In re Walker (Tex.App.- Houston [1st Dist.] June 30, 2008) (Jennings)

(termination of parental rights, mandamus against denial of motion to dismiss suit after dismissal
deadline had passed)
GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Terry
Jennings
Before Justices Taft, Jennings and Bland
01-08-00348-CV        In re Kristal Timish Walker a/k/a Kristal Timisha Walker
Appeal from 314th District Court of Harris County
Trial Court Judge: Hon. John Phillips
Dissent by Justice Evelyn Keyes (released July 1, 2008) | Other cases with dissents |

Original Proceeding on Petition for Writ of Mandamus

O P I N I O N

By petition for writ of mandamus, relator, Kristal Timish Walker, also known as Kristal Timisha
Walker, challenges the trial court's order denying her motion to dismiss the suit brought by the real
party in interest, the Texas Department of Family & Protective Services ("TDFPS"), to terminate
Walker's parent-child relationship with her two minor children. (1) In a single issue, Walker contends
that the trial court clearly abused its discretion in not dismissing TDFPS's suit after the statutory
dismissal date had passed (2) and she has no adequate remedy by appeal.

We conditionally grant Walker's petition for writ of mandamus.

Procedural Background

Although the record presented by the relator is scant, the pertinent procedural facts are largely
undisputed. On July 18, 2006, the trial court appointed TDFPS temporary managing conservator of
Walker's two minor children, and, on June 28, 2007, a trial commenced on TDFPS's petition. The
trial concluded on July 10, 2007, and, on this date, the trial court orally rendered an order
terminating Walker's parental rights as well as the parental rights of the fathers. (3) Consistent with
its oral rendition, on August 21, 2007, the trial court signed a decree terminating Walker's and the
fathers' parent-child relationship with the children.

After the trial court orally rendered the termination order, on August 1, 2007, Walker filed a new trial
motion, asserting that the evidence was legally and factually insufficient to support the trial court's
findings on which the trial court based its termination order. (4) On August 28, 2007, the trial court
granted Walker's new trial motion. (8) Thereafter, sometime in March 2008, Walker filed a "motion to
dismiss and for immediate return of children," arguing that because the trial court had granted her
new trial motion and had set aside its termination order, the trial court did not timely render a final
order within the statutory one-year deadline in which the trial court was required to render a final
order. (9) Walker noted that the trial court had reset the termination case for another trial on the
merits on April 22, 2008. Walker further argued that because the statutory deadline had expired
and there was no timely final order, and because the trial court had never extended the statutory
dismissal deadline, the trial court was required to dismiss the case under former section 263.401 of
the Texas Family Code. (10) The trial court denied Walker's motion to dismiss on March 20, 2008,
and Walker filed her petition for writ of mandamus. (11) Walker represented in her briefing, and the
parties agreed at argument, that the trial court had subsequently reset the trial for June 4, 2008.
(12)

Standard of Review

Mandamus is an extraordinary remedy, which is available only when a trial court clearly abuses its
discretion and there is no adequate remedy by appeal. In re McAllen Med. Ctr., Inc., No. 05-0892,
2008 WL 2069837, at *1 (Tex. May 16, 2008); In re Tex. Dep't of Family & Protective Servs., 210
S.W.3d 609, 612 (Tex. 2006); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004).
With respect to a trial court's determination of legal principles, a trial court has no discretion in
determining what the law is or applying the law to facts. In re Prudential, 148 S.W.3d at 135. A trial
court abuses its discretion when it fails to apply the law correctly, so we consider the trial court's
legal ruling. In re Tex. Dep't of Family & Protective Servs., 210 S.W.3d at 612.

Dismissal Under Section 263.401

In her single issue, Walker argues that the trial court clearly abused its discretion in not dismissing
TDFPS's suit because the statutory dismissal date had passed due to the trial court's granting of
Walker's new trial motion. Relying on former sections 263.401 and 263.402 of the Texas Family
Code, Walker asserts that the intent of these statutes is clear and that if, for any reason, including
the granting of new trial motion, a final order is not rendered in a suit to terminate the parent-child
relationship before the statutory dismissal deadline passes, then the proper remedy is for the trial
court to dismiss the suit.

The version of former section 263.401 of the Texas Family Code, applicable to this case, provides,

(a) Unless the court has rendered a final order or granted an extension under Subsection (b), on
the first Monday after the first anniversary of the date the court rendered a temporary order
appointing the department as temporary managing conservator, the court shall dismiss the suit
affecting the parent-child relationship filed by the department that requests termination of the
parent-child relationship or requests that the department be named conservator of the child.


(b) The court may not retain the suit on the court's docket after the time described by Subsection
(a) unless the court finds 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. If the court
makes those findings, the court may retain the suit on the court's docket for a period not to exceed
180 days after the time described by Subsection (a). If the court retains the suit on the court's
docket, the court shall render an order in which the court:


(1) schedules the new date for dismissal of the suit not later than the 180th day after the time
described by Subsection (a);


(2) makes further temporary orders for the safety and welfare of the child as necessary to avoid
further delay in resolving the suit; and


(3) sets a final hearing on a date that allows the court to render a final order before the required
date for dismissal of the suit under this subsection.


(c) If the court grants an extension but does not render a final order or dismiss the suit on or before
the required date for dismissal under Subsection (b), the court shall dismiss the suit. The court may
not grant an additional extension that extends the suit beyond the required date for dismissal under
Subsection (b).


(d) For purposes of this section, a final order is an order that:


(1) requires that a child be returned to the child's parent;


(2) names a relative of the child or another person as the child's managing conservator;


(3) without terminating the parent-child relationship, appoints the department as the managing
conservator of the child; or


(4) terminates the parent-child relationship and appoints a relative of the child, another suitable
person, or the department as managing conservator of the child.


See Act of May 28, 1997, 75th Leg., R.S., ch. 600, § 17, 1997 Tex. Gen. Laws 2108, 2113,
amended by Act of May 22, 2001, 77th Leg., R.S., ch. 1090, § 8, 2001 Tex. Gen. Laws 2395, 2396,
amended by Act of May 29, 2005, 79th Leg., R.S., ch. 268, § 1.40, 2005 Tex. Gen. Laws 621, 636
[referred to herein as Former Tex. Fam. Code Ann. § 263.401] (amended 2007) (current version at
Tex. Fam. Code Ann. § 263.401 (Vernon Supp. 2007). (13)

The former version of section 263.402 of the Texas Family Code, applicable to this case, provides,

(a) The parties to a suit under this chapter may not extend the deadlines set by the court under this
subchapter by agreement or otherwise.


(b) A party to a suit under this chapter who fails to make a timely motion to dismiss the suit or to
make a motion requesting the court to render a final order before the deadline for dismissal under
this subchapter waives the right to object to the court's failure to dismiss the suit. A motion to
dismiss under this subsection is timely if the motion is made before the department has introduced
all of the department's evidence, other than rebuttal evidence, at the trial on the merits.


See Act of May 28, 1997, 75th Leg., R.S., ch. 600, § 17, 1997 Tex. Gen. Laws 2108, 2113,
amended by Act of May 30, 1999, 76th Leg., R.S., ch. 1390, § 48, 1999 Tex. Gen. Laws 4695,
4709, amended by Act of May 22, 2001, 77th Leg., R.S., ch. 1090, § 9, 2001 Tex. Gen. Laws 2395,
2396-97 [referred to herein as Former Tex. Fam. Code Ann. § 263.402] (amended 2007) (current
version at Tex. Fam. Code Ann. § 263.402 (Vernon Supp. 2007)). (14)

In construing these statutes, "our objective is to determine and give effect to the Legislature's
intent." In re Tex. Dep't of Family & Protective Servs., 210 S.W.3d at 612. To determine the
Legislature's intent, we look to the plain language of the statutes and the common meaning of the
words included in the statutes. Id.

Former section 263.401(a) of the Texas Family Code plainly requires a trial court to dismiss a suit
affecting the parent-child relationship filed by TDFPS that requests termination of the parent-child
relationship if a final order has not been rendered by the first Monday after the one-year
anniversary of the date when the trial court appointed the Department temporary managing
conservator. See Former Tex. Fam. Code Ann. § 263.401; see also In re Tex. Dep't of Family &
Protective Servs., 210 S.W.3d at 612.

Here, the trial court appointed TDFPS temporary managing conservator of the children on July 18,
2006. Under former section 263.401(a), the trial court had until the first Monday after the one-year
anniversary of this date to render a final order, or grant an extension, before it was required to
dismiss the suit. See Former Tex. Fam. Code Ann. § 263.401. The parties agree that the trial court,
on July 10, 2007, timely, orally rendered an order terminating Walker's parent-child relationship to
her children. (15)

However, on August 28, 2007, the trial court granted Walker's timely-filed motion for new trial.

