in Re Charles Norris

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-12-00239-CV

In re Charles Norris

ORIGINAL PROCEEDING FROM WILLIAMSON COUNTY

OPINION

This is an original proceeding brought incident to a pending appeal that presents

issues concerning the scope of a family code provision that grants to trial courts the authority to issue

temporary orders pending the appeal of a case involving conservatorship of a child. See Tex. Fam.

Code Ann. § 109.001 (West 2008). Relator Charles Norris seeks a writ of mandamus to set aside

a district court order that he pay real party in interest Melissa Norris’s attorney’s fees in the pending

appeal. Based on the reasons set forth below, we will conditionally grant the writ.

BACKGROUND

Charles Norris and Melissa Norris divorced in 2006.1 There was one minor child of

the marriage, and the divorce decree appointed Charles and Melissa joint managing conservators,

1
We take the facts stated here from the parties’ briefs and appendices as well as from the
appellate record filed in the pending appeal of the underlying case, Charles Norris v. Melissa Norris,
Appellate Cause No. 03-12-00108-CV, of which we take judicial notice here. See Texas Real Estate
Comm’n v. Nagle, 767 S.W.2d 691, 694 (Tex. 1989); In re Riley, 339 S.W.3d 216, 221 n.5
(Tex. App.—Waco 2011, orig. proceeding).
but no party was ordered to pay child support.2 Melissa filed the underlying suit seeking an order

from the district court requiring Charles to pay child support. After a full trial on the merits, the

district court signed a final order modifying the parent-child relationship on December 14, 2012,

ordering Charles to pay child support in the amount of $885 per month. Charles filed a motion for

new trial on January 13, 2012, and on February 17, 2012, Charles perfected his appeal to this Court

by filing a notice of appeal with the district clerk.

On March 6, 2012, Melissa filed a motion for temporary orders pending appeal,

seeking payment of her appellate attorney’s fees on the grounds that they were necessary to preserve

and protect the safety and welfare of the child. On March 20, 2012, thirty-one days after Charles

perfected his appeal to this Court, the district court conducted a hearing on Melissa’s motion for

temporary orders and orally ruled that he would grant the motion. On March 29, the district court

signed a written order granting Melissa’s motion and ordering Charles to pay Melissa $8,100 in

appellate attorney’s fees by May 4, 2012. Charles then filed this original proceeding and, pursuant

to his request for temporary relief, we issued an order on May 2, 2012, staying the district court’s

March 29 order until further notice.

STANDARD OF REVIEW

We may issue a writ of mandamus when a trial court clearly abuses its discretion

and there is no adequate remedy by appeal. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124,

135–36 (Tex. 2004). A trial court “abuses its discretion” if it issues an order that exceeds its

2
Given the parties’ common surname, we will identify them by their first names to avoid
confusion.

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jurisdictional authority. See In re Southwestern Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000); In re

Dickason, 987 S.W.2d 570, 571 (Tex. 1998). In fact, an order that exceeds a court’s jurisdictional

authority is void, and a relator who seeks mandamus relief from a void order need not show that he

lacks an adequate appellate remedy. See In re Southwestern Bell, 35 S.W.3d at 605; In re Dickason,

987 S.W.2d at 571 (citing Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990) (explaining that

judgment is void where rendering court had no jurisdiction or capacity to act as a court)).

To the extent that the parties’ issues turn on the construction of a statute, we

review these questions de novo. State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). Our primary

objective in statutory construction is to give effect to the Legislature’s intent. See id. We seek that

intent “first and foremost” in the statutory text. Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 85

(Tex. 2006). “Where text is clear, text is determinative of that intent.” Entergy Gulf States, Inc.

v. Summers, 282 S.W.3d 433, 437 (Tex. 2009) (op. on reh’g) (citing Shumake, 199 S.W.3d at 284;

Alex Sheshunoff Mgmt. Servs. v. Johnson, 209 S.W.3d 644, 651–52 (Tex. 2006)). We consider the

words in context, not in isolation. State v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002). We rely on

the plain meaning of the text, unless a different meaning is supplied by legislative definition or is

apparent from context, or unless such a construction leads to absurd results. See Entergy Gulf States,

Inc., 282 S.W.3d at 437; City of Rockwall v. Hughes, 246 S.W.3d 621, 625–26 (Tex. 2008); see also

Tex. Gov’t Code Ann. § 311.011 (West 2005) (“Words and phrases shall be read in context and

construed according to the rules of grammar and common usage,” but “[w]ords and phrases that have

acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be

construed accordingly.”). We also presume that the Legislature was aware of the background law

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and acted with reference to it. See Acker v. Texas Water Comm’n, 790 S.W.2d 299, 301 (Tex. 1990).

