in the Interest of C. B. & M. B. ( 2019 )

Opinion issued July 2, 2019
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-01086-CV
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IN THE INTEREST OF C. B. & M. B., Children
On Appeal from the 315th District Court
Harris County, Texas
Trial Court Cause No. 2018-04586J
MEMORANDUM OPINION1
Appellant, the Texas Department of Family and Protective Services, has filed
an unopposed motion for voluntary dismissal of its appeal. See TEX. R. APP. P.
10.1(a)(5), 10.3(a)(2), 42.1(a)(1). Appellees do not oppose the motion, but instead
have filed their own “Motion for Judgment, Award of Costs, and for Immediate
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We withdraw our opinion issued May 30, 2019, and issue this corrected one.
Issuance of Mandate.” Appellees request that this Court enter a judgment of
dismissal that assesses all costs against appellant, securing in appellees the relief to
which they are entitled to in the trial court’s amended order for sanctions, and to
issue the mandate immediately. See TEX. R. APP. P. 18.1(c), 42.1(a)(1), (d).
Appellant filed a response in opposition contending that, because the amended
order only allows appellees to recover $20,000 each in appellate attorney’s fees if
they “successfully defend the trial court order in the Court of Appeals,” appellees did
not successfully defend that order because appellant moved to dismiss before any
briefs had been filed. Thus, appellant requests dismissal of this appeal without
awarding appellees their appellate attorney’s fees. See Keith v. Keith, 221 S.W.3d
156, 169 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
After this Court’s May 30, 2019 Memorandum Opinion and Judgment denied
appellees’ motion, in part, with respect to awarding appellees their appellate
attorney’s fees, appellees timely filed this “Motion for Rehearing and for Expedited
Issuance of Corrected Judgment and Mandate.” Appellees contend that this Court
erred by granting DFPS additional relief that it did not request because appellees’
motion for judgment never mentioned requesting appellate attorney’s fees as they
intend to pursue those in an enforcement action before the trial court, which they
assert is the proper venue to enforce the amended order. Thus, appellees request that
this Court issue a corrected opinion, judgment, and mandate that do not refer to
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appellate attorney’s fees. This Court requested and received a response from the
appellant, and appellees filed a reply.
Because appellees’ “Motion for Judgment, Award of Costs, and for
Immediate Issuance of Mandate” only explicitly requested costs be assessed against
appellant, “thereby securing in Appellees the relief to which they are entitled to in
the underlying judgment,” but it did not explicitly request appellate attorney’s fees,
their motion for rehearing is granted. We withdraw the Memorandum Opinion,
Judgment, and Mandate and issue this corrected opinion, judgment, and mandate in
their place. See TEX. R. APP. P. 42.1(c). We grant appellees’ “Motion for Judgment,
Award of Costs, and for Immediate Issuance of Mandate” in part, with respect to
taxing appellate costs against appellant that are assessed by the Clerk of this Court,
and to expedite the mandate. See TEX. R. APP. P. 18.1(c), 42.1(a)(1), (d).
Accordingly, we grant the appellant’s motion, dismiss the appeal, direct the
Clerk of this Court to issue the corrected mandate simultaneously with the corrected
judgment, and order that appellate costs are to be taxed against the appellant. See
TEX. R. APP. P. 18.1(c), 42.1(a)(1), (d), 43.2(f). We dismiss any other pending
motions as moot.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Higley and Hightower.
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