NUMBER 13-23-00040-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN THE INTEREST OF A.C.T.M., A CHILD
On appeal from the 430th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Longoria, and Tijerina
Memorandum Opinion by Justice Longoria
Appellant, M.T.M., attempts to appeal a judgment signed on January 20, 2023,
terminating her parental rights to A.C.T.M. 1 Appellant filed her notice of appeal in the trial
court on January 31, 2023. On May 16, 2023, the Clerk of this Court notified appellant
that it appeared that: (1) the notice of appeal was untimely, and (2) the notice of appeal
did not comply with Texas Rules of Appellate Procedure 9.1(b), 25.1(d)(6), or 25.1(d)(8).
1We refer to appellant and the child by their initials in accordance with the rules of appellate
procedure. See TEX. R. APP. P. 9.8(b)(2).
See TEX. R. APP. P. 9.1(b), 25.1(d)(6), 25.1(d)(8). The Clerk informed appellant that, if
these defects were not cured within ten days from the date of receipt of that notice, the
appeal would be dismissed. Appellant filed a response on May 18, 2023. On the same
day, this Court requested the appellee, the Texas Department of Family and Protective
Services (Department) to respond to appellant’s response. The Department filed a
response on May 30, 2023. We conclude that appellant attempts to appeal a void
judgment and therefore dismiss the appeal for lack of jurisdiction.
“A judicial decree is final when it disposes of all issues and all parties in the record.”
In re. R.R.K., 590 S.W.3d 535, 540 (Tex. 2019) (citing Lehmann v. Har-Con Corp., 