We further presume that the Legislature selected statutory words, phrases, and expressions

deliberately and purposefully. See Texas Lottery Comm’n v. First State Bank of DeQueen,

325 S.W.3d 628, 635 (Tex. 2010); Shook v. Walden, 304 S.W.3d 910, 917 (Tex. App.—Austin 2010,

no pet.). Our analysis of the statutory text may also be informed by the presumptions that “the entire

statute is intended to be effective” and that “a just and reasonable result is intended,” Tex. Gov’t

Code Ann. § 311.021(2), (3) (West 2005), and consideration of such matters as “the object sought

to be attained,” “circumstances under which the statute was enacted,” legislative history, “common

law or former statutory provisions, including laws on the same or similar subjects,” “consequences

of a particular construction,” and the enactment’s “title,” id. § 311.023(1)-(5), (7) (West 2005).

However, only when the statutory text is ambiguous “do we ‘resort to rules of construction

or extrinsic aids.’” Entergy Gulf States, Inc., 282 S.W.3d at 437 (quoting In re Estate of Nash,

220 S.W.3d 914, 917 (Tex. 2007)).

ANALYSIS

Charles contends that section 109.001 of the family code provides the exclusive

authority for the district court to issue temporary orders pending an appeal of a suit affecting the

parent-child relationship, and that the district court’s March 29 order in this case is void because

the district court had already lost its jurisdiction to render such an order thirty days after Charles

perfected his appeal on February 17. Melissa agrees that section 109.001 controls here, but insists

that the district court’s March 29 order was timely under section 109.001, and thus not void, for

three reasons: (1) Charles’s notice of appeal was “premature” because he filed it before his motion

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for new trial was overruled; (2) Melissa was prejudiced when Charles did not serve a copy of the

notice of appeal on Melissa’s attorney until five days after he filed it with the district court, which,

she reasons, entitles her to an additional five days under section 109.001 to obtain temporary orders;

and (3) by including the additional fives days to which Melissa claims she is entitled, the

district court’s oral order granting the requested temporary orders pending appeal occurred within

the thirty-day time limit.3

Chapter 109 of the family code governs the appeal of a final judgment in a suit

affecting the parent-child relationship (SAPCR). See Tex. Fam. Code Ann. §§ 109.001–.003

(West 2008 & West Supp. 2011); see generally id. §§ 101.001–266.001 (West 2008 & West Supp.

2011) (Title F of family code, titled “The Parent-Child Relationship and the Suit Affecting the

Parent-Child Relationship”). An appeal under this chapter generally follows the same path as other

civil appeals—with the notable exception that appeals of termination cases are accelerated. See id.

§ 109.002(a). Thus, for example, once the appeal is perfected, the trial court loses its jurisdiction

over the entire controversy, but it still retains plenary power to grant a new trial or to vacate, modify,

correct, or reform the judgment within thirty days after the judgment is signed or, if a motion for

new trial is filed, within thirty days of that motion being overruled. See Miles v. Ford Motor Co.,

914 S.W.2d 135, 138 (Tex. 1995) (citing Ammex Warehouse Co. v. Archer, 381 S.W.2d 478 (holding

that when appeal is perfected, appellate court “acquires plenary exclusive jurisdiction over the

entire controversy” subject to trial court’s right to grant a motion for new trial)); see also Tex. R.

3
Melissa makes an additional argument regarding an alleged oral conversation between
the parties’ attorneys about Charles’s notice of appeal. Because the conversation took place before
Charles filed his notice and because he does not rely on this, we need not consider it.

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Civ. P. 329b (providing rules regarding post-trial motions for new trial and motions to modify,

correct, or reform judgments).

Family code section 109.001 provides an exception to this general rule by creating

a narrow, jurisdictional window of time during which the trial court in an appealed SAPCR case may

make temporary orders regarding matters that were not included in its final judgment:

Not later than the 30th day after the date an appeal is perfected, on the motion of
any party or on the court’s own motion and after notice and hearing, the court may
make any order necessary to preserve and protect the safety and welfare of the child
during the pendency of the appeal as the court may deem necessary and equitable.
In addition to other matters, an order may:

(1) appoint temporary conservators for the child and provide for possession of
the child;

(2) require the temporary support of the child by a party;

(3) restrain a party from molesting or disturbing the peace of the child or another
party;

(4) prohibit a person from removing the child beyond a geographical area
identified by the court;

(5) require payment of reasonable attorney’s fees and expenses; or

(6) suspend the operation of the order or judgment that is being appealed.

