in the Interest of B.P., Jr. a Child ( 2022 )

NUMBER 13-22-00353-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN THE INTEREST OF B.P. JR., A CHILD
On appeal from the County Court at Law No. 5
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Silva
Memorandum Opinion by Justice Longoria
Appellants G.G. (Mother) and B.P. (Father) each appeal from the termination of
their parental rights to their child, B.P. Jr. (Ben), who was one year old at the time of trial. 1
In her appeal, Mother argues that the trial court’s judgment is void because it lost
jurisdiction before the trial commenced. Father, in his appeal, joins Mother’s arguments2
1 To protect the identity of the minor child, we refer to him and his relatives by their initials or an
alias. See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(a).
2 On November 30, 2022, Father filed a notice to this Court that he “joins in” on the jurisdictional
arguments made by Mother in her brief.
and also argues that the evidence is insufficient to support the trial court’s findings that:
(1) there exists a statutory predicate to terminate his parental rights under
§ 161.001(b)(1)(D), (E), (N), (O), and (P) of the Texas Family Code; and (2) it is in the
best interests of the child to terminate Father’s parental rights. See TEX. FAM. CODE ANN.
§ 161.001. The Department of Family and Protective Services (the Department)
concedes that the trial court lost jurisdiction before commencing trial on the merits.
Because we find that the trial court did not have jurisdiction to render its order of parental
termination, we vacate the judgment and dismiss the case.
I. BACKGROUND
On September 4, 2020, the Department filed the underlying parental-rights
termination case. On September 9, 2020, the trial court signed its order appointing the
Department as temporary managing conservator of the child.
On August 20, 2021, the Department filed its “Motion to Retain Suit on Court’s
Docket and Set New Dismissal Date.” On October 13, 2021, the trial court signed its
“Order Retaining Suit on Court’s Docket and Setting Hearing Dates.” The order contained
the following language:
Pursuant to § 263.401(b), Texas Family Code, the Court finds that this
Court has continuing jurisdiction of this suit, and that extraordinary
circumstances necessitate the child remaining in the temporary managing
conservatorship of the Department and that continuing the appointment of
the Department as temporary managing conservator is in the best interest
of the child. An order to retain the case on the Court’s docket should be
granted.
Trial commenced on March 1, 2022, and on March 15, 2022, the trial court signed
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its amended order terminating Mother and Father’s parental rights as to Ben. Both parents
appealed.
II. JURISDICTION
The parties agree that the trial court lost jurisdiction before the trial commenced,
and therefore, the trial court’s order terminating Mother and Father’s parental rights was
void. Specifically, the parties agree that the trial court did not successfully invoke
§ 263.401(b) to extend its jurisdiction. See id. § 263.401(b).
A. Applicable Law
“As a general proposition, before a court may address the merits of any case, the
court must have jurisdiction over the party or the property subject to the suit, jurisdiction
over the subject matter, jurisdiction to enter the particular judgment, and capacity to act
as a court.” State Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994). “A court’s
jurisdiction ‘not only embraces the power to hear, but includes as well the authority to
enter a judgment, and to carry that judgment into execution.’” Allison Publ’ns, LLC v. Doe,
654 S.W.3d 210, 218 (Tex. App.—Fort Worth 2022, no pet. h.) (quoting Morrow v. Corbin,
62 S.W.2d 641, 645 (Tex. 1933)). “Appellate courts are duty-bound to examine issues of
subject matter jurisdiction and may do so sua sponte.” Id. at 219 (citing Meeker v. Tarrant
Cnty. Coll. Dist., 317 S.W.3d 754, 758–59 (Tex. App.—Fort Worth 2010, pet. denied));
see M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004) (per curiam).
Texas Family Code § 263.401(a) “provides that if a trial court fails to commence
the trial on the merits or grant an extension within one year after the trial court appointed
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the Department as temporary managing conservator, the trial court’s jurisdiction
terminates, and the case is automatically dismissed.” In re G.X.H., 627 S.W.3d 288, 296
(Tex. 2021); see also TEX. FAM. CODE ANN. § 263.401(a) (providing that the trial court’s
jurisdiction is terminated on the first Monday after the first anniversary of the date the trial
court rendered a temporary order appointing the department as temporary managing
conservator). However, § 263.401(b) provides that the trial court may extend its
jurisdiction by an additional 180 days if (1) extraordinary circumstances necessitate the
children remaining in the Department’s conservatorship, and (2) continuing the
Department’s appointment is in the children’s best interest. See TEX. FAM. CODE ANN.
§ 263.401(b).