In granting the new trial, the trial court set aside the original termination order, thus allowing the
parties to "proceed without prejudice from previous proceedings" because the granting of the new
trial had the "legal effect of vacating the original judgment and returning the case to the trial docket
as though there had been no previous trial or hearing." Markowitz v. Markowitz, 118 S.W.3d 82, 88
(Tex. App.--Houston [14th Dist.] 2003, pet. denied); see also Wilkins v. Methodist Health Care Sys.,
160 S.W.3d 559, 563 (Tex. 2005) (stating that when motion for new trial is granted, "the case shall
be reinstated upon the docket of the trial court and stand for trial the same as though no trial had
been had" and that "the court essentially wipes the slate clean and starts over"); Montemayor v.
Ortiz, 208 S.W.3d 627, 665-66 (Tex. App.--Corpus Christi 2006, pet. denied) ("Granting a new trial
has the legal effect of vacating the original judgment and returning the case to the trial docket as
though there had been no previous trial or hearing."). When the trial court granted Walker's new
trial motion, thereby vacating the termination order as to Walker, it did so outside of the statutory
one-year period in which it was required to render a final order. See Former Tex. Fam. Code Ann. §
263.401.

Although, under former section 263.401(b), the trial court could have retained the suit on its docket
for an additional 180 days after the expiration of the initial one-year period, it could have done so
only upon finding that extraordinary circumstances necessitated the children remaining in the
temporary managing conservatorship of TDFPS and that continuing the appointment of TDFPS as
temporary managing conservator was in the best interest of the children. See id. The trial court, in
order to retain the suit, would also had to have rendered an order in which it scheduled the new
date for dismissal of the suit not later than the 180th day after the expiration of the one-year
deadline, made further temporary orders for the safety and welfare of the child as necessary to
avoid further delay in resolving the suit, and set a final hearing on a date that allowed the court to
render a final order before the required date for dismissal of the suit. See id.

Nothing in the record indicates that the trial court made the requisite findings or rendered the type
of order prescribed under former section 263.401(b) in order to grant an extension to retain the suit
on its docket. (16) Instead, after granting Walker's motion for new trial, the trial court reset the case
for trial on April 22, 2008, and subsequently reset the case for trial on June 4, 2008. (17)

After the trial court granted Walker's new trial motion and vacated the termination order, but before
TDFPS had "introduced all of [its] evidence, other than rebuttal evidence, at the trial on the merits,"
which had been reset as necessitated by the granting of the new trial, Walker filed her motion to
dismiss, asserting that the trial court did not timely render a final order under former section
263.401(a). See Former Tex. Fam. Code Ann. § 263.402.

TDFPS first argues that because Walker did not timely move to dismiss the case, she waived her
right to seek dismissal. TDFPS asserts that, under former section 263.402(b), "a party's complaint
about a court's failure to render a timely order under section 263.401 is waived if the party fails to
file the motion or request before [TDFPS] introduces its evidence and before the dismissal
deadline." TDFPS notes that, here, the trial began on June 28, 2007 and concluded on July 10,
2007, TDFPS introduced all of its evidence at this trial and rested without any objection or request
for dismissal, and Walker did not seek dismissal "before that rendition" and did not file a motion to
render a final order before the dismissal deadline, which passed in July 2007.

The Texas Supreme Court has interpreted former section 263.402(b) as follows,

Section 263.402 describes the vehicles by which a party can obtain a dismissal: a timely motion to
dismiss or a motion requesting the court to render a final order before the deadline for dismissal. A
timely motion to dismiss must be filed before [TDFPS] introduces all of its evidence, other than
rebuttal evidence. A motion requesting the court to render a final order must be made before the
dismissal deadline passes.


In re Tex. Dep't of Family & Protective Servs., 210 S.W.3d at 613 (citations omitted) (emphasis
added). Thus, as noted by the Texas Supreme Court, the two separate procedural vehicles,
appropriately, have different deadlines: (1) a motion to dismiss must be filed before TDFPS
introduces all of its evidence, other than rebuttal evidence, in the trial on the merits, and (2) a
motion requesting the court to render a final order must be made before the deadline for dismissal.
See id.

At oral argument, TDFPS asserted that, under the proper construction of former section
263.402(b), a parent must file either a motion to dismiss or a motion requesting the court to render
a final order before section 263.401(a)'s deadline for dismissal or the parent waives the right to
object to the court's failure to dismiss the suit. Although the first sentence of former section
263.402(b) states that a motion requesting the court to render a final order must be filed before the
dismissal deadline, this language, as illustrated by the second sentence in former section
263.402(b), does not apply to a timely motion to dismiss. See Former Tex. Fam. Code Ann. §
263.402. Rather, a "timely motion to dismiss" is defined in the second sentence of former section
263.402(b) as being made "before the department has introduced all of the department's evidence,
other than rebuttal evidence, at the trial on the merits." See id.

Regarding error preservation, the different vehicles with different deadlines were practical and
made sense. Generally to preserve error or complaint for appellate review, a party must timely make
her complaint known to the trial court to afford it an opportunity to avoid or correct error. Valdez v.
Valdez, 930 S.W.2d 725, 728 (Tex. App.--Houston [1st Dist.] 1996, no writ); see also Tex. R. App. P.
33.1. By its plain language, former section 263.402(b) addressed two scenarios regarding section
263.401(a)'s one-year deadline. First, if the trial on the merits had commenced and concluded
before the deadline, but the trial court had not rendered a final order, a parent had to file a motion
requesting the court to render a final order before the deadline for dismissal. See Former Tex. Fam.
Code Ann. § 263.402. This motion would inform the trial court of the upcoming deadline and allow it
to avoid error by timely rendering such an order. Obviously, a parent would not make a motion
requesting a trial court to render a final order unless the trial court was in a position to do so.
Second, if the trial on the merits had not commenced or had not concluded before section
263.401(a)'s one-year deadline, a parent had to file a motion to dismiss the suit before TDFPS had
introduced all of its evidence, other than rebuttal evidence. See id. This motion would inform the trial
court that the deadline had passed prior to TDFPS's presentation of the evidence.

Here, Walker timely filed her motion to dismiss because, given the procedural posture of the case,
the trial on the merits, which had been set for June 4, 2008, had not commenced and she filed the
motion "before the department has introduced all of the department's evidence, other than rebuttal
evidence, at the trial on the merits." (18) TDFPS's argument that it had already "introduced all of its
evidence" in the previous trial ignores the fact that the granting of the new trial had the "legal effect
of vacating the original judgment and returning the case to the trial docket as though there had
been no previous trial or hearing." Markowitz, 118 S.W.3d at 88 (emphasis added). TDFPS and
Walker, by the granting of the new trial, were permitted to "proceed without prejudice from [the]
previous proceedings." Id.

After granting Walker's new trial motion, the trial court reset the termination suit against Walker for a
new trial (19) and, presumably, TDFPS intends to pursue termination of Walker's parental rights
and introduce evidence at a new trial in support of its petition. In a new trial, TDFPS would not be
restricted to presenting only the evidence it presented at the first trial, which resulted in a
termination order that the trial court subsequently vacated. Of course, if the trial court granted
Walker's new trial motion on the factual insufficiency grounds as alleged in her new trial motion,
TDPS's presentation of the exact same evidence in the exact same manner could prove to be a
futile gesture. TDFPS's assertion that it has already presented its evidence ignores the procedural
posture of the case.

TDFPS also suggested at oral argument that Walker may have waived her right to seek dismissal of
the case by agreeing to continue the case outside of the statutory dismissal deadline. However,
section 263.402(a) specifically provides that "[t]he parties to a suit under this chapter may not
extend the deadlines set by the court under this subchapter by agreement or otherwise." See Tex.
Fam. Code Ann. § 263.402(a). Accordingly, we hold that Walker timely filed her motion to dismiss
TDFPS's suit against her and she did not waive her right to object to the trial court's failure to
dismiss the suit.

