in the Interest of T.D.S.T. and C.T., Children

NO. 07-08-0399-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

APRIL 15, 2009
______________________________

IN THE INTEREST OF T.D.S.T. AND C.T., CHILDREN
_________________________________

FROM THE 100TH DISTRICT COURT OF CHILDRESS COUNTY;

NO. 9333; HONORABLE PHIL VANDERPOOL, JUDGE
_______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

OPINION

In this accelerated appeal, appellants R.T. and M.T. bring four issues challenging

the trial court’s judgment terminating their parental rights to T.D.S.T. and C.T. We will

affirm.

Background

Because R.T. and M.T. do not challenge the sufficiency of the evidence supporting

termination, we will recite only the facts relevant to the issues presented. On December

2, 2005, the Department of Family and Protective Services filed a petition to terminate the

parental rights of R.T. and M.T. to their biological children T.D.S.T. and C.T. Through
emergency orders of December 2, the Department was appointed sole temporary

managing conservator of T.D.S.T. and C.T. Following a full adversary hearing before the

associate judge on December 8, temporary orders were signed appointing the Department

temporary managing conservator of T.D.S.T. and C.T. A permanency hearing order signed

on August 28, 2006, fixed December 4, 2006, as the date for dismissal and scheduled a

final hearing for November 28.

The final hearing was held November 28, 2006, before the associate judge. At the

conclusion of the hearing, the associate judge orally rendered an order terminating the

parental rights of R.T. and M.T. and appointing the Department permanent managing

conservator of T.D.S.T. and C.T. On December 1, R.T. and M.T. filed notice appealing the

associate judge’s rendition to the referring district court. The oral rendition was reduced

to a written order signed by the associate judge on December 12.

The district court conducted a trial de novo on February 20, 2007. At the

proceeding, the parties agreed the court would base its judgment exclusively on the record

of the hearing of November 28, 2006. The district court then took the matter under

advisement. On March 7, 2008, R.T. and M.T. filed a motion to dismiss the case on the

ground that a final order was not rendered within the period specified by Family Code

section 263.401(a).1

1
Tex. Fam. Code Ann. § 263.401(a). See Act of May 28, 1997, 75th Leg., R.S., ch.
600, § 17, 1997 Tex. Gen. Laws 2108, 2112 Act of May 28, 1997, 75th Leg., R.S., ch. 603,
§ 12, 1997 Tex. Gen. Laws 2119, 2123; Act of May 31, 1997, 75th Leg. R.S., ch. 1022, §
90, Tex. Gen. Laws 3733, 3768 amended by Act of May 27, 2007, 80th Leg., R.S., ch. 866
§ 2, 2007 Tex. Gen. Laws 1837, 1838. Unless otherwise specified, all references to Family
Code provisions in this opinion are to the version of the statute in effect in 2005 when the
Department filed suit.

2
 A new district judge was appointed in March 2008. He convened a hearing in the

case on April 7. There, the parties stated their positions on the merits and agreed to

submit briefs. The court indicated it would review the briefs before deciding to review the

record. There was no objection. The court denied the motion to dismiss of R.T. and M.T.

by order of June 3.

In an order signed August 6, 2008, the district court terminated the parental rights

of R.T. and M.T. and appointed the Department permanent managing conservator of

T.D.S.T. and C.T. The order recites that the court inter alia reviewed the reporter’s record

of the November 28, 2006, hearing and the clerk’s record before reaching its decision. The

order adopted the material terms of the associate judge’s order. R.T. and M.T. then

appealed to this court.

Discussion

Through their first and second issues R.T. and M.T. argue the district court erred by

failing to dismiss the case2 because a final order was not rendered within the time limits of

Family Code section 263.401.

As it existed at the time applicable to the underlying case, section 263.401 in

pertinent part required that unless:

[T]he court has rendered a final order...on the first Monday after the first
anniversary of the date the court rendered a temporary order appointing the

2
The Department contends the motion to dismiss filed by R.T. and M.T. was
untimely. See Tex. Fam. Code Ann § 263.402(b). Consideration of this argument is not
necessary for our disposition of the first and second issues of R.T. and M.T.

3
 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.

Tex. Fam. Code Ann. § 263.401(a).

On the record, at the conclusion of the November 28, 2006, hearing the associate

judge stated:

The Court finds the evidence sufficient, does terminate the parental rights of
[M.T. and R.T.] to the children [T.D.S.T. and C.T.]. Appoints the Department
of Family and Protective Services as permanent managing conservator of
both children. Sets the initial placement review matter in this--initial
placement review hearing in this matter on Thursday, March 15, 2007 at 11
a.m. Will not order either parent to pay child support pending adoption. That
concludes this hearing.

According to R.T. and M.T., the rendition by the associate judge terminating the

parent-child relationship was not a final order because it was timely appealed to the district

court for trial de novo. And the district court erred, they further argue, by not dismissing

the case when it failed to render a final order within the one year period of section

263.401(a).