Tex. Fam. Code Ann. § 109.001(a); see In re Boyd, 34 S.W.3d 708, 710–11 (Tex. App.—Fort Worth

2000, no pet.) (holding that intent of similar provision in family code was to extend power of

trial court to enter temporary orders after an appeal has been perfected); see also Tex. R. Civ. P. 308

(regarding trial court’s continuing authority to enforce its judgments); Arndt v. Farris, 633 S.W.2d

497, 499 (Tex. 1982) (holding that trial court has inherent power to enforce its judgments).

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Under the plain language of this statute, the trial court’s authority to make such temporary orders

is limited to thirty days after the appeal is perfected. See Tex. Fam. Code Ann. § 109.001(a). Stated

another way, “the statute’s language expressly states [that] the time within which the trial court must

act is ‘the 30th day after the date an appeal is perfected.’” In re Boyd, 34 S.W.2d at 711 (quoting

Tex. Fam. Code Ann. § 6.709 (West 2006)).

An appeal of a civil case is perfected when a written notice of appeal is filed with

the trial court clerk. See Tex. R. App. P. 25.1. Here, the parties agree that Charles filed his notice

of appeal with the district court’s clerk on February 17, 2012. The thirtieth day after February 17

fell on Sunday, March 18. Consequently, Monday, March 19, 2012, was the thirtieth day after

Charles perfected his appeal under the rules. See Tex. R. App. P. 4.1 (computing time under rules

of appellate procedure, day of event is not included, but last day is included unless it falls on a

Saturday or Sunday, in which case period extends to the next day); Tex. R. Civ. P. 4 (same).

Accordingly, the district court here had the jurisdiction to make temporary orders pending appeal

through March 19, 2012. It is undisputed that the district court’s order in this case was made after

this date. Therefore, the district court lacked jurisdiction to issue the order and, as a result, the order

is void. See In re Southwestern Bell, 35 S.W.3d at 605; In re Dickason, 987 S.W.2d at 571 (citing

Mapco, Inc., 795 S.W.2d at 703 (explaining that judgment is void where the rendering court had no

jurisdiction to act)).

“Premature” notice of appeal

Melissa contends that the district court’s order was timely—i.e., that it was made

within the jurisdictional time frame created by section 109.001(a)—because Charles’s appeal was

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perfected not on February 17, but ten days later on February 27, 2012, when his motion for new trial

was overruled by operation of law. See Tex. R. Civ. P. 329b(c) (providing that motion for new trial

is overruled by operation of law on expiration of seventy-five days after judgment signed).

Specifically, she argues that under the rules of appellate procedure, Charles could not file a notice

of appeal in this case until after his pending motion for new trial was overruled, either by the

trial court or by operation of law. Because Charles filed it before then, she argues, his notice of

appeal was premature and prematurely filed notices of appeal are deemed effective on the first date

they would not have been premature, which she argues was February 27 when it was overruled by

operation of law.

In support of her argument that Charles could not timely file his notice of appeal until

after his motion for new trial was overruled, Melissa cites to Trevino v. Pemberton, 918 S.W.2d 102

(Tex. App.—Amarillo 1996, no writ). In Trevino, the Amarillo Court of Appeals interpreted the

phrase “prematurely filed document” in rule 41(c) of the former rules of appellate procedure—the

predecessor to current rule of appellate procedure 27.1, see Tex. R. App. P. 27.1 cmt.—to

“encompass[] documents filed before the entry of a final judgment or order overruling a motion for

new trial.” Trevino, 918 S.W.2d at 105. Trevino held that because the document at issue there had

been filed while a motion for new trial was pending, the document was prematurely filed and, as a

result, its effective date was the day the motion for new trial was later overruled. Id. Melissa argues

that this holding means that a notice of appeal is premature under rule of appellate procedure 27.1

if it is filed before a motion for new trial is overruled. We disagree.

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 First, Trevino was decided under former rules of appellate procedure that

made perfecting an appeal considerably more complicated than it is under the current rules. See

49 Tex. B.J. 566 (1986) (setting forth former rules of appellate procedure, including former rule 40).

For example, depending on the circumstances, an appellant under former rule 40 might have to file

or make a bond, cash deposit, or an affidavit in lieu of cash deposit to perfect his appeal, see id.