TDFPS next argues that Walker's petition for writ of mandamus has no merit because the trial court
did, in fact, render a "final order" as defined in former section 263.401(d). TDFPS contends that it
would be unjust and unreasonable to "unconditionally require courts to dismiss a [TDFPS] suit if a
court ever grants a new trial in [a] case after the original dismissal deadline even if a final order was
rendered before the dismissal deadline." It argues that the unreasonableness of Walker's
interpretation is readily apparent because former section 263.405(d) of the Texas Family Code
requires trial courts, in these types of cases, to automatically consider whether to grant a new trial.
See Act of May 22, 2001, 77th Leg., R.S., ch. 1090, § 9, 2001 Tex. Gen. Laws 2395, 2396-97
(amended 2007) (current version at Tex. Fam. Code Ann. § 263.405(d) (Vernon Supp. 2007))
(stating that trial court shall hold hearing not later than 30th day after date final order is signed to
determine whether a new trial should be granted). TDFPS asserts that this mandate in former
section 263.405(d) "likely occurs after the dismissal deadline passes." (20)

The Texas Supreme Court has recently indicated, in the context of reviewing a trial court's denial of
a motion for new trial after a default judgment, that when a trial court renders a judgment
terminating parental rights, but subsequently grants that parent a new trial, TDFPS's suit to
terminate parental rights remains subject to the original statutory deadlines prescribed in section
263.401. See In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). In In re R.R., the trial court entered a
default judgment terminating the parental rights of a mother who was incarcerated at the time of the
default judgment hearing. Id. at 114. After being notified that her parental rights had been
terminated, the mother informed the trial court that she wanted to appeal and wanted an attorney.
Id. The trial court then appointed the mother an attorney, who filed a motion for new trial on the
mother's behalf. Id. In the motion and attached affidavit, the mother asserted, among other things,
that she did not realize the significance of the termination petition she had received, she had relied
on a child protective services worker to be her representative, and she was willing to go to trial
immediately. Id. The supreme court considered whether the mother's motion was filed at such a time
that granting it would not result in delay or otherwise injure TDFPS. Id. at 116 (citing Craddock v.
Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939)). In regard to this factor, the
court noted,

[The mother's] motion for new trial was timely filed and urged that granting a new trial would not
result in delay or otherwise injure CPS or the children. . . . At the hearing on her motion she testified
that she would be ready to go to trial immediately and would not ask for any continuances. It was
uncontroverted that under the one-year deadline in the Family Code, at the time of the default
judgment hearing CPS had more than two months to terminate Rodgers's parental rights or face
dismissal of the suit, or seek an additional 180-day extension of the deadline.


Id. at 116 (emphasis added) (citations omitted).

In In re R.R., like this case, the trial court had already entered an order terminating the mother's
parental rights. Id. In determining that the granting of the new trial would not result in delay or
otherwise injure TDFPS, the supreme court specifically noted that the mother had agreed to go to
trial immediately and that more than two months remained before the expiration of the statutory
one-year period in which the trial court had to render its final order or, alternatively, that TDFPS
could seek an extension. Id. Thus, the above passage from In re R.R. suggests that, even if a
termination order is rendered in a termination case, if a trial court grants a new trial, the prior
termination order is set aside and the trial court must still render its "final order" within the original
one-year statutory deadline or grant an extension. Id. Simply put, the Texas Supreme Court
analyzed the issue presented in In re R.R. premised on an interpretation that the deadlines
prescribed in section 263.401 are not modified by the granting of a new trial. (21) See id.

This reading of former section 263.401 comports not only with the statute's plain language, but also
with its purpose. As noted by the Austin Court of Appeals, "[t]he time limitations found in chapter
263 of the [F]amily [C]ode were established by the [L]egislature in order to carry out the 1996
recommendation of the Governor's Committee to Promote Adoption that parental rights be
terminated or families reunified within twelve months." In re Ludwig, 150 S.W.3d 819, 822 (Tex.
App.--Austin 2004, orig. proceeding), mand. granted, In re Tex. Dep't of Family & Protective Servs.,
210 S.W.3d 609. To this end, section 263.401 "caution[s] trial courts to set a hearing well in
advance of the dismissal date." In re Ludwig, 150 S.W.3d at 823. Moreover, as did the Austin Court
of Appeals, we also note that we are required to "strictly construe involuntary termination statutes in
favor of the parent." Id. at 822 (citing Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). Accordingly,
we hold that the trial court did not render a final order before the statutory dismissal deadline and
that the trial court clearly abused its discretion in not dismissing TDFPS's suit against Walker.

Adequate Remedy by Appeal

Having held that the trial court clearly abused its discretion in not dismissing TDFPS's suit against
Walker, we must now determine whether Walker has an adequate remedy by appeal. See In re
McAllen Med. Ctr., Inc., 2008 WL 2069837, at *3 ("Whether a clear abuse of discretion can be
adequately remedied by appeal depends on a careful analysis of costs and benefits of interlocutory
review."). In determining whether there is an adequate remedy by appeal, we note that the word
"adequate" "has no comprehensive definition" and demands a "careful balance of jurisprudential
considerations that determine when appellate courts will use original mandamus proceedings to
review the actions of lower courts." In re Tex. Dep't of Family & Protective Servs., 210 S.W.3d at 613
(citing In re Prudential, 148 S.W.3d at 135-36). "[M]andamus will not issue when the law provides
another plain, adequate, and complete remedy." Id.

The supreme court in In re Texas Department of Family & Protective Services addressed the
availability of mandamus relief when a trial court abuses its discretion in not dismissing a case under
former section 263.401. Id. In that case, the supreme court recognized that "justice demands a
speedy resolution in cases involving child custody" and that an "appeal is frequently inadequate to
protect the rights of parents and children," but the supreme court further noted that section 263.405
of the Texas Family Code provided for an accelerated appeal of a final order rendered under that
subchapter and that this section shortened appellate deadlines, expedited the filing of the appellate
record, and required the appellate court to render its final order or judgment with the least possible
delay. Id. (citing Tex. Fam. Code Ann. § 263.405 (Vernon Supp. 2007)). In concluding that the
accelerated appeal provided the parents in the case before it with an adequate remedy, the
supreme court noted that the parents had filed their motions to dismiss during the trial and that
physical possession of the children had already passed to TDFPS. Id. However, the court cautioned
that it was not holding that a party "could never be entitled to mandamus relief" for a trial court's
failure to dismiss under section 263.401, and it specifically noted that an impending transfer of
physical possession of children or an unreasonable delay in entering a final decree might support
mandamus relief. (22) Id. Nevertheless, on the facts before it, the court emphasized that the parents
could have initiated the accelerated appeal "at worst two days after they filed their petitions for writ
of mandamus" and, thus, they had an adequate appellate remedy. Id. at 614.

Here, from the record before us, it appears that TDFPS has served as the temporary managing
conservator of the children since July 18, 2006. As there was no extension granted under former
section 263.401(b), the one-year period prescribed in former section 263.401(a) expired in July
2007. The trial court granted Walker's motion for new trial on August 28, 2007, setting aside its
termination order. The trial court did not, in conjunction with the granting of a new trial, grant an
extension to retain the suit on its docket. In fact, at argument, TDFPS conceded that it did not
request an extension to retain the suit because it operated with the understanding that, even if the
trial court granted Walker's new trial motion, a "final order" had already been entered and the
statutory deadlines in section 263.401 no longer applied. Moreover, even if an extension had been
granted, the dismissal deadline, at the latest, would have expired in January 2008. See Tex. Fam.
Code Ann. § 263.401(b). But sometime after granting Walker's new trial motion the trial court set the
case for a new trial on the merits on April 22, 2008, nine months after the expiration of the actual
one-year deadline. Additionally, as represented by the parties at argument, the trial court then reset
the case for a trial on June 4, 2008, which would have been almost one full year after the dismissal
deadline. In the case before us, unlike in In re Texas Department of Family & Protective Services,
Walker filed her motion to dismiss the termination proceedings in March 2008, before the initial trial
reset date of April 22, 2008 and the subsequent reset date of June 4, 2008. Thus, when Walker
sought relief, she was not in the "midst of trial" with an accelerated appeal just two days away. Also,
in In re Texas Department of Family & Protective Services, the dismissal deadline passed on July
24, 2004 and the trial court terminated the parental rights only a few days later on July 28, 2004.
210 S.W.3d at 611. Here, the dismissal deadline passed in July 2007, approximately one year ago.
(23) Finally, we note that, under TDFPS's interpretation of the statute, which the trial court
apparently accepted, the statutory deadlines enacted by our Legislature to carry out the goal of
terminating parental rights or reunifying families within 12 months no longer applied. As there is no
guarantee that the second trial will result in a promptly rendered final order, an accelerated appeal
simply cannot provide an adequate remedy in this case because the date at which such an appeal
may ripen is uncertain. See In re Tex. Dep't of Family & Protective Services, 210 S.W.3d at 614.