To analyze the issue, we must necessarily consider the meaning of the words

“render” and “final order” as applied by section 263.401 and their application to the

rendition by the associate judge. The term “render” is defined in the Family Code. It

“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.” Tex. Fam. Code

4
Ann. § 101.026. We are guided in our understanding of “final order” by the canon of

construction that when words are given a technical or particular meaning, the court should

construe them accordingly. Tex. Gov’t Code Ann. § 311.011(b) (Vernon 2005). See

Transport Ins. Co. v. Faircloth, 898 S.W.2d 269, 274 (Tex. 1995) (court is bound to

construe statutory terms, in this case the DTPA, according to their statutory definitions).

Section 263.401 then gave its own particular meaning to the term “final order”:

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.

Tex. Fam. Code Ann. § 263.401(d).

Concerning the role of the associate judge in the underlying proceedings, the

version of the Family Code in place at the time allowed a district judge to appoint a full-time

or part-time associate judge to hear matters in a suit affecting the parent-child relationship.

Tex. Fam. Code Ann. § 201.001. An associate judge could conduct a hearing and inter

alia make findings of fact and conclusions of law, and “recommend an order to be rendered

in a case.” Tex. Fam. Code Ann. § 201.007(a)(1), (8), (9), & (10). Following a hearing, the

associate judge was required to send a report of the proceeding, including any proposed

order and other papers related to the case, to the referring court. Tex. Fam. Code Ann.

5
§ 201.011(e). The report could contain the associate judge’s findings, conclusions, or

recommendations including a proposed order. Tex. Fam. Code Ann. § 201.011(a).3

Following a hearing, a party could “appeal an associate judge’s report to the referring court

by filing notice of appeal within three days of receiving notice of the substance of the

report.” Tex. Fam. Code Ann. § 201.015(a).4 Here, R.T. and M.T. availed themselves of

this right. Under such circumstance, the Family Code further provided that during the

pendency of the appeal of “the associate judge’s report, including any proposed order,” to

the district court, “the decisions and recommendations of the associate judge” remained

in full force and effect and were enforceable as an order of the district court. Tex. Fam.

Code Ann. § 201.013(a).5 We find persuasive the reasoning and result in Garza v. Tex.

Dep’t of Family & Protective Servs. where the Austin Court of Appeals found an order of

an associate judge met the requirements of a final order under section 263.401. 212

S.W.3d 373 (Tex.App.–Austin 2006, no pet.).

Applying these precepts to the facts at bar, we find the district court did not err by

refusing to dismiss the case for the claimed transgression of section 263.401(a). On

November 28, 2006, the associate judge rendered an order terminating the parent-child

relationship and appointing the Department permanent managing conservator of T.D.S.T.

3
See Act of May 17, 1999, 76th Leg., R.S., ch. 1302 § 7, 1999 Tex. Gen. Laws
4448, 4450, amended by Act of May 23, 2007, 80th Leg., R.S., ch. 1235 § 2, 2007 Tex.
Gen. Laws 4150, 4151.
4
See Act of April 4, 1995, 74th Leg., R.S., ch. 20 § 1, Tex. Gen. Laws 113, 241,
amended by Act of May 23, 2007, 80th Leg., R.S., ch. 1235 § 7, 2007 Tex. Gen. Laws
4150, 4152.
5
See Act of May 17, 1999, 76th Leg., R.S., ch. 1302 § 8, 1999 Tex. Gen. Laws
4448, 4450, amended by Act of May 23, 2007, 80th Leg., R.S., ch. 1235 § 5, 2007 Tex.
Gen. Laws 4150, 4151.

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and C.T. The rendition met the requirements of a final order under section 263.401(d).

See Tex. Fam. Code Ann. § 263.401(d).6 The rendition had the force of an order of the

district court during the pendency of appeal to the district court. In short, within the one-

year period specified by section 263.401(a) a final order was rendered. The first and

second issues of R.T. and M.T. are overruled.

In their third issue, R.T. and M.T. argue the judgment of the district court following

trial de novo is void because it was rendered out of term without an extension. R.T. and

M.T. did not raise this argument in the trial court in their statement of points. Tex. Fam.

Code Ann. § 263.405(b). Generally we are barred from considering an issue not raised in

a timely filed statement of points. Tex. Fam. Code Ann. § 263.405(i). However, the issue

may constitute a challenge to the trial court’s jurisdiction to render judgment7 and thus to

this court’s jurisdiction to consider the merits of the appeal,8 so we will address it.