41(a)(1), or if no security was required, simply file a notice of appeal, see id. 40(a)(2). In contrast,

the plain language of rule of appellate procedure 25.1 simply requires an appellant to file a written

notice of appeal with the trial court clerk to perfect his appeal. See Tex. R. App. P. 25.1. Second,

in reaching its conclusion that “prematurely filed documents” are any documents filed before entry

of final judgment or order overruling a motion for new trial, Trevino relied on a prior version of

rule of civil procedure 306c that applied to motions for new trial, requests for findings of fact and

conclusions of law, and notices of appeal, and that referenced both the date the judgment was signed

and “the date of the overruling of motion for new trial, if such motion is filed” in determining

appellate deadlines. See Tex. R. Civ. P. 306c cmt. (noting that 1986 amendment to rule 306c deleted

reference to overruling of motion for new trial); Trevino, 918 S.W.2d at 105. But the current

rule 306c, and in fact the version in effect when Trevino was decided, no longer applies to notices

of appeal and further, simply provides that prematurely filed motions for new trial and requests for

findings of fact and conclusions of law should be deemed filed—

on the date of but subsequent to the time of signing of the judgment the motion
assails, and every such request for findings of fact and conclusions of law shall be
deemed to have been filed on the date of but subsequent to the time of the signing of
the judgment.

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Tex. R. Civ. P. 306c. We also note that the appellate document underlying Trevino was an affidavit

of indigence, which is no longer required to perfect an appeal under rule 25.1. See Tex. R. App.

P. 25.1. Accordingly, Trevino does not inform our decision here.

What does inform our decision here, however, are the current rules of appellate

procedure, specifically rules 26.1 and 27.1. Rule 27.1 provides that “a prematurely filed notice of

appeal is effective and deemed filed on the day of, but after, the event that begins the period for

perfecting the appeal.” See Tex. R. App. P. 27.1. And under rule 26.1, “the event that begins the

period for perfecting the appeal” is the date the judgment is signed:

The notice of appeal must be filed within 30 days after the judgment is signed, except
as follows:

(a) the notice of appeal must be filed within 90 days after the judgment is signed
if any party timely files:

(1) a motion for new trial;
(2) a motion to modify the judgment;
(3) a motion to reinstate . . . ;
(4) a request for findings of facts and conclusions of law . . . .

(b) in an accelerated appeal, the notice of appeal must be filed within 20 days
after the judgment or order is signed;

(c) in a restricted appeal, the notice of appeal must be filed within six months
after the judgment or order is signed; and

(d) if any party timely files a notice of appeal, another party may file a notice of
appeal within the applicable period stated above or 14 days after the first filed
notice of appeal, whichever is later.

Id. at 26.1 (emphases added). In other words, a notice of appeal is premature if it is

filed before the judgment is signed. See, e.g., Alvarado v. Lexington Ins. Co., — S.W.3d —,

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Nos. 01–10–00740–CV, 01–10–01150–CV, 2012 WL 1355733, at *3 n.4 (Tex. App.—Houston

[1st Dist.] Apr. 19, 2012, no pet. h.) (noting that notice of appeal was premature because it was

filed before the trial court rendered a final judgment); McAfee, Inc. v. Weiss, 336 S.W.2d 840, 842

(Tex. App.—Dallas 2011, pet. denied) (holding that notice of appeal was premature because it was

filed before final order). Nothing in the rules of appellate procedure suggests that a ruling on the

motion for new trial is “the event that begins the period for perfecting the appeal.”4

Here, the district court signed a final order disposing of the SAPCR on December 14,

2011, and Charles subsequently filed a motion for new trial. Therefore, under the plain language of

rule of appellate procedure 26.1, Charles had to file his notice of appeal “within 90 days after the

judgment [was] signed,” Tex. R. App. P. 26.1(a)(1) (emphasis added)—i.e., by March 13, 2012. As

stated, he filed his notice of appeal on February 17, which is within 90 days after December 14,

2011. Accordingly, Charles’s notice of appeal was not premature.

Melissa suggests that our reading of section 109.001 and the rules of appellate

procedure is “inefficient” because it could lead to a situation where the trial court is “forced” to rule

on a motion for temporary orders pending appeal and then later negate the need for that order if it

grants a motion for new trial. Initially, we note that this argument assumes, without foundation, that

a temporary order issued to preserve and protect the safety and welfare of a child could somehow

be later deemed unnecessary by the granting of a new trial. But even if this were true, nothing in the

4
Of course, if the trial court modifies, corrects, or reforms the judgment, the appellate
deadlines restart. See Tex. R. Civ. P. 329b(h); Lane Bank Equip. Co. v. Smith S. Equip., Inc.,
10 S.W.3d 308, 313 (Tex. 2000).

