TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-21-00605-CV
J. M., Appellant
v.
Texas Department of Family and Protective Services, Appellee
FROM THE 22ND DISTRICT COURT OF HAYS COUNTY
NO. 19-1123, GLENN H. DEVLIN, JUDGE PRESIDING
MEMORANDUM OPINION
J.M. (Father) appeals from the trial court’s final order terminating his parental
rights to his four children. See Tex. Fam. Code § 161.001(b)(1)(O), (2). In one issue, Father
contends that the trial court erred in striking his request for a trial de novo. For the following
reasons, we will affirm the trial court’s order of termination.
BACKGROUND
The Texas Department of Family and Protective Services filed an original petition
seeking termination of the parental rights of Father to his four children.1 A bench trial occurred
on August 2, 2021, over which the Honorable Glenn H. Devlin presided. Judge Devlin is a
Senior Judge of the 313th Judicial District Court who was assigned as a visiting judge to the
22nd Judicial Court of Hays County by the Honorable Billy Ray Stubblefield, Presiding Judge of
1
The Department filed its petition as to the parental rights of the children’s mother also,
and the trial court terminated her parental rights, but she is not a party to this appeal.
the Third Administrative Judicial Region, in a July 2021 general order.2 See Tex. Gov’t Code
§§ 74.052(a) (permitting judges to be assigned “to dispose of accumulated business”), .056(a)
(authorizing presiding judge of administrative region to assign judges in region “to try cases and
dispose of accumulated business”), .059(a) (providing that assigned judge “has all the powers of
the judge of the court to which he is assigned”). At the end of trial, Judge Devlin pronounced
judgment terminating Father’s parental rights.
On August 4, Father filed a “Request for Trial De Novo Before the Referring
Court.” On August 6, Judge Devlin signed the order on appeal terminating Father’s parental
rights. That same day, the Department filed a motion to strike Father’s de novo request arguing
that Father was not entitled to a de novo hearing because an associate judge did not conduct the
2
The assignment was pursuant to a general order signed by Judge Stubblefield, filed with
the clerk of the Hays County District Court on July 12, 2021, which provides the following:
Pursuant to Section 74.056, Texas Government Code, the undersigned Presiding
Judge [Stubblefield] assigns the Honorable Glenn H. Devlin, Senior Judge 313st
[sic] Judicial District Court, to the 22nd Judicial District Court (for the Child
Protection Court) of Hays County, Texas.
This assignment is for a period of five days beginning the 2nd day of August,
2021. If the judge begins a trial on the merits during the period of assignment, the
assignment continues in such case until plenary jurisdiction has expired or the
undersigned Presiding Judge has terminated this assignment in writing, whichever
occurs first.
IT IS ORDERED that the Clerk of the Court to which this assignment is made, if
it is reasonable and practicable, and if time permits, give notice of this assignment
to each attorney representing a party to a case that is to be heard in whole or in
part by the assigned Judge.
IT IS FURTHER ORDERED that the Clerk, upon receipt hereof, shall post a
copy of this order in a public area of the Clerk’s office or courthouse so that
attorneys and parties may be advised of this assignment.
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trial. After a hearing on the Department’s motion, the trial court granted the motion and struck
Father’s de novo request. Father perfected this appeal.
DISCUSSION
In one issue, Father contends that the trial court erred in striking his request for a
de novo hearing. He argues that in a prior general order, effective October 1, 2015 and filed with
the clerk of the Hays County District Court on September 18, 2015, Judge Stubblefield referred
“all child protection cases” to an associate judge, the Honorable Melissa McClenahan.3 Father
argues that due to this general order; notices that this cause would proceed “in the Child
Protection Court of Hays County”; and the facts that Judge McClenahan signed several
interlocutory orders as “Associate Judge,” no party filed an objection to an associate judge
presiding over the trial, and “no announcement was made at the beginning of or during trial
about which court was hearing the case,” all combined to give him a “reasonable belief” that an
associate judge was presiding over the trial. Thus, Father concludes, he is entitled to a de novo
3
This 2015 general order reads,
Having determined that certain courts of the Third Administrative Judicial Region
of Texas require the appointment of an associate judge for child protection cases,
and having appointed associate judges to serve in the Third Administrative
Judicial Region of Texas pursuant to Section 201.201, Texas Family Code,
IT IS THEREFORE ORDERED that all child protection cases in Comal and Hays
counties be and are hereby referred to Melissa McClenahan the Associate Judge
for child protection cases appointed to serve the Third Administrative Judicial
Region.
The clerk of the court of each county within the Third Administrative Judicial
Region of Texas whose child protection cases have been referred to the associate
judges for child protection cases of the Third Administrative Judicial Region of
Texas shall record a copy of this order in the minutes of said court.
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hearing. See Tex. Fam. Code § 201.015(a) (“A party may request a de novo hearing before the
referring court by filing with the clerk of the referring court a written request not later than the
third working day after the date the party receives notice of . . . the substance of the associate
judge’s report as provided by Section 201.011 . . . .”).
Although Judge McClenahan signed several interlocutory orders in this case, it is
uncontested that Judge Devlin conducted the bench trial and rendered the final order of
termination.4 Father identifies nothing in the record appointing Judge Devlin as an associate
judge or a visiting associate judge. Cf. id. § 201.018 (providing that presiding judge may appoint
visiting associate judge to perform duties of appointed associate judge during that judge’s period
of disability or absence and providing eligibility requirements for visiting associate judge).
To the contrary, the 2021 general order identifies Judge Devlin as a senior judge sitting by
assignment. See Tex. Gov’t Code §§ 74.054(a)(2), .056(a). Moreover, except for certain
exceptions not applicable here, associate judges may not render final orders, see Tex. Fam. Code
§ 201.007, and it is apparent on the face of the termination decree signed by Judge Devlin that it
is a final order rather than an “associate judge’s report,” see id. § 201.011. Father directs us to
no order appointing Judge Devlin in any capacity other than as a senior judge appointed by the
presiding judge for the Child Protection Court of Hays County. Because Judge Devlin presided
over the bench trial and rendered a final order during his period of assignment and plenary
power, and because Judge Devlin was not an associate judge, Father is not entitled to a de novo
hearing. Accordingly, we overrule Father’s sole appellate issue.
4
Unlike the interlocutory orders signed by Judge McClenahan, which contain notices
about each party’s right to request a de novo hearing of the “Associate Judge’s Report” and
identify Judge McClenahan as “Associate Judge,” the termination order signed by Judge Devlin
contains a notice that it is a “final order” and provides for appeal thereof pursuant to Texas
Family Code Section 263.405. See Tex. Fam. Code § 263.405 (“Appeal of a Final Order”).
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CONCLUSION
We affirm the trial court’s order of termination.
__________________________________________
Thomas J. Baker, Justice
Before Justices Goodwin, Baker, and Triana
Affirmed
Filed: March 29, 2022
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