6
See Act of May 28, 1997, 75th Leg., R.S., ch. 600, § 17, 1997 Tex. Gen. Laws
2108, 2113; Act of May 28, 1997, 75th Leg., R.S., ch. 603, § 12, 1997 Tex. Gen. Laws
2119, 2123; Act of May 31, 1997, 75th Leg. R.S., ch. 1022, § 90, Tex. Gen. Laws 3733,
3769, repealed by Act of May 27, 2007, 80th Leg., R.S., ch. 866 § 5, 2007 Tex. Gen. Laws
1837, 1838. The repeal of subsection (d) was effective June 15, 2007, and applies only
to a suit affecting the parent-child relationship filed on or after that date.
7
But see Shaw & Estes v. Texas Consol. Oils, 299 S.W. 307, 312
(Tex.Civ.App.–Galveston 1957, writ ref’d n.r.e.), suggesting action of trial court outside
authorized term does not raise an issue of subject matter jurisdiction. We need not
address the question.
8
See Wall Street Deli, Inc. v. Boston Old Colony Ins. Co., 110 S.W.3d 67, 70 (Tex.
App.–Eastland 2003, no pet.) (appeal of void judgment should be dismissed for want of
jurisdiction); Mellon Service Co. v. Touche Ross & Co., 946 S.W.2d 862, 864 (Tex.
App.–Houston [14th Dist.] 1997, no pet.) (court of appeals has no jurisdiction to consider
merits of appeal from void judgment but must vacate void judgment and dismiss appeal).

7
 “Term of court” means the period fixed by law during which a court may be in

session to hear cases and transact judicial business. Ex parte Williams, 704 S.W.2d 773,

787 (Tex.Crim.App. 1986). The terms of the 100th district court begin in Childress County

on the first Mondays in May and December. Tex. Gov’t Code Ann. § 24.202 (Vernon

2004). The court’s terms are continuous, each term continuing until the beginning of the

next succeeding term. Tex. Gov’t Code Ann. § 24.012(b) (Vernon 2004). As for cases

involving judicial actions taken in succeeding terms of court, Rule of Civil Procedure 330(i)

provides in part:

If a case or other matter is on trial, or in the process of hearing when the
term of court expires, such trial, hearing or other matter may be proceeded
with at the next or any subsequent term of court and no motion or plea shall
be considered as waived or overruled, because not acted upon at the term
of court at which it was filed, but may be acted upon at any time the judge
may fix or at which it may have been postponed or continued by agreement
of the parties with leave of the court....

Tex. R. Civ. P. 330(i). In Lloyd’s of London v. Walker, 716 S.W.2d 99 (Tex.App.–Dallas

1986, writ ref’d n.r.e.) the appellant asserted points of error grounded on a six-year delay

between trial and rendition of judgment. In overruling the points, the court noted the plain

language of Rule 330(i). “[T]he rule itself contains no time limit in which a court must act

in rendering judgment–to the contrary, it may act at the next or any subsequent term.” Id.

at 101 (emphasis in original).

R.T. and M.T. present a contrary interpretation of Rule 330(i), relying on Shaw &

Estes v. Texas Consol. Oils, 299 S.W.2d 307 (Tex.Civ.App.–Galveston 1957, writ ref’d

n.r.e.) and Turner v. Texas Sportservice, Inc., 312 S.W.2d 388 (Tex.Civ.App.–San Antonio

8
1958, writ ref’d n.r.e.). But Shaw and Turner applied Rule 330(i)9 prior to its 1961

amendment. Shaw, 299 S.W.2d at 310-11; Turner, 312 S.W.2d at 389-90. As the current

language of the rule and the commentary make clear, unfinished cases or other matters

may be disposed of at “the next or any subsequent term of court.” Tex. R. Civ. P. Ann.

330, General Commentary–1966 Amendment (Vernon 1977). As the commentary further

notes, “It follows that an extension order under [former Article 1923, V.A.C.S.] is no longer

required at any subsequent term of court.” Id. See also 1 Roy W. McDonald & Elaine A.

Grafton Carlson, Texas Civil Practice: Courts § 3:110[c] (2d ed. 2004) (noting that under

current rules, “it appears unnecessary to discuss the practice of extending the term of a

district court”). We conclude the district court did not lack jurisdiction to take action in this

case during a subsequent term. We overrule the third issue of R.T. and M.T.

By their fourth issue, R.T. and M.T. argue that because the district court did not

render judgment within ninety days of taking the case under advisement, they suffered

substantial prejudice and harm. This argument is not couched as a jurisdictional challenge

and was not raised in the statement of points R.T. and M.T. filed in the trial court. We are,

therefore, precluded by law from considering it on appeal. Tex. Fam. Code Ann. §

263.405(i); In re J.O.A., 262 S.W.3d 7, 16 (Tex.App.–Amarillo 2008, pet. granted). The

issue is overruled.

9
In 1973, former subdivision (j) was relettered subdivision (i). Tex. R. Civ. P. Ann.
330, Historical Note–1973 Amendment (Vernon 1977).

9
 Having overruled each of the issues presented by R.T. and M.T., we affirm the

judgment of the trial court.

James T. Campbell
Justice

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