If we accepted TDFPS's interpretation of former section 263.401, when a trial court renders a
termination order, but subsequently sets that order aside, the trial court is no longer governed by
the statutory mandates that the Legislature enacted to ensure speedy resolution of termination
proceedings. Such an interpretation would, under these procedural circumstances, eviscerate the
legislative mandates enacted to encourage a trial court's speedy resolution of termination of
parental rights cases. Accordingly, we hold that Walker does not have an adequate remedy by
appeal to address the trial court's failure to dismiss TDFPS's suit to terminate her parental rights.

Conclusion

Having held that the trial court clearly abused its discretion in not dismissing TDFPS's suit and that
Walker does not have an adequate remedy by appeal, we conditionally grant the writ of mandamus
and direct the trial court to dismiss TDFPS's suit against Walker. A writ from this Court will issue only
if the trial court does not comply.


Terry Jennings

Justice

Panel consists of Justices Taft, Jennings, and Bland.


En banc consideration was requested. See Tex. R. App. P. 41.2(c).


A majority of the en banc court voted to deny en banc consideration. See id.


Justice Keyes, dissenting from denial of en banc consideration. Dissenting opinion to follow.


1.
In the Interest of W, No. 2006-06805J (314th District Court, Harris County, Tex.).

2.
See Act of May 28, 1997, 75th Leg., R.S., ch. 600, § 17, 1997 Tex. Gen. Laws 2108, 2113,
amended by Act of May 22, 2001, 77th Leg., R.S., ch. 1090, § 8, 2001 Tex. Gen. Laws 2395, 2396,
amended by Act of May 29, 2005, 79th Leg., R.S., ch. 268, § 1.40, 2005 Tex. Gen. Laws 621, 636
[referred to herein as Former Tex. Fam. Code Ann. § 263.401] (amended 2007) (current version at
Tex. Fam. Code Ann. § 263.401 (Vernon Supp. 2007)).

3.
Although the parties did not supply this Court with the complete reporter's record from the
underlying proceedings, the parties agree that the trial court orally rendered a termination order on
July 10, 2007, within the statutory one-year deadline prescribed in former section 263.401(a). As
explained below, however, upon the granting of Walker's motion for new trial, this termination order
was vacated.

4.
More specifically, Walker argued that the trial court erred in terminating her parental rights because
there was no clear and convincing evidence that (1) she had engaged in conduct or knowingly
placed the children with persons who had engaged in conduct which endangered the physical or
emotional well being of the children; (2) she had been convicted or placed on community
supervision for being criminally responsible for the death or serious injury of a child or adjudicated
for conduct that caused the death or serious injury of a child and that would constitute the offense
of indecency with a child; (3) (5)

5.
' (6)

6. (7)

7. §§ §

8.
In its order, the trial court stated that it was granting a new trial "as to mother only." The fathers are
not relators in this proceeding.

9.
See Former Tex. Fam. Code Ann. § 263.401.

10.
See id.

11.
After the trial court denied her motion to dismiss, Walker filed her first petition for writ of mandamus
in this Court on April 10, 2008, complaining that the associate judge in her case had abused her
discretion in not dismissing TDFPS's suit to terminate Walker's parental rights. We dismissed that
petition for writ of mandamus because we lacked mandamus jurisdiction over the associate judge. In
re Walker, No. 01-08-00253-CV, 2008 WL 1830400 (Tex. App.--Houston [1st Dist.] Apr. 18, 2008,
orig. proceeding) (citing Tex. Gov't Code Ann. § 22.221(b) (Vernon 2004)). Walker corrected that
error and filed the instant petition for writ of mandamus, which properly identifies the district court
judge as the respondent.

12.
On April 30, 1998, Walker filed her petition for writ of mandamus as well as an emergency motion to
stay the June 4, 2008 trial. The case was submitted to this Court and oral argument was held on
May 21, 1998. On May 29, 2008, we granted Walker's motion to stay the June 4, 2008 trial. See
Tex. R. App. P. 43.6.

13.
The dismissal deadlines in section 263.401 are procedural, not jurisdictional. See In re J.C.J., No.
05-05-01555-CV, 2006 WL 2348987, at *5 n.4 (Tex. App.--Dallas Aug. 15, 2006, no pet.) (mem.
op.); In re R.W.W., No. 12-04-00329-CV, 2005 WL 2155193, at *2 (Tex. App.--Tyler Sept. 7, 2005,
no pet.) (mem. op.); In re Ludwig, 150 S.W.3d 819, 822 (Tex. App.--Austin 2004, orig. proceeding);
In re M.N.G., 147 S.W.3d 521, 527 n.1 (Tex. App.--Fort Worth 2004, pet. denied); In re J.B.W., 99
S.W.3d 218, 224 n.27 (Tex. App.--Fort Worth 2003, pet. denied); In re A.B., 125 S.W.3d 769, 773
n.2 (Tex. App.--Texarkana 2003, pet. denied); In re D.D.M., 116 S.W.3d 224, 229 (Tex. App.--Tyler
2003, no pet.).

14.
The 2007 amendments to sections 263.401 and 263.402 apply only to suits filed on or after the
effective date of the amendments, which is June 15, 2007. See Act of May 27, 2007, 80th Leg.,
R.S., ch. 866, § 6, 2007 Tex. Gen. Laws 1837, 1838. A suit affecting the parent-child relationship
filed before the effective date of the 2007 amendments to these sections is governed by the law in
effect at the time the suit was filed. See id. As this suit was filed prior to the effective date of the
2007 amendments, we apply the former versions of sections 263.401 and 263.402. We note that,
although the prior version of section 263.401 was amended in 2007 in several respects, the most
important distinction between the current version and the prior version is that the current version
requires dismissal "[u]nless the court has commenced the trial on the merits or granted an extension
. . . ." See Tex. Fam. Code Ann. § 263.401 (Vernon Supp. 2007).

15.
Although the trial court signed its termination decree on August 21, 2007, which would have fallen
outside the one-year period prescribed in former section 263.401(a), the trial court's oral rendition
terminating her parent-child relationship on July 10, 2007, but for the subsequent granting of the
new trial, would have provided the required "final order" within the prescribed time period. See Tex.
Fam. Code Ann. § 101.026 (Vernon 2002) ("'Render' means the pronouncement by a judge of the
court's ruling on a matter. The pronouncement 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.").

16. We note that nothing in former section 263.401(b) suggests that an extension allowed under
that section must be granted prior to the expiration of the one-year period prescribed in section
263.401(a). See Former Tex. Fam. Code Ann. § 263.401. Thus, contrary to TDFPS's assertions, a
trial court that grants a new trial outside of the one-year deadline, but before the expiration of the
additional 180-day extension period, could simply, in the same order, grant the new trial and include
the statutory findings and other requirements necessary to grant the extension. See id.

17.
We note that, even if an extension of 180 days had been granted under former section 263.401(b),
the extended period would have expired, at the latest, in January 2008.

18.
The current version of section 263.402(b) provides, "A party to a suit under this chapter who fails to
make a timely motion to dismiss the suit under this subchapter waives the right to object to the
court's failure to dismiss the suit. A motion to dismiss under this subsection is timely if the motion is
made before the trial on the merits commences." Tex. Fam. Code Ann. § 263.402(b) (emphasis
added). Thus, under the current version of section 263.402(b), a party may file only a motion to
dismiss before the trial on the merits commences. See id. As noted above, upon the granting of a
motion for new trial, a "case shall be reinstated upon the docket of the trial court and stand for trial
the same as though no trial had been had" and "the court essentially wipes the slate clean and
starts over." Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 563 (Tex. 2005). Thus, even
applying the current version of section 263.402(b), Walker's motion would still be timely.

19.
Again, we note that we stayed the June 4, 2008 trial.

20.
TDFPS does not explain why this mandate likely occurs outside the statutory deadline.

21.
TDFPS argues that, if we accept Walker's position, "if one of these cases is appealed, and an
appellate court orders a new trial, the trial court would have to immediately dismiss the case on
remand rather than trying the issues that the appellate court evaluated should be retried." However,
nothing in former section 263.401(a) suggests such an interpretation. See Former Tex. Fam. Code
Ann. § 263.401. In fact, former section 263.401(a) concerns only the trial court's one-year deadline
to render a final order; it does not impose appellate court deadlines and does not impose any
further deadlines after appellate review of such a final, appealable order. See id.

22.
The second factor used by the supreme court to conclude that the accelerated appeal provided an
adequate remedy, i.e., the transfer of physical possession of the children to TDFPS, would seem to
exist in many of the cases in which TDFPS is seeking termination. In re Tex. Dep't of Family &
Protective Servs., 210 S.W.3d at 613; see also Tex. Fam. Code Ann. § 263.401(a) (providing that
statutory dismissal deadline only commences once TDFPS is appointed temporary managing
conservator of child). Thus, we do not conclude the fact that TDFPS has already obtained physical
possession of Walker's children precludes the availability of mandamus relief in this case.

