non-exhaustive factors in Texas

2026Best Interest Finding Our best interest analysis is guided by consideration of the non-exhaustive factors set in Holley v. Adams, 544 S.W.2d 367 (Tex. 1976).

2024M. v. Tex. Dep’t of Family & Protective Services, 681 S.W.3d 465 , 474 (Tex. App.—Austin 2023, no pet.) (“Just as in a termination determination, best interest determinations in the conservatorship context are reviewed in connection with the non-exhaustive factors set out in Holley v. Adams, 544 S.W.2d 367 (Tex. 1976).”).

2010See 202 S.W.3d at 162 .

2010See Evans , 202 S.W.3d at 162 .

2023The Department is not required to prove all of these factors, and the absence of evidence of some of these factors would not preclude a finding that termination is in the child’s best interest, “particularly if the evidence were undisputed that the parental relationship endangered the safety of the child.” In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). 13 While proof concerning the statutory predicates under Section 161.001(b)(1) does not relieve the Department of having to prove that termination is in the best interest of the children, the “same evidence may be probative of both issues.” V.P., 202

2023C.H., 89 S.W.3d at 27 .

2025Appellate courts conduct a Rule 403 analysis by reviewing the following non-exhaustive factors: “(1) the probative value of the evidence; (2) the potential to impress the jury in some irrational, yet indelible, way; (3) the time needed to develop the evidence; (4) the proponent’s need for the evidence.” Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim.

2023Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim.

2011See Gregory v. State, 159 S.W.3d 254, 260 (Tex. App. – Beaumont 2005, pet. ref’d); Nguyen v. State, 54 S.W.3d 49, 53 (Tex. App. – Texarkana 2001, pet. ref’d); Hurtado v. State, 881 S.W.2d 738 , 743 n.1 (Tex. App. – Houston [1st Dist.] 1994, pet. ref’d).

2011See Gregory v. State , 159 S.W.3d 254, 260 (Tex. App. - Beaumont 2005, pet. ref'd); Nguyen v. State , 54 S.W.3d 49, 53 (Tex. App. - Texarkana 2001, pet. ref'd); Hurtado v. State , 881 S.W.2d 738 , 743 n.1 (Tex. App. - Houston [1st Dist.] 1994, pet. ref'd).

2011See Gregory v. State, 159 S.W.3d 254, 260 (Tex. App. – Beaumont 2005, pet. ref’d); Nguyen v. State, 54 S.W.3d 49, 53 (Tex. App. – Texarkana 2001, pet. ref’d); Hurtado v. State, 881 S.W.2d 738 , 743 n.1 (Tex. App. – Houston [1st Dist.] 1994, pet. ref’d).

2011See Gregory v. State , 159 S.W.3d 254, 260 (Tex. App. - Beaumont 2005, pet. ref'd); Nguyen v. State , 54 S.W.3d 49, 53 (Tex. App. - Texarkana 2001, pet. ref'd); Hurtado v. State , 881 S.W.2d 738 , 743 n.1 (Tex. App. - Houston [1st Dist.] 1994, pet. ref'd).

2017See Holley v. Adams , 544 S.W.2d 367 , 371-72 (Tex. 1976) ; In re S.T. , 508 S.W.3d 482 , 490 (Tex. App.-Fort Worth 2015, no pet.) ; In re L.M. , 104 S.W.3d 642 , 647 (Tex. App.-Houston [1st Dist.] 2003, no pet.).

2017See Holley v. Adams, 544 S.W.2d 367 , 371–72 (Tex. 1976); In re S.T., 508 S.W.3d 482, 490 (Tex. App.— Fort Worth 2015, no pet.); In re L.M., 104 S.W.3d 642 , 647 (Tex. App.—Houston [1st Dist.] 2003, no pet.). 35 named his managing conservator, and it imposes a heavy burden on a non-parent to rebut this presumption.21 TEX.

2024See In re K.M.L., 443 S.W.3d 101, 116 (Tex. 2014); see also Gillespie, 644 S.W.2d at 451 (stating trial court has “wide latitude” in determining best interest).

2024See In re K.M.L., 443 S.W.3d 101, 116 (Tex. 2014); see also Gillespie, 644 S.W.2d at 451 (stating trial court has “wide latitude” in determining best interest).

2022D.J. v. Texas Dep’t of Fam. & Protective Servs., No. 03-20-00323-CV, 2020 WL 7395924 , at *5 (Tex. App.—Austin Dec. 17, 2020, pet. denied) (mem. op.); In re A.M., 495 S.W.3d 573, 580 (Tex. App.—Houston [1st Dist.] 2016, pet. denied). 17 To determine whether termination is in a child’s best interest, we consider the non-exhaustive factors set out in Holley v. Adams: (1) the child’s wishes; (2) the child’s present and future emotional and physical needs; (3) any emotional and physical danger to the child, now and in the future; (4) the parenting abilities of the person seeking custody; (5) the p

2021The non-exhaustive factors include “physical mistreatment, use of violence, threats, threats of violence, promises or inducements, deception or trickery, and the physical and mental condition and capacity of the defendant within the totality of the circumstances.” Id. at 460 n.26 (quoting United States v. Pena, 143 F.3d 1363, 1367 (10th Cir. 1998)).

2021“An officer’s request for consent to search does not taint an otherwise consensual encounter as long as the police do not convey a message that compliance with their request is required.” Id. 5 Crim.

2014Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.1976); see also In re Doe 2, 19 S.W.3d 278 , 282 n. 20 (Tex.2000) (recognizing that intermediate appellate courts use Holley factors to ascertain best interest of child in conservatorship cases).

2013To put it another way, the prior violation that has been carried on without objection, if insignificant or insubstantial when compared to the proposed or new use, will not support a waiver of the new and greater violation. 679 S.W.2d 956, 958 (Tex. 1984); see Cox v. Melson-Fulsom, 956 S.W.2d 791, 794 (Tex. App.—Austin 1997, no pet.) (“[T]o carry the burden of demonstrating waiver of restrictive covenants, a party must prove that “the violations that existed were so extensive and material as to reasonably lead to the conclusion that the restrictions had been abandoned.”); see also Musgrove, 200

2013And “[a] court may refuse to enforce a restrictive covenant because of the acquiescence of the lot owners in such substantial violations within the restricted area as to amount to an abandonment of the covenant or a waiver of the right to enforce it.” Cowling v. Colligan, 158 Tex. 458 , 461–62, 312 S.W.2d 943, 945 (1958).

2013And “[a] court may refuse to enforce a restrictive covenant because of the acquiescence of the lot owners in such substantial violations within the restricted area as to amount to an abandonment of the covenant or a waiver of the right to enforce it.” Cowling v. Colligan, 158 Tex. 458 , 461–62, 312 S.W.2d 943, 945 (1958).

2013To put it another way, the prior violation that has been carried on without objection, if insignificant or insubstantial when compared to the proposed or new use, will not support a waiver of the new and greater violation. 679 S.W.2d 956, 958 (Tex. 1984); see Cox v. Melson-Fulsom, 956 S.W.2d 791, 794 (Tex. App.—Austin 1997, no pet.) (“[T]o carry the burden of demonstrating waiver of restrictive covenants, a party must prove that “the violations that existed were so extensive and material as to reasonably lead to the conclusion that the restrictions had been abandoned.”); see also Musgrove, 200

2012Corp., 945 S.W.2d 812, 818 (Tex.1997).

2012Corp., 945 S.W.2d 812, 818 (Tex. 1997).