B. Discussion
Here, the trial court rendered an order appointing the Department temporary
managing conservator on September 9, 2020. The first Monday after the anniversary of
that date was September 13, 2021. See id. § 263.401(a). Therefore, unless the trial court
either (1) “commenced the trial on the merits,” or (2) “granted an extension under
Subsection (b),” the court’s jurisdiction over the case would terminate on September 13,
2021, the suit would be “automatically dismissed without a court order” on that same date,
and any orders after that date would be void. See id. § 263.401(a), (b); see also In re
G.X.H., 627 S.W.3d at 296; Dikeman v. Snell, 490 S.W.2d 183, 186–87 (Tex. 1973)
(holding an order entered after the trial court loses jurisdiction is facially void). The trial
court’s order of extension under § 263.401(b) may be made orally on the record or in
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writing, including on the court’s docket sheet. See In re G.X.H., 627 S.W.3d at 297–98;
TEX. FAM. CODE ANN. § 101.026 (“[P]ronouncement may be made orally in the presence
of the court reporter or in writing, including on the court’s docket sheet or by a separate
written instrument.”).
The trial court signed its order granting extension pursuant to § 263.401(b) on
October 13, 2021, exactly thirty days after the trial court’s jurisdiction terminated on
September 13, 2021. See TEX. FAM. CODE ANN. § 263.401(a). The parties do not dispute
that the trial court’s written extension order was untimely. Moreover, we have examined
the record and determined that the trial court failed to grant an extension orally on the
record or in writing prior to September 13, 2021. Cf. In re G.X.H., 627 S.W.3d at 298–99
(holding that the trial court timely granted extension under family code § 263.401 in docket
sheet notes); see also In re O.O., No. 13-21-00411-CV, 2022 WL 1559725, at *7–8 (Tex.
App.—Corpus Christi–Edinburg, May 17, 2022, pet. denied) (mem. op.) (same); In re
J.J.M., No. 13-22-00131-CV, 2022 WL 3257520, at *4–5 (Tex. App.—Corpus Christi–
Edinburg, August 11, 2022, no pet.) (mem. op.) (holding that the trial court maintained
jurisdiction over parental-termination case—even though it signed a written extension
order memorializing its oral grant of extension after the date it would have lost
jurisdiction—because it orally granted extension prior to the date it would have lost
jurisdiction).
Nothing in the record indicates that the trial court held a hearing on the
Department’s motion for extension. Likewise, there is no reporter’s record before us
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demonstrating that the trial court orally granted an extension on the record prior to losing
jurisdiction on September 13, 2021, and the parties do not purport that one exists.
Furthermore, there is no entry from the docket sheet or any other writing indicating that
the trial court granted a timely extension, and the parties point to none. Cf. In re G.X.H.,
627 S.W.3d at 298–99.
The record in this case does not show that the trial court, before the end of the
initial dismissal period on September 13, 2021, commenced trial or granted an extension
under § 263.401(b). See TEX. FAM. CODE ANN. § 263.401(a), (b); see also In re G.X.H.,
627 S.W.3d at 296. Therefore, the trial court’s jurisdiction terminated on September 13,
2021, and the case was automatically dismissed. See TEX. FAM. CODE ANN. § 263.401(a).
The trial court had no jurisdiction over the case when it signed its amended order
terminating Mother and Father’s parental rights as to Ben on March 15, 2022, and that
judgment is void.
When a party appeals a void judgment due to lack of subject-matter jurisdiction,
we have jurisdiction to vacate the judgment and dismiss the case for lack of subject-
matter jurisdiction. See Freedom Commc’ns, Inc. v. Coronado, 372 S.W.3d 621, 623
(Tex. 2012) (“[A]ppellate courts do not have jurisdiction to address the merits of appeals
from void orders or judgments; rather, they have jurisdiction only to determine that the
order or judgment underlying the appeal is void and make appropriate orders based on
that determination.”); see also Pappas v. Shamoun & Norman, LLP, No. 05-16-01405-
CV, 2018 WL 2749691, at *3 (Tex. App.—Dallas May 31, 2018, no pet.) (mem. op.);
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Duggan v. Tanglewood Villa Owners Ass’n, No. 05-16-00300-CV, 2017 WL 2610032, at
*2–3 (Tex. App.—Dallas June 16, 2017, no pet.) (mem. op.).
III. CONCLUSION
Because the trial court lacked subject-matter jurisdiction over this case after
September 13, 2021, we vacate the trial court’s judgment signed March 15, 2022, and we
dismiss the case for lack of subject-matter jurisdiction. See TEX. R. APP. P. 43.2(e).
NORA L. LONGORIA
Justice
Delivered and filed on the
15th day of December, 2022.
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