23.
TDFPS notes that at least some of the delay can be attributed to continuances that Walker either
requested or agreed to. But, again, section 263.402(a) specifically provides that "[t]he parties to a
suit under this chapter may not extend the deadlines set by the court under this subchapter by
agreement or otherwise." See Tex. Fam. C
DISSENTING OPINION BY JUSTICE KEYES

Original Proceeding on Petition for Writ of Mandamus
DISSENT TO DENIAL OF EN BANC REVIEW

This case concerns the continuing jurisdiction of the trial court over
proceedings to terminate parental rights beyond the statutorydismissal
date provided by section 263.401(a) of the Texas Family Code. Although
this case involves the 2005 version of the statute, the jurisdictional
problem remains under the 2007 version.

The underlying rationale of the panel opinion is that the requirements of
section 263.401 are not jurisdictional, but merely procedural. Therefore,
a trial court that has rendered a timely final order terminating parental
rights may retain the case on its docket beyond the statutory dismissal
date without issuing an order extending its jurisdiction, making the
findings required for issuance of the order, or setting a new dismissal
date, despite clear language to the contrary in section 263.401(b), and it
may entertain a motion for new trial filed after the dismissal date, enter
its timely rendered final order after the dismissal date, grant a new trial
after the dismissal date, vacate its timely final order terminating parental
rights, and set a new trial to take place ten months afterthedismissal
date—all with no order extending its jurisdiction. But it may not hold the
new trial and must grant the parent’s motion to dismiss the termination
proceedings (filed nine months after the dismissal date) based on the
court’s continuing to exercise jurisdiction over the proceedings beyond
the one-year statutory dismissal date in section 263.401(a) without “a
final rendition or order, and without extending the statutory dismissal
date” under section 263.401(b).

I believe the panel’s opinion misconstrues section 263.401 of the
Family Code, confuses and incorrectly decides dispositive jurisdictional
issues, and puts arbitrary power to thwart termination proceedings into
the hands of parents whose rights have been terminated, threatening
the best interest of children and thwarting the purpose of section
263.401. Because the opinion commits this Court in this issue of first
impression to an interpretation and application of the law that has far-
reaching consequences for fundamental due process rights, including
the rights of parents and the best interest of children, I believe this case
meets the criteria for en banc review. See In re M.S., 115 S.W.3d 534,
547 (Tex. 2003) (child custody proceedings touch on constitutional
interests of parents and critical issues affecting welfare of children).1

I would hold that when, as here, a trial court has rendered a timely final
order in termination proceedings,the section263.401(a)dismissal date
for the proceedings continues to run, and the trial court’s power to retain
the case on its docket and its jurisdiction to act beyond the dismissal
date is not extended beyond that date except by order of the court
meeting the criteria of subsection 263.401(b). The trial court can retain
jurisdiction only if all post-judgment proceedings are completed by the
dismissal date or its jurisdiction is extended by a timely order meeting
the criteria of section 263.401(b).
Texas Family Code Section 263.401

As the majority states,a former version of section 263.401 of the Texas
Family

See TEX. R. APP. P. 41.2(c) (“En banc consideration of a case is not
favored and should not be ordered unless necessary to secure or
maintain uniformity of the court’s decisions or unless extraordinary
circumstances require en banc consideration.”)

Code applies to this case. The former version provided, in relevant part:

(a)
Unless the court has rendered a final order or granted an extension
under Subsection (b), on the first Monday after the first anniversary of the
date the court rendered a temporary order appointing the department as
temporary managing conservator, the court shall dismiss the suit
affecting the parent-child relationship filed by the department that
requests termination of the parent-child relationship or requests that the
department be named conservator of the child.

(b)
The court may not retain the suit on the court’s docket after the time
described by Subsection (a) unless the court finds 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. If the court makes those findings, the
court may retain the suit on the court’s docket for a period not to exceed
180 days after the time described by Subsection (a). If the court retains
the suit on the court’s docket, the court shall render an order in which
the court:

(1)
schedules the new date for dismissal of the suit not later than the 180th
day after the time described by Subsection (a);
(2)
makes further temporary orders for the safety and welfare of the child as
necessary to avoid further delay in resolving the suit; and
(3)
sets a final hearing on a date that allows the court to render a final order
before the required date for dismissal of the suit under this subsection.

(c)
If the court grants an extension but does not render a final order or
dismiss the suit on or before the required date for dismissal under
Subsection (b), the court shall dismiss the suit. The court may not grant
anadditionalextension that extends the suit beyond the required date for
dismissal under Subsection (b).

(d)
For purposes of this section, a final order is an order that:

(1)
requires that a child be returned to the child’s parent;
(2)
names a relative of the child or another person as the child’s managing
conservator;
(3)
without terminating the parent-child relationship, appoints the
department as the managing conservator of the child; or
(4)
terminates the parent-child relationship and appoints a relative of the
child, another suitable person, or the department as the managing
conservator of the child.

See Act of May 28, 1997, 75th Leg., R.S., ch. 600, § 17, 1997 Tex. Gen.
Laws 2108,

2113, amended by Act of May 22, 2001, 77th Leg., R.S., ch. 1090, § 8,
2001 Tex.

Gen. Laws 2395, 2396, amended by Act of May 29, 2005, 79th Leg., R.
S., ch. 268,

§ 1.40, 2005 Tex. Gen. Laws 621, 636 [hereinafter FORMER TEX. FAM.
CODE ANN.

§ 263.401] (amended 2007) (current version at TEX. FAM. CODE ANN. §
263.401

(Vernon Supp. 2007).2

The amended version does not alter jurisdictional requirements other
than to provide that the trial court must have commenced the trial on the
merits before the dismissal
Analysis

There is a critical problem with the wording of section 263.401 that
combines

with the facts of this important case to lead the panel, in my view, into a
reading that

contradicts the language and purpose of the statute. Specifically,
section 263.401(a)

does not say what happens to the trial court’s jurisdiction on the
dismissal date if the

court has rendered a final order (as here) but has not entered the order
(as here), so

that post-trial deadlines under section 263.405 have not begun to run,
or if the court

has both rendered and entered a final order, but post-trial deadlines
have not run, so

that section 263.405 (providing for the running of post-trial deadlines
from entry,

rather than rendition of a final order in termination cases) appears to
provide

jurisdiction over ongoing proceedings in the trial court while section
263.401 does

date but that it need not have rendered a final order. Most significantly,
the 2007 amendments: (1) substitute the language, “Unless the court
has commenced the trial on the merits or granted an extension under
Subsection (b) . . . .” for the language in former subsection (a) stating
“Unless the court has rendered a final order or granted an extension
under Subsection (b) . . . .”; (2) add the language “Unless the court has
commenced the trial on the merits” to the beginning of Subsection (b);
(3) substitute “If the court grants an extension but does not commence
the trial on the merits before the required date for dismissal under
Subsection (b), the court shall dismiss the suit” for “If the court grants
an extension but does not render a final order or dismiss the suit on or
before the required date for dismissal under Subsection (b), the court
shall dismiss the suit”; and (4) delete Subsection (d), since “final order”
is no longer a requirement of the trial court’s retaining jurisdiction. TEX.
FAM. CODE ANN. §

263.401 (Vernon’s Supp. 2007) (Emphasis added). Both the current
version and the former version of section 263.401 require, “If the court
retains the suit on the court’s docket, the court shall render an order in
which the court . . . schedules the new date on which the suit will be
dismissed. . . .” Id. § 263.401(b).

not.

I argue that section 263.401(b) requires the party who lost under the
final order to obtain an order extending the trial court’s jurisdiction
before the dismissal date to keep the case on the trial court’s docket
and to provide jurisdiction over the post-trial proceedings. The panel, by
contrast, concludes that section 263.401(b) becomes meaningless
when the trial court continues to act on post-trial matters, and that the
court can continue to exercise plenary jurisdiction over ongoing
proceedings—including both entering and vacating its final order after
the dismissal date and granting a new trial—as long as the parties
agree, but that a parent whose rights were terminated by the timely final
order may obtain dismissal of the proceedings and retain his or her
parental rights by moving to dismiss on the ground that the proceedings
were not timely ended as required by section 263.401(a).

