Classic Century, Inc. F/K/A Classic Century Homes, Inc. v. Deer Creek Estates, Inc., Darsona Enterprises D/B/A Alliance Homes, and Kenmark Homes, L.P., a Texas Limited Partnership

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 2-06-467-CV

IN THE INTEREST OF A.A.,
A MINOR CHILD

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FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

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MEMORANDUM OPINION 1 ON REHEARING

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On July 10, 2008, this Court issued an opinion dismissing the appeal.

Appellant the Office of the Attorney General filed a motion for rehearing. After

due consideration, we deny the Office of the Attorney General’s motion for

rehearing, but we withdraw our opinion and judgment dated July 10, 2008, and

substitute the following. Our disposition of this case remains unchanged.

I. INTRODUCTION

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… See T EX. R. A PP. P. 47.4.
 The primary issue we address in this appeal is whether the Office of the

Attorney General was a party in the underlying suit. The underlying suit was

initiated by the Texas Department of Family and Protective Services (“TDFPS”)

to obtain temporary managing conservatorship of baby A.A. For the reasons

set forth below, we sustain the first issue presented by the Office of the

Attorney General, contending that it was not a party in the trial court, and

consequently, because a nonparty has no standing to pursue an appeal, we

dismiss this appeal.

II. F ACTUAL AND P ROCEDURAL B ACKGROUND

This convoluted tale began in November 2005 when TDFPS filed a

petition seeking temporary managing conservatorship of A.A., the daughter of

then seventeen-year-old Appellee A.B. (referred to hereafter as A.B. or mother).

TDFPS’s petition specifically sought temporary and, ultimately, permanent

payment of child support by A.A.’s mother and father. In paragraph four of the

petition, TDFPS alleged that

[t]he Attorney General’s office will be served by mail under Rule
21a, Texas Rules of Civil Procedure at P.O. Box 12017, Austin,
Texas 78711-2017, pursuant to § 102.009(d), Texas Family Code.

The trial court granted TDFPS’s emergency petition and eleven days later

conducted an adversary hearing. At the conclusion of that hearing, the trial

court issued temporary orders that instructed A.A.’s mother and father to pay

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child support and to make such payments “through the Child Support Division

of the Office of the Texas Child Support Disbursement Unit” and provided an

address.

Unbeknownst at this point to the parties, however, a typographical

mistake existed in the trial court’s temporary order, and A.A.’s mother and

father were ordered to begin making child support payments in January 2005

(eleven months before A.A. was born) instead of in January 2006.

Subsequently, mother’s counsel filed a motion—agreed to by counsel for

TDFPS—to suspend mother’s child support payments because seventeen-year-

old mother was herself under the managing conservatorship of TDFPS and was

still attending high school. The trial court and counsel for both mother and

TDFPS signed an agreed order suspending mother’s child support obligations.

Approximately three months later, mother received a bill from the Office

of the Attorney General for past due child support payments, plus interest. The

bill was apparently generated based on the trial court’s initial temporary order

that contained the typographical error because the bill reflected that mother

owed past due child support for 2005—before A.A. was even born.

As a result of receiving this bill for “past due” child support and interest

accruing before baby A.A.’s birth, mother filed a motion to amend the

temporary order on the ground that the trial court had mistakenly set the

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support payments to begin in January 2005 prior to A.A.’s birth. Mother

sought to amend the order to reflect a January 1, 2006 start date for child

support payments. The trial court granted this motion on April 19, 2006, and

ordered that mother’s and father’s child support obligation commenced January

1, 2006 (as opposed to 2005), and that “the Texas Office of the Attorney

General correct its records to reflect the amended orders and cancel any arrears

alleged to be due for the calendar year 2005.” That same day, counsel for

mother faxed a copy of the trial court’s amended order to Angela Ware at the

Office of the Attorney General’s Wichita Falls Child Support Unit.

Approximately one month later, on May 16, 2006, TDFPS filed a

Permanency Plan and Progress Report stating that the goal of the plan was

family reunification. TDFPS recommended that the suit be continued as

opposed to dismissed but also set a May 19, 2006 (three days after TDFPS

filed the permanency plan) date for achievement of the permanency plan. The

trial court held—as TDFPS requested—a May 19, 2006 hearing, adopted the

provisions of TDFPS’s permanency plan, and ordered that TDFPS’s suit be

dismissed.

