in the Interest of D. R. S. ( 2004 )

Affirmed as Modified and Majority and Concurring Opinions filed May 20, 2004

Affirmed as Modified and Majority and Concurring Opinions filed May 20, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-02-01134-CV

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IN THE INTEREST OF D.R.S.

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On Appeal from the County Court at Law No. 1

Brazos County, Texas

Trial Court Cause No. 51662‑CV

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C O N C U R R I N G O P I N I O N

I write separately to address the court=s disposition of Simmons=s first point of error in which she complains that the trial court=s alleged error in issuing a temporary restraining order and a temporary order appointing the Lees temporary sole managing conservators during the pendency of the suit allegedly prejudiced her attempt to be appointed sole managing conservator.  As the majority correctly points out, temporary orders are not subject to interlocutory appeal.  See Tex. Fam. Code ' 105.001(e) (stating no interlocutory appeals may be taken from temporary orders); Lesikar v. Rappeport, 899 S.W.2d 654, 655 (Tex. 1995) (stating no interlocutory appeals may be taken from temporary restraining orders). Furthermore, because these temporary orders are no longer in effect, ordinarily this court would be incapable of granting relief, and Simmons=s first point would be moot.  See Speed v. Keys, 109 S.W.2d 967, 967 (1937) (temporary restraining order which expired by its own terms rendered appeal therefrom moot); Hermann Hosp. v. Tran, 730 S.W.2d 56, 57 (Tex. App.CHouston [14th Dist.] 1987, no writ) (all issues on appeal regarding temporary restraining order were rendered moot by expiration of the order). The issue then arises as to whether the collateral-consequences exception to the mootness doctrine applies. 

Texas courts have recognized the collateral-consequences exception and have applied  it  when Aprejudicial events have occurred >whose effects will continue to stigmatize helpless or hated individuals long after the unconstitutional judgment had ceased to operate.=@ General Land Office v. OXY U.S.A., Inc., 789 S.W.2d 569, 571 (Tex.1990) (quoting Spring Branch I.S.D. v. Reynolds, 764 S.W.2d 16, 18 (Tex. App.CHouston [1st Dist.] 1988, no writ)).  Recognizing the limited nature of this exception to the mootness doctrine, Texas courts have invoked it in very limited circumstances.  See, e.g., State v. Lodge, 608 S.W.2d 910, 912 (Tex. 1980) (concluding collateral‑consequences exception applies to involuntary commitment to a mental hospital); Carrillo v. State, 480 S.W.2d 612, 617 (Tex. 1972) (applying collateral‑consequences exception to adjudication as a juvenile delinquent because this type of adjudication was found to have Adeleterious collateral effects and legal consequences@); In re Cummings, 13 S.W.3d 472, 475 (Tex. App.CCorpus Christi 2000, no pet.) (applying collateral‑consequences exception to protective order because being the subject of such an order carries a stigma and legal repercussions).

Although the majority correctly notes that Simmons has not cited any cases applying the collateral-consequences exception in a child-custody context, the Thirteenth Court of Appeals recently addressed the issue and declined to apply the exception in this context.  See Ngo v. Ngo, C S.W.3d C, C 2003 WL 21982208, at *2 (Tex. App.CCorpus Christi Aug. 21, 2003, no pet.).  The Ngo court reasoned that a custody order is not like one for involuntary commitment or juvenile delinquency, which may stigmatize if not addressed by appeal, and that because the case presented neither helpless nor hated individuals facing some stigma, such as one wrongfully convicted of a crime, the collateral‑consequences exception was not applicable.  See Ngo, C S.W.3d at C, 2003 WL 21982208, at *2.  The same logic applies here.

Though the court reaches the right result in this case, the majority incorrectly includes in its mootness analysis a discussion of whether the record shows that the alleged error in granting these temporary orders harmed Simmons=s ability to obtain an order appointing her as sole managing conservator. That issue has no place in the analysis because in determining whether an issue is moot, a court should not rule on the merits.  See Ngo, C S.W.3d at C, 2003 WL 21982208, at *3.  Nonetheless, it is correct that, even if Simmons=s first point were not moot, she would not prevail because the record does not show that the alleged error in granting the temporary orders probably caused the rendition of an improper judgment.  See Tex. R. App. P. 44.1(a). 

For these reasons, I respectfully concur in the judgment as to Simmons=s first point. I join the majority opinion as to its analysis of the remaining points.

/s/        Kem Thompson Frost

Justice

Judgment rendered and Majority and Concurring Opinions filed May 20, 2004.

Panel consists of Justices Edelman, Frost, and Seymore. (Edelman, J., majority.)