Here, the Department of Family Protective Services (DFPS) removed
Walker’s minor children and initiated termination of parental rights
proceedings on July 28, 2006. Trial commenced on June 28, 2007 and
concluded on July 10, 2007. At the conclusion of the trial, the trial court
orally rendered an order terminating Walker’s and the father’s rights to
the children, making findings of fact that supported the termination of
Walker’s rights and naming DFPS sole managing conservator of the
children. The trial court memorialized its oral order in its docket sheet
and dated it July 10, 2007—eight days short of a year from the date the
termination proceedings were filed by DFPS, and thirteen days short of
the statutory dismissal date under section 263.401(a), July 23, 2007, or
the first Monday after the first anniversary of the filing of the termination
proceedings. See FORMER TEX. FAM. CODE ANN. § 263.401(a). The
July 10 oral order met the definition of “rendition” of a “final order” under
former section 263.401. See FORMER TEX. FAM. CODE ANN. § 263.401
(d) (defining “final order”); TEX. FAM. CODE ANN. § 101.026 (Vernon
2002) (defining rendition as “the pronouncement by a judge of the court’
s ruling on a matter” and stating that “[t]he pronouncement 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”); In re A.
B., 125 S.W.3d 769, 774 (Tex. App.—Texarkana 2003, pet. denied)
(holding that trial court’s oral pronouncement of judgment terminating
mother’s parental rights qualified as final judgment rendered within
twelve months of appointment of Department of Protective and
Regulatory Services as temporary managing conservator and thus
application to terminate mother’s parental rights was not subject to
dismissal). However, the court did not sign and enter the written order
reflecting its July 10, 2007 final order until August 21, 2007—34 days
after the dismissal date and six weeks after its oral rendition of its final
order terminating Walker’s parental rights.

Although former subsection 263.401(b), like the current section,
expressly stated, “The court may not retain the suit on the court’s docket
after the time described by Subsection (a) unless the court finds that
extraordinary circumstances necessitate the child remaining in the
temporary managing conservatorship of the department,” Walker made
no effort to protect her rights before the dismissal date. Knowing that the
judgment had been rendered but had not been signed and entered, she
made no attempt to keep the case on the trial court’s docket by filing a
motion to extend the trial court’s jurisdiction and obtaining the order
required by subsection 263.401(b). See FORMER TEX. FAM. CODE
ANN. § 263.401. Nor did she move for a new trial or file an accelerated
appeal of the final order pursuant to the appropriate section of the
Family Code, section 263.405. See Act of May 22, 2001, 77th Leg., R.S.,
ch. 1090, § 9, 2001 Tex. Gen. Laws 2395, 2397–98 [hereinafter
FORMER TEX. FAM. CODE ANN. § 263.405] (amended 2007) (current
version at TEX. FAM. CODE ANN. § 263.405 (Vernon Supp. 2007).3
Rather, she waited until the dismissal date

Former section 263.405, provided in relevant part:

(a)
An appeal of a final order rendered under this subchapter is governed
by the rules of the supreme court for accelerated appeals in civil cases
and the procedures provided by this section [stating that “in an
accelerated appeal, the notice of appeal must be filed within 20 days
after the judgment or order is signed”]. The appellate court shall render
its final order or judgment with the least possible delay.
(b)
Not later than the 15th day after the date a final order is signed by the
trial judge, a party intending to appeal the order must file with the trial
court a statement of the

had run, and, then, without having filed a motion for extension of the trial
court’s

jurisdiction, moved for a new trial eight days after the dismissal date
and 22 days

after the July 10, 2007 final order terminating her parental rights was
rendered. This

action authorized neither by section 263.402(b) (because she had not
obtained an

order extending the trial court’s jurisdiction to permit signing and entry of
the order

point or points on which the party intends to appeal. The statement may
be combined with a motion for new trial.

(c)
A motion for a new trial, a request for findings of fact and conclusions of
law, or any other post-trial motion in the trial court does not extend the
deadline for filing a notice of appeal under rule 26.1(b), Texas Rules of
Appellate Procedure [i.e., “within 20 days after the judgment or order is
signed”]. . . .

(d)
The trial court shall hold a hearing not later than the 30th day after the
date the final order is signed to determine whether:

(1)
a new trial should be granted;
(2)
a party’s claim of indigence, if any, should be sustained; and
(3)
the appeal is frivolous as provided by Section 13.003(b), Civil Practice
and Remedies Code.

Act of May 22, 2001, 77th Leg., R.S., ch. 1090, § 9, 2001 Tex. Gen. Laws
2395, 2397–98 [hereinafter FORMER TEX. FAM. CODE ANN. § 263.405]
(amended 2007) (current version at TEX. FAM. CODE ANN. § 263.405
(Vernon Supp. 2007)). As the trial court had not signed the final order,
and these deadlines all run from entry of the final order, not from
rendition, Walker could either have filed her motion for new trial
prematurely before the dismissal date or waited until the signed order
was entered. Either way, the trial court would have had no jurisdiction to
rule on the motion unless Walker had moved to retain the case on the
court’s docket and had been granted an order extending the trial court’s
jurisdiction over the proceedings and setting a new dismissal date no
later than six months from the first. See FORMER TEX. FAM. CODE
ANN. § 263.401(b).

and post-trial jurisdiction over the proceedings) nor by section 263.405,
assuming post-trial deadlines ran from the timely unsigned final order
upon which Walker based her motion (which permits filing of a motion
for new trial within 20 days of the signing of a final decree).

Nevertheless,although Walker had taken no timelyaction to protect her
rights, on August 21, 2007, in violation of the plain language of
subsection 263.401(b)—which required the court to remove the case
from its docket on July 23, 2007 in the absence of an order extending its
jurisdiction—the trial court signed a written decree entering its July 10
final order. A week after that, on August 28, the trial court set aside its
timely July 10 termination order and granted Walker’s motion for new
trial, setting a trial date on April 22, 2008—10 months after the
dismissal date.

Seven months later, in March 2008, Walker moved the trial court to
dismiss the proceedings on the ground that the proceedings had gone
beyond the one-year statutory dismissal date without “a final rendition or
order, and without extending the statutory dismissal date.” The trial court
denied the motion, and Walker filed this petition for mandamus ordering
the court to dismiss the proceedings and return the children to her. The
panel agrees with Walker and grants the mandamus on the ground
that, under the former version of section 263.402 of the Family Code,
Walker had the right to move to dismiss the proceedings for lack
ofjurisdiction until the close of DFPS’s evidence in the new trial—
scheduled by the trial court for June 4, 2008, two years from the date
DFPS commenced these proceedings and almost a year after the
dismissal date. It, therefore, dismisses the proceedings against
Walker, requiring DFPS to initiate new termination proceedings with a
wholly new set of dates that will extend the trial court’s jurisdiction over
the proceedings at least until the summer of 2009—threeyearsafter
theywere begun—assumingno extensions are granted or the trial court
does not decide to continue to act after the new dismissal date. In re
Walker, No. 01-08-00348-CV, slip op. at 25–26 (Tex. App.—Houston [1st
Dist.] June 30, 2008, orig. proceeding).

I would hold that all of these actions were taken by the trial court in
response to invited error and in defiance of the statutory mandates and
without jurisdiction. The panel, however, opines,

Although the parties did not supply this court with the reporter’s record
from the trial, the parties agree that the trial court orally rendered a
termination order on July 10, 2007, within the statutory one-year
deadline prescribed in section 263.401(a). As explained below,
however, upon the granting of Walker’s motion for new trial, this
termination order was vacated.

Id. at 2 n.4. The panel thus concludes that the trial court retained
jurisdiction and the power to act after the dismissal date despite the
lack of an order extending its jurisdiction, and its untimely August 28
order vacating its timely rendered July 10

final order controls. It then further concludes,

Walker timely filed her motion to dismiss because, given the procedural
posture of the case, the trial on the merits, which had been set for June
4, 2008, had not commenced and she filed the motion “before the
department has introduced all of the department’s evidence, other than
rebuttal evidence, at the trial on the merits.” TDFPS’s argument that it
had already “introduced all of its evidence” in the previous trial ignores
the fact that thegranting ofthenewtrial had the“legal effectof vacating
theoriginal judgment and returning the case to the trial docket as though
there had been no previous trial or hearing.” TDFPS and Walker, by the
granting of the new trial, were permitted to “proceed without prejudice
from [the] previous proceedings.”

Id. at 15–16 (citations omitted).

Thus, the panel allows Walker to take advantage of her untimely filed
motion

for new trial, the trial court’s untimely order vacating its July 10 final order

terminating her rights, the trial court’s untimely grant of a new trial, and
an untimely

filed motion to dismiss—each action taken without any jurisdiction in
the trial court

under any fair reading of the Family Code—in order to thwart the
provisions of

section 263.401 and regain full rights over the children, whose best
interest is not

considered at all.

