Puryear takes a further step in this concurring opinion: http://www.3rdcoa.courts.state.tx.us/opinions/pdfOpinion.asp?OpinionID=14083

and states that in these circumstances, he would require “clear and convincing” proof from the trial court and conduct a “legal and factual sufficiency” review of the trial court’s order.

In my humble opinion, Justice Puryear’s dicta is strongly persuasive and should be followed.

“dicta may be followed if sufficiently persuasive but are not binding.” Central Green Co. v. United States, 531 U.S. 425 (2001), quoting Humphrey’s Executor v. United States, 295 U. S. 602, 627 (1935).

In In re Steed: http://www.3rdcoa.courts.state.tx.us/opinions/HTMLopinion.asp?OpinionID=16865 the panel did, in fact conduct a “legal and factual sufficiency” review of the order when seeking support for the requirements of Tex. Fam. Code 262.201 http://tlo2.tlc.state.tx.us/statutes/docs/FA/content/htm/fa.005.00.000262.00.htm#262.201.00 however they stopped short of declaring that to be the standard of review for mandamus issue to correct the abridgment of these monumental rights pendente lite.

Legal and factual sufficiency was merely used as a tool by the 3rd Court of Appeals to reach a finding of “abuse of discretion”:

“The evidence adduced at the hearing held April 17-18, 2008, was legally and factually insufficient to support the findings required by section 262.201 to maintain custody of Relators’ children with the Department. Consequently, the district court abused its discretion in failing to return the Relators’ children to the Relators.”

The standard of review is a large part of the state’s argument. It isn’t unprecedented to conduct a legal and factual sufficiency review in assessing whether the trial court abused its discretion:

“Under an abuse of discretion standard, legal and factual insufficiency are relevant factors in assessing whether the district court abused its discretion.” See, e.g., Norris v. Norris, 56 S.W.3d 333, 338 (Tex. App.–El Paso 2001, no pet.).