children with immunizations, things of that nature. The record does not contain a copy of the questionnaire Dr. Shinder used to conduct Spencer’s parenting assessment. However, his testimony indicates that he asked questions which touched upon the following topics: goals for the children’s future; personal acknowledgment of past child-rearing mistakes; ability to meet the needs of the children; extent of support from relatives and others in child-rearing; “parental insight”; “parental energy”; child-rearing practices; ability to handle crises; interpersonal relations with her children; and food preparation awareness. Dr. Shinder relied on the parenting assessment and Spencer’s “extensive range of personal[ity] problems as well as historical data” to conclude that termination of her parental rights would be in J.B.’s best interest. Analysis We will examine the methodological reliability of Dr. Shinder’s testimony first in light of the Robinson factors. If these factors do not enlighten us in this inquiry, we will then look to other appropriate factors. 1. Extent to Which the Theory Has Been or Can Be Tested According to Dr. Shinder’s testimony, his parenting assessment has never been tested by an independent organization. [T]here are some things that are such obvious realities that they don’t need to be peer reviewed or further researched. The sun will rise tomorrow morning. We don’t need to peer review it and research it. It’s just a reality. A parenting assessment is almost that concrete when you start asking questions about the care of children. Thus, this factor may not apply to the parenting assessment. 2. Extent to Which the Technique Relies upon the Subjective Interpretation of the Expert Dr. Shinder described his parenting assessment as objective in nature. “It’s clearly objective. You’re attempting to determine the extent of someone’s knowledge.” I wouldn’t consider it to be subjective because of the realities of parenting. I will present the information to the average—or the jury. The average juror has dealt with just about every similar consideration in raising their own children. I don’t think it’s subjective. I think it’s objective. Now, there are things that are realities that have to be addressed. Although Dr. Shinder describes the assessment as “clearly objective,” his reluctance to make a copy of the questionnaire available for independent review makes his assessment subjective in practice. 3. Whether the Theory Has Been Subjected to Peer Review and/or Publication Dr. Shinder testified that he acquired some of the questions used in his parenting assessment from a brochure published by the American Academy of Pediatrics. Some of the questions came from an unidentified national dietetic organization. He consulted at least twice with a local pediatrician when he initially developed the parenting assessment. Since that time, he has not sought peer review. According to Dr. Shinder, “To publish would be suicidal because you folks [attorneys] would read every publication and you would use every statement I make against me on the stand, so I can’t publish until I retire.” Dr. Shinder named the Academy of American Pediatricians and an unidentified national dietetic organization as sources for many of the questions used in his parenting assessment. However, he did not produce the brochure purportedly published by the pediatrician’s organization and he could not even name the dietetic organization. His failure to do so and his reluctance to publish his questionnaire weighs against the reliability of his methodology. See Minnesota Mining & Mfg. Co. v. Atterbury, 978 S.W.2d 183, 200 (Tex. App.—Texarkana 1998, pet. denied) (“this Court cannot do th[e] required task if an expert does not cite to and explain precisely the studies that he relies upon”); America W. Airlines, Inc. v. Tope, 935 S.W.2d 908, 919 (Tex. App.—El Paso 1996, no writ) (“Peer review of [expert]’s method was limited, and she offered no examples of publication of her work”); see also Green v. State, 55 S.W.3d 633, 640 (Tex. App.—Tyler 2001, pet. ref’d) (“Though [expert] testified that there had been books and articles published in the field, he did not name any book, article, or publication of any type”). 4. The Technique's Potential Rate of Error Dr. Shinder proffered no testimony regarding the potential rate of error which might occur from the use of his parenting assessment. He did testify that “another person in [his] field using [his] same approach would have gotten fairly similar results.” Again, Dr. Shinder’s failure to cite any particular studies or reports supporting this assertion weighs against the reliability of his methodology. Id. 5. Whether the Underlying Theory or Technique Has Been Generally Accepted as Valid by The Relevant Scientific Community Dr. Shinder testified that “to the best of [his] knowledge” his approach is generally accepted by the scientific community to which he belongs. He could not identify any groups or organizations by which his approach is generally