Although the panel’s reasoning is not fully explained in the opinion, it

implicitly bases its conclusions not only on its interpretation of section
263.401 as merely procedural, not jurisdictional, but also on section
263.402(b) of the Family Code, which in 2005 provided,

(b) A party to a suit under this chapter who fails to make a timely motion
to dismiss the suit or to make a motion requesting the court to render a
final order before the deadline for dismissal under this subchapter
waives the right to object to the court’s failure to dismiss the suit. A
motion to dismiss under this subsection is timely if the motion is made
before the department has introduced all of the department’s evidence,
other than rebuttal evidence at the trial on the merits.

Act of May 22, 2001, 77th Leg., R.S., ch. 1090, 2001 Tex. Gen. Laws
2395, 2396–97 [hereinafter FORMER TEX. FAM. CODE ANN. § 263.402]
(amended 2007) (current version at TEX. FAM. CODE ANN. § 263.402(b)
(Vernon Supp. 2007)).4 The panel implicitly reads this section as
supplying the jurisdiction over proceedings in the trial court beyond the
dismissal date that section 263.401(b) fails to provide, being merely
procedural. Specifically, the panel reads this section as providing that
since a party who fails to make a timely motion to dismiss or to render a
final order before the dismissal date waives the right to the trial court’s
failure to dismiss the suit, the court may continue to keep the case on
its docket and adjudicate as long as it likes. Only a timely motion to
dismiss terminates the trial court’s jurisdiction over

Subsection 263.402(b) now provides that a party “who fails to make a
timely motion to dismiss the suit under this subchapter waives the right
to object to the court’s failure to dismiss the suit” and that “[a] motion to
dismiss under this subsection is timely if the motion is made before the
trial on the merits commences.” TEX. FAM. CODE ANN. § 263.402(b)
(Vernon Supp. 2007).

ongoing termination proceedings, even after a final order has been
rendered.

Because Walker made no timely motion to dismiss the proceedings,
but, instead, filed a motion for new trial after rendition of the court’s final
order and after the dismissal date, the trial court properly exercised
jurisdiction over the motion for new trial, properly granted it, and properly
vacated its timely rendered final order terminating Walker’s rights and
granted her a new trial ten months after the dismissal date, and that
became the operative final order, although untimely. However, when
Walker moved to dismiss the new proceedings before thenewtrial took
place, on the ground that the trial court had had no jurisdiction since the
dismissal date passed without rendition of final order—the timely order
having been retroactively vacated—and thus had to dismiss the
termination proceedings for failure to render a timely final order.

The panel relies chiefly on two Texas Supreme Court cases and one
Tyler Court of Appeals case—In re Texas Department of Family &
Protective Services, 210 S.W.3d 609 (Tex. 2006), In re R.R., 209 S.W.3d
112 (Tex. 2006), and In the Interest of D.D.M., 116 S.W.3d 224 (Tex. App.
—Tyler 2003, no pet.)—as authority for its holding that the statutory
deadlines and requirements in section 263.401 are not jurisdictional,
but merely procedural and may be disregarded, and that, unlike section
263.401, section 263.402 is jurisdictional and permits a trial court to
retain a case on its docket beyond the dismissal date and to exercise
jurisdiction over termination proceedings, to retroactively vacate a timely
final order and render the proceedings ongoing, and it may continue to
act in the absence of an extension of its jurisdiction unless and until a
party moves to dismiss on the ground that its jurisdiction expired on the
dismissal date without rendition of a final order.

I disagree with the panel’s interpretation of these cases. And I
profoundly disagree with the panel’s holding that section 263.401 is not
jurisdictional, that a trial court may continue to exercise jurisdiction over
termination proceedings in the absence of a timely motion to extend its
jurisdiction under section 263.401(b)—which necessarily implies that
section 263.401(b) is meaningless—and that a party may move to
dismiss the proceedings at any time, so long as it does so before the
deadline for whatever new trial the trial court has ordered. Nor do I
believe that any of the cases upon which the panel relies support its
conclusions.

In re D.D.M.

In In re D.D.M., the court of appeals stated in dictum that the legislature’
s omission of the phrase “may extend the court’s jurisdiction of the suit”
and substitution of the phrase “may retain the suit on the court’s docket
for a period not to exceed 180 days” in its 2001 revision of section
263.401(b) “caused the dismissal deadlines, once held to be
jurisdictional, to become procedural and waivable.” 116

S.W.3d at229 (citing In re J.B.W.,99 S.W.3d 218,224 n.27 (Tex. App.—
Fort Worth 2003, pet. denied). The court stated, “Thus the legislature
removed previous limitations on the trial court’s jurisdiction.” Id. The
court further observed that the Legislature added a provision to section
263.402(b) “that requires a party to make a timely motion to dismiss the
suit or to make a motion requesting the court render a final order before
the dismissal deadline. Otherwise, the party waives his right to
complain that the trial court failed to dismiss the suit.” Id. (citations
omitted).

The Tyler court failed to consider that section 263.401(b)as amended in
2001 expressly instructed the trial court, as it does today, to remove the
case from its docket unless it rendered an order extending the statutory
mandates in section 263.204(b). Nevertheless, the court noted that “[u]
nless a court renders a final order or grants an extension, on the first
Monday after the first anniversary of the date that the Department was
appointed temporary managing conservator, a court must dismiss a
SAPCR filed by the Department requesting termination of the parent-
child relationship.” Id. at 227 n.1 (emphasis added). It then held that the
six-month extension order at issue in that case was properly rendered
within the meaning of section 263.401(b) when it was orally rendered in
open court prior to the dismissal date. Id. at 227, 228. However,
because the trial court’s extension order did not include a
precisedismissaldate, the order “did not comply with the mandatory,
plain language of section 263.401(b), it was invalid.” Id. at 231.
Therefore, it did not extend jurisdiction beyond the dismissal date, and
the parents’motion to dismiss was timely because it was filed before
DFPS introduced all of its evidence at the trial scheduled after the
dismissal date under the invalid extension order. Id. Thus, the trial court
erred in not dismissing the proceedings. Id.

Here, there was no timely filed extension order. And thus, under the
holding in In re D.D.M., the trial court lacked jurisdiction over the
proceedings beyond the dismissal date, regardless of the court’s
pronouncements in dicta. Yet the panel in this case chooses to follow
the dictum, rather than the holding, in In re D.D.M., and rather than
interpreting section263.401(b)accordingto its plain language, or giving it
any meaning at all. Nor do I see how In re D.D.M. supports the panel’s
conclusion that section 263.402’s provision that a party may waive its
right to seek dismissal for failure of the trial court to timely render an
order before the dismissal date confers jurisdiction on the trial court to
continue to exercise jurisdiction in the absence of a mandatory
extension order or permits a party’s waived right to seek dismissal prior
to the conclusion of DFPS’s evidence in a timely trial to be renewed with
respect to a new trial ordered after the dismissal date in the absence of
an order extending the trial court’s jurisdiction.

In re Texas Department of Family & Protective Services

The procedural posture of In re Texas Department of Family and
Protective Services, as a mandamus, is very similar to that in this case—
but with critical distinctions. In that case, DFPS filed proceedings to
terminate parental rights on January 23, 2003 and was named
temporary managing conservator of the children. 210 S.W.3d at 611. In
September, 2003, the court identified the dismissal date for DFPS’s
case as January 26, 2004, and set the case for trial on the merits. Id. In
January, 2004, unlike here, it timely “extended the dismissal date to July
24, 2004, as permitted by section 263.401(b) of the Texas Family Code.”
Id. (Emphasis added.) Trial began on July 19, 2004, but had not
terminated by the dismissal date. Seeing that the dismissal date was
about to run without rendition of a final order, the mother against whom
the suit had been filed and an intervening great-grandmother timely filed
motions to dismiss under section 263.402 on July 22, 2004. Id. They
continued to participate in the trial, however; and, on July 28, 2004—
after the dismissal date—the jury returned a verdict terminating parental
rights and naming DFPS the sole managing conservator of the children.
5 Id. The trial court read the

In re Texas Department of Family and Protective Services was decided
under the same version of section 263.401 as this case. The 2007
version of section 263.401(b) adds a new clause to the beginning of
section 263.401(b), which states that unless the trial on the merits has
commenced, the case must be dismissed from the docket. See TEX.
FAM. CODE ANN. § 263.401(b). However, the extension order is still
required

verdict from the bench and denied the motions to dismiss. Id. On
August 13, 2004, the trial court rendered judgment by signing and filing
the decree of termination. Id. Two days earlier, the mother and
intervenor had filed petitions for mandamus in the appellate court
seeking to compel the trial court to dismiss the case. Id.