On May 21, 2006, the Office of the Attorney General sent mother

another bill for past due child support, seeking the same payment it had

previously sought based on the prior temporary order containing the

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typographical error. The document mailed by the Office of the Attorney

General was titled “Notice of Intent to Report” and informed mother that “[o]ur

office intends to report” mother’s unpaid child support (for the year of 2005

before A.A. was born) “to credit reporting agencies” and that “[p]ayment in full

will not remove the history of this debt from your record.” The bill/notice of

intent to report instructs mother that “[i]f the amount of support reported by

the Office of the Attorney General is not correct, please contact the child

support office listed below.” The bill/notice of intent to report lists the

following as the child support office for mother to contact:

CHILD SUPPORT UNIT 0104E
813 8 th Street, 3 rd FLR
PO Box 5067
WICHITA FALLS, TX 76307-9971
(940)322-2557

The record reflects that this is the same office to which mother’s counsel

previously faxed a copy of the amended temporary order.

In light of the continued efforts of the Office of the Attorney General to

collect allegedly past due child support from mother, four days after receipt of

the bill/notice of intent to report, mother filed a motion to enforce the amended

temporary order that had ordered mother’s and father’s child support obligation

to commence January 1, 2006 (as opposed to 2005) and that had ordered “the

Texas Office of the Attorney General [to] correct its records to reflect the

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amended orders and cancel any arrears alleged to be due for the calendar year

2005.” Mother mailed via certified mail return receipt requested the motion to

enforce to the Office of the Attorney General at the Wichita Falls address set

forth above and provided in the bill/notice of intent to report sent to mother.

On June 12, 2006, the trial court conducted a hearing on mother’s

motion to enforce. The Office of the Attorney General did not appear at the

hearing. The trial court signed a June 13, 2006 “Order on Motion to Enforce”

granting mother’s motion to enforce and ordering “the Texas Office of the

Attorney General [to] correct its records to reflect the amended orders and

cancel any arrears alleged to be due for the calendar year 2005 from either

parent . . . no later than ten (10) days from the date of this Order,” to “issue

written confirmation of the cancellation” to mother and father, and to

“compensate [mother’s attorney] in the amount of $1000.00 for her attorney

fees.” The Attorney General timely filed a notice of appeal.

III. T HE O FFICE OF THE A TTORNEY G ENERAL IS A N ONPARTY

In its first issue, the Office of the Attorney General contends that the trial

court did not have jurisdiction over it because it was not a party to the suit.

Mother claims, however, that the Office of the Attorney General was properly

before the trial court because Texas Family Code section 102.009 provides that

upon the filing of a petition in an original suit that requests the establishment

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of a support right assigned to the Attorney General, as the Title IV-D agency,2

“notice shall be given to the Title IV-D agency in a manner provided by Rule

21(a), Texas Rules of Civil Procedure.” See T EX. F AM. C ODE A NN . §

102.009(d).3 And local rules for Wichita County require that each order

providing for child support shall include, and be deemed to include, an

application for child support services provided by the Attorney General.

W ICHITA C OUNTY (T EX.) D IST. C T. L OC. R. 5.4(a). Thus, mother argues that

TDFPS was required to provide the Office of the Attorney General with “notice”

of its suit seeking temporary managing conservatorship of baby A.A. and that

this notice properly placed the Office of the Attorney General before the trial

court.4

2
… See T EX. F AM. C ODE A NN. § 231.001 (Vernon 2002) (establishing the
Attorney General as the Title IV-D agency).
3
… The Attorney General is also entitled to receive service of citation “if
the petition requests the termination of the parent-child relationship and support
rights have been assigned to the [Attorney General] under Chapter 231.” T EX.
F AM. C ODE A NN. § 102.009(a)(11) (Vernon Supp. 2007). TDFPS’s petition here
did not seek termination, so the Attorney General was not entitled to service
under Texas Family Code section 102.009(a)(11).
4
… The record reflects that TDFPS provided the required notice to the
Office of the Attorney General. The initial April 8, 2006 bill sent by the
Attorney General’s Office to mother indicates in the upper right-hand corner of
the bill that it is for “Cause Number: 10758JRC.” That is the cause number
assigned to TDFPS’s original petition in its suit for temporary managing
conservatorship of baby A.A. The ability of the Office of the Attorney General
to insert mother into its Title IV-D agency system for collection of child support

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 As the Office of the Attorney General points out, neither TDFPS nor

A.A.’s mother or father sued the Office of the Attorney General or asserted any

claims against it (other than the subsequently filed motion to enforce). Accord

Reynolds v. Haws, 741 S.W.2d 582, 588–89 (Tex. App.—Fort Worth 1987,

writ denied) (stating that “[w]e hold that an entity is not a party to a lawsuit

without being so named”). And other statutes, similar to family code section

102.009(d), that require notice of a suit to be given to the Office of the

Attorney General by providing a copy of the petition have not been construed

to automatically make the Office of the Attorney General a “party” to every

such suit. See, e.g., T EX. C IV. P RAC. & R EM. C ODE A NN. § 37.006(b) (Vernon

1997) (requiring that in a declaratory relief proceeding in which a statute is

alleged to be unconstitutional, the Attorney General be served with a copy of

the proceeding); T EX. P ROP. C ODE A NN. § 123.004(a) (Vernon 2007) (providing

that a judgment in a proceeding involving a charitable trust is voidable if the

Attorney General is not given notice of the proceeding). Instead, once the

Office of the Attorney General is notified of such a suit, it may choose to

intervene and participate or to not do so. See, e.g., City of San Antonio v.

and to generate a bill with the present cause number on it indicates that the
Office of the Attorney General was properly served or, at least, received a copy
of the initial temporary order and was fully aware of the suit; without notice of
the suit, the Attorney General’s office could not have taken this action.