accepted. “That’s a difficult question. Groups or organizations. It’s a standard format that’s utilized throughout the field in all areas.” In a similar vein, Dr. Shinder stated that “[t]here are a number of texts that have been written specific . . . to th[e] topic” of “scientific[ ] confirm[ation] that it’s in the best interest of a child to have that child’s parental rights terminated [sic].” He did not name any of these scientific texts however. As with the preceding two factors, Dr. Shinder’s inability to produce any specific texts or publications supporting his contention that his parenting assessment is generally accepted in the scientific community weighs against the reliability of his methodology. Id. 6. Non-judicial Uses Which Have Been Made of the Theory or Technique Dr. Shinder’s testimony suggests that he employs his parenting assessment almost exclusively in courtroom settings. “I think [the assessment questions have] been analyzed in court many times. . . . [I]f one chooses to do the type of work I do, you’re in court a great deal.” Our research discloses at least six reported cases since 1997 in which CPS offered Dr. Shinder’s testimony in a termination case. The fact that Dr. Shinder employs his parenting assessment almost exclusively in connection with judicial proceedings weighs against the reliability of his methodology. Summary Regarding the Robinson factors, CPS proffered only the testimony of Dr. Shinder to establish the reliability of his methodology. Dr. Shinder offered no specific, independent sources to support the reliability of his methodology. See Kraft, 77 S.W.3d at 808 (“Gholson’s ‘bald assurance’ that he was using the widely accepted approach was not sufficient to demonstrate that his opinion was reliable.”); Gammill, 972 S.W.2d at 727 (“The district court was not required, in Joiner’s words, to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert.”) (quoting General Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S. Ct. 512, 519, 139 L. Ed. 2d 508, 519 (1997)); Robinson, 923 S.W.2d at 559 (expert’s “self-serving statements that his methodology was generally accepted and reasonably relied upon by other experts in the field are not sufficient to establish the reliability of the technique”). Accordingly, we conclude that the court abused its discretion by admitting Dr. Shinder’s testimony. Thus, Spencer’s fifteenth issue is meritorious. We need not address the remainder of Spencer’s issues. STATUTORY DISMISSAL DATE Sections 263.401 and 263.403 of the Family Code provide that a suit in which CPS has been awarded temporary custody must be dismissed no later than eighteen months after the court’s initial order appointing CPS as temporary managing conservator unless the children are returned to their parent or a final order is rendered. See Tex. Fam. Code. Ann. §§ 263.401, 263.403 (Vernon Supp. 2002). That time period expired in this case on December 18, 2000. Thus, any retrial of this cause will necessarily occur beyond the statutorily-mandated dismissal date. The Family Code does not speak to this situation. In 2001, the Legislature added section 263.405 which provides specific timetables and guidelines for an appeal in this type of case. See id. § 263.405 (Vernon Supp. 2002). However, section 263.405 is silent regarding any post-appeal timetables. Therefore, we will set a dismissal date to guide the parties on remand. See Tex. R. App. P. 43.6. It could be argued that the issue of an appropriate post-appeal dismissal date will not be ripe for our review until such time as the trial court dismisses this cause under section 263.401 or renders an “untimely” final order. However, waiting until such time creates a very real potential that J.B. will become the subject of at least two future appellate proceedings: one addressing the propriety of the court acting beyond the statutory dismissal date; see, e.g., In re Ruiz, 16 S.W.3d 921 (Tex. App.—Waco 2000, orig. proceeding [mand. denied]); and a second addressing the merits of the suit. This would run counter to the very purpose of section 263.401 which is “to carry out the recommendation of the Governor's Committee [to Promote Adoption] that parental rights be terminated or families reunified within twelve months.” Ruiz, 16 S.W.3d at 926 (quoting In re Bishop, 8 S.W.3d 412, 417 (Tex. App.—Waco 1999, orig. proceeding [mand. denied])). Accordingly, we set the new dismissal date at 180 days after the issuance of our mandate in this cause. The trial court may not extend this deadline. “If the [trial] court . . . does not render a final order or dismiss the suit on or before the required date for dismissal . . . , the court shall dismiss the suit.” Tex. Fam. Code. Ann. § 263.401(c). We reverse the judgment and remand this cause to the trial court for further proceedings consistent with this opinion. REX D. DAVIS Chief Justice Before Chief Justice Davis, Justice Vance, and Justice Gray (Justice Gray dissenting) Reversed and remanded Opinion delivered and filed November 27, 2002 Publish [CV06]