The supreme court held that a party could obtain dismissal under
section

263.402 either by filing a motion to dismiss before the Department
introduced all of its evidence or by filing a motion requesting the court to
render a final order before the dismissal date. Id. at 613. Because the
parties’ motions to dismiss met those criteria, the trial court erred in not
dismissing the cases. 6 Id. Finally, the supreme court considered
whether the court of appeals correctly determined that the parties had
no adequate remedy by appeal and were therefore entitled to
mandamus relief. Id. It concluded that because the trial was already
underway when the dismissal deadline passed and physical
possession of the children had passed to DFPS before the mandamus
was filed, an accelerated appeal provided an adequate remedy and that

if the court retains the suit on its docket, as it was under the prior
version of the statute. See id.

In re Texas Department of Family and Protective Services was filed
under the same version of Chapter 263 as the current case. Under the
current version of section 263.402, “[a] motion to dismiss under this
subsection is timely if it is made before the trial on the merits
commences. TEX. FAM. CODE ANN. § 263.402(b) (Vernon Supp. 2007).
The motions to dismiss in In re Texas Department of Family and
Protective Services would not have been timely under the new version.

the court of appeals erred in granting mandamus relief. Id. at 613–14.

In re Department of Family and Protective Services, like In re D.D.M.,
fails to support the panel’s conclusions and holdings in this case. First,
unlike the court in this case, the trial court in In re Department of Family
and Protective Services did not render a final judgment, either oral or
written, before the dismissal date of July 24, 2004;itrenderedand
signedits judgment onAugust 13, 2004, after the dismissal date.
Second, in In re Department of Family and Protective Services, unlike
here, the parties filed timely motions to render judgment before DFPS
had concluded its evidence and timely motions to dismiss before the
dismissal date. The supreme court held that the trial court erred in not
dismissing the proceedings under those circumstances. Here, the trial
court timely rendered a final, appealable order, the dismissal date
expired, and Walker failed to comply with the statutory deadline for
seeking dismissal or an extension of time. Nor did she have grounds
for seeking rendition of judgment, since rendition had already occurred.
Thus, the requirements for obtaining dismissal were not satisfied. See
In re Dep’t of Family and Protective Servs., 210 S.W.3d at 613.

Nevertheless, the panel holds that Walker’s right to move to dismiss
was revived by the trial court’s August 28order vacating itstimelyJuly20
order vacating its timely July 10 final order and that section 263.402
permits her to obtain dismissal on a motion filed before DFPS rests in
the new trial on the ground that the trial court had no jurisdiction beyond
the original July 28 dismissal date because its untimely August 28
order vacated its timely rendered July 10 final order. In re Department of
Family and Protective Services does not support this interpretation of
section

263.402. The only part of In re Department of Family and Protective
Services I would find applicable is the supreme court’s review of the
court of appeals’ grant of mandamus ordering the trial court to dismiss
the proceedings in accordance with the parties’ timely filed motions to
dismiss in that case. The supreme court held that the court of appeals
erred because the mother and intervenor had a right of accelerated
appeal of the trial court’s untimely rendered termination order, which
they failed to exercise, which, and that, the court concluded, “provided an
adequate remedy in this case.” Id. at 614. Likewise, in this case, Walker
had a right under section 263.405 to file an accelerated appeal, with or
without an accelerated motion for new trial. See FORMER TEX. FAM.
CODE ANN. § 263.405. She chose to file a motion for new trial. But she
took none of the statutory steps required to preserve the ongoing
jurisdiction of the trial court over the proceedings beyond the dismissal
date; and she made no

attempt to comply with the statutory requirements and deadlines for
filing a notice of appeal, including filing a statement of points on appeal.
See id. Thus, to the extent the supreme court’s opinion in In re
Department of Family and Protective Services implies that the trial court
in this case retained jurisdiction to sign and enter its judgment after the
dismissal date, it supports the conclusion that Walker could have filed a
statutorily compliant motion for new trial and appeal, but it does not
obviate the necessity of compliance with the statutory mandate of
section 263.401 that the jurisdiction of the trial court over termination
proceedings may be extended only by compliance with section 263.401
(b).

In re R.R.

Finally, again unlike the panel, I do not read In re R.R. as applicable to
this case. In re R.R. was a default judgment case terminating a mother’
s rights to her children. See 209 S.W.3d at 114. The default judgment
was entered on May 20, 2005, less than a year after the first child was
removed (August 31, 2004), and the mother received notice of the
hearing, without knowing its purpose, while in jail. Id. at 113–14. The
mother, Rodgers, promptly sought an appointed attorney and filed a
motion for new trial and statement of points on appeal, two months
before the dismissal date. Id. at 114. The trial court held a hearing on
Rodgers’s motion, at which Rodgers appeared and presented evidence
that her failure to appear was not due to conscious indifference. Id. The
trial court disagreed and denied the new trial, and the court of appeals
affirmed. Id.

The supreme court reversed, and, because the appeal was
accelerated, it considered whether Rodgers had established the other
factors that would justify a new trial, namely whether Rodgers had set
up a meritorious defense and whether her motion was filed at such
time that granting the motion would not result in delay or otherwise
injure the plaintiff, CPS, or the children. 7 Id. at 114–17; see Craddock v.
Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939)
(establishing factors for setting aside default judgment). The supreme
court found that Rodgers had not been consciously indifferent to the
proceedings, had set up a meritorious defense to termination, and had
alleged that granting a new trial would not result in delay or otherwise
injure CPS or the children. Id. at 115–16.

The court observed,“It was uncontroverted that under the one-year
deadline in the Family Code, at the time of the default judgment hearing
CPS had more than two months to terminate Rodgers’s parental rights
or face dismissal of the suit, or seek an additional 180-day extension of
the deadline.” Id. at 116. It continued, “If a defendant alleges that
granting a new trial will not injure the plaintiff, the burden then shifts to
the plaintiff to present proof of injury. Id. Because “CPS presented no
evidence that it, or the children, would be injured by any delay inherent in
granting Rodgers a new trial” and because CPS did not offer evidence
that it would be harmed

Children’s Protective Services, now DFPS. 24

by Rodgers’s inability, as an indigent, to reimburse expenses, the court
held that it failed to carry its burden that it would be harmed by a new
trial. Id. at 116–17.

The supreme court reversed the court of appeals judgment and
remanded the case to the trial court “for further proceedings consistent
with this opinion.” Id. at

117. It did not hold that a parent whose rights have been terminated can
file a motion for new trial after the dismissal date or that the trial court
may rule on such a motion, vacate its timely final order, and grant a new
trial in the absence of a request for an extension of time and a finding
that the extension is justified under section 263.401(b). In my view, the
panel opinion runs directly counter to In re R.R., in which the parent
whose rights were terminated timely sought a new trial before the
dismissal date and timely filed a statement of points on appeal.
Because no new trial was granted, no order extending the trial court’s
jurisdiction was necessary or was sought.

Finally, I strongly disagree with the panel’s conclusion that its “reading
of former section 263.401 comports not only with the statute’s plain
language, but also with its purpose,” namely “‘that parental rights be
terminated or families reunified within twelve months.’” In re Walker, No.
01-08-00348-CV, slip op. at 20 (quoting In re Ludwig, 150 S.W.3d 819,
822 (Tex. App.—Austin 2004, no pet.). I believe that, rather than
furthering the purpose of section 263.401, the panel’s opinion and
holding actively thwarts the purpose of the section and permits lawless
actions by both parties to termination proceedings and courts with
effectively no end in sight and no consideration of the best interest of the
children affected by termination proceedings.
Conclusion

I would hold that the trial court lacked jurisdiction to retain this case on
its docket or to take any action in it after the statutory July 23, 2007
dismissal date of the proceedings initiated by DFPS on July 18, 2006. I
would deny the petition for writ of mandamus filed by relator, Kristal
Timish Walker a/k/a Kristal Timisha Walker, challenging the trial court’s
order denying her March 2008 motion to dismiss the termination
proceedings initiated by the real party in interest, DFPS. I would remand
the case to the trial court with instructions to reinstate its July 21, 2007
final order terminating Walker’s parental rights; to vacate its untimely
August 28, 2007 orders setting aside its July 10, 2007 final order and
granting a new trial; and to dismiss the proceedings for lack of
jurisdiction.

Evelyn V. Keyes Justice

Panel consists of Justices Taft, Jennings, and Bland.En banc
consideration was requested. See TEX. R. APP. P. 41.2(c).A majority of
the en banc court voted to deny en banc consideration. See id.Justice
Keyes, dissenting from denial of en banc review.