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language of rule 25.1 suggests that an appeal cannot be perfected while a motion for new trial is

pending, see id., and further, rule of civil procedure 329b contemplates just such a scenario:

If a motion for new trial is timely filed by any party, the trial court, regardless of
whether an appeal has been perfected, has plenary power to grant a new trial or to
vacate, modify, correct, or reform the judgment until thirty days after all such timely-
filed motions are overruled, either by a written and signed order or by operation of
law, whichever occurs first.

Tex. R. Civ. P. 329b(e). In short, we reject Melissa’s arguments predicated on the notion that

Charles’s notice of appeal was “premature” in some relevant respect.

Late service

Melissa also complains that she was prejudiced because Charles did not serve a

copy of his notice of appeal on Melissa’s attorney until February 22—five days after he filed it

with the district court. See Tex. R. App. P. 9.5 (“At or before the time of a document’s filing, the

filing party must serve a copy on all parties to the proceeding.”); 25.1(e) (requiring service of

the notice of appeal to all parties to the trial court’s final judgment). She suggests that this entitles

the district court, on equitable grounds, to an additional five days in which to issue temporary

orders under section 109.001(a), presumably making March 23, 2012, the last day on which the

district court could have issued a temporary order under section 109.001. We disagree.

As discussed previously, section 109.001 provides a jurisdictional window that begins

from the point an appeal is perfected. See Tex. Fam. Code Ann. § 109.001(a). Under the rules of

appellate procedure, an appeal is perfected, not when it is served on the other parties, but rather

“when a written notice of appeal is filed with the clerk.” See Tex. R. App. P. 25.1(a). Although

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late service of the notice may subject an appeal to dismissal under the rules, it does not under

the plain language of the rules change the date on which the appeal was perfected. See Tex. R. App.

P. 9.5(d), 25.1.

In any event, we do not see how Melissa was harmed by the five-day delay in

notice here. Melissa argues that the very fact that she was shorted five days is harm, but the record

shows that Melissa was able to file a motion and set a hearing during the thirty-day window.

Although she subsequently passed that first setting for reasons that are not clear from the record, the

fact remains that she received the notice of appeal in time for her to file a motion for temporary

orders and set a hearing during the jurisdictional window created by section 109.001(a). In other

words, the record shows that Melissa was not prevented from obtaining a ruling on her

motion for temporary orders by the five-day delay in notice. See Hare v. Hare, 786 S.W.2d 747, 749

(Tex. App.—Houston [1st Dist.] 1990, no pet.) (holding that fifteen-day delay in notice of appeal

prejudiced appellee because she was prevented from obtaining a ruling on her motion for temporary

orders pending appeal).

Oral order

In her final argument, Melissa argues that, even though the court did not sign its order

granting her motion for temporary orders until March 29, 2012, the district court’s order was

nevertheless timely because the court rendered it orally at the end of the temporary-orders hearing

on March 20, 2012. But even if we were to accept that an oral ruling on a motion for temporary

orders trumps, for deadline purposes, a later signed order that memorializes the prior oral

pronouncement, the district court’s March 20 oral ruling was still outside the jurisdictional window

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created by section 109.001. Again, as set forth above, the deadline for the trial court to make

temporary orders under section 109.001(a) was March 19, 2012—i.e., thirty days after Charles filed

his notice of appeal. Thus, whether on March 20 or March 29, the district court’s order here was

made outside the jurisdictional time frame created by section 109.001 and, as such, is void.

CONCLUSION

Because more than thirty days passed after Charles perfected his appeal in this matter,

the district court lacked jurisdiction to issue temporary orders pending appeal under section 109.001.

Accordingly, the order that it signed on March 29, 2012, was void, and we therefore conditionally

grant Charles’s petition for writ of mandamus. The writ will issue only if the trial court fails to

vacate its March 29, 2012 order awarding temporary attorney’s fees during appeal.

__________________________________________

Bob Pemberton, Justice

Before Chief Justice Jones, Justices Pemberton and Rose;
Concurring Opinion by Chief Justice Jones

File: June 7, 2012

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