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Summerglen Prop. Owners Ass'n Inc., 185 S.W .3d 74, 87 (Tex. App.—San

Antonio 2005, pet. denied) (recognizing counterclaim for a declaratory

judgment that H.B. 585 was unconstitutional could not be set or ruled on

because Attorney General had not yet been permitted the required forty-five

days’ notice to intervene); State v. Fernandez, 159 S.W.3d 678, 688 (Tex.

App.—Corpus Christi 2004, no pet.) (recognizing Attorney General may

intervene in a proceeding involving a charitable trust); Lone Starr Multi

Theatres, Inc. v. State, 922 S.W.2d 295, 298 (Tex. App.—Austin 1996, no

writ) (holding fact that the Attorney General must be given notice of a suit to

declare a statute unconstitutional does not suggest that the Attorney General

is the proper party to sue in an action for declaratory or injunctive relief).

Additionally, the Office of the Attorney General was not, under rule 39

of the rules of civil procedure, a “person needed for just adjudication” in

TDFPS’s filed suit for temporary managing conservatorship of baby A.A. See

T EX. R. C IV. P. 39. Nor did the Office of the Attorney General file any type of

pleading in TDFPS’s suit. Under these circumstances, we hold that the Office

of the Attorney General was not a party to the suit. We sustain the Office of

the Attorney General’s first issue.

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 IV. N ONPARTY M AY N OT P URSUE AN A PPEAL OF AN O RDER

Generally, only parties to an action have standing to appeal. Marino v.

Ortiz, 484 U.S. 301, 302–04, 108 S. Ct. 586, 587–88 (1988); Cont’l Cas. Co.

v. Huizar, 740 S.W.2d 429, 430 (Tex. 1987); Times Herald Printing Co. v.

Jones, 730 S.W.2d 648, 649 (Tex. 1987); Gunn v. Cavanaugh, 391 S.W.2d

723, 725 (Tex. 1965). A nonparty may properly become a party for purposes

of appealing an adverse final judgment by intervening in the action. Marino,

484 U.S. at 302–04, 108 S. Ct. at 587–88.

Here, however, the Office of the Attorney General is not attempting to

appeal a final judgment. Instead, the Office of the Attorney General is

attempting to appeal from an ancillary trial court order entered during the trial

court’s plenary power. The order on the motion to enforce that the Office of

the Attorney General is attempting to appeal does not purport to dispose of all

parties and all issues; thus, it is not a final judgment. See N. E. ISD v. Aldridge,

400 S.W.2d 893, 897–98 (Tex. 1966). Because the Office of the Attorney

General is a nonparty attempting to appeal an order, not a final judgment, any

remedy available is via mandamus. See, e.g., In re Bain, 144 S.W.3d 236, 239

(Tex. App.—Tyler 2004, orig. proceeding) (applying proposition—that a

nonparty may obtain relief from a trial court order by way of petition for writ of

mandamus—to discovery order); Carriere v. Shuffield, 949 S.W.2d 862, 863

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(Tex. App.—Beaumont 1997, orig. proceeding) (same). 5 We hold that, as a

nonparty that did not intervene or appear in the underlying suit, the Office of

the Attorney General possesses no right to appeal the order on the motion to

enforce. Accordingly, we will dismiss this appeal. See T EX. R. A PP. P. 43.2(f).

V. C ONCLUSION

Having sustained the first issue presented by the Office of the Attorney

General, arguing that it was not a party to the suit in the trial court, and having

determined that the Office of the Attorney General, as a nonparty, lacks

standing to pursue an appeal of the order on the motion to enforce, we dismiss

this appeal. In light of this disposition, we need not address the other issues

presented by the Office of the Attorney General. See T EX . R. A PP. P. 47.1

(requiring appellate court to address only issues necessary for disposition of the

appeal).

SUE WALKER
JUSTICE

PANEL: LIVINGSTON, WALKER, and MCCOY, JJ.

DELIVERED: August 14, 2008

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… The Office of the Attorney General urges us to hold that it possesses
a right of appeal. Such a holding, however, would mean that the Office of the
Attorney General should have appealed the earlier April 19, 2006 order
requiring the Office of the Attorney General to correct its records and will in the
future be required to immediately appeal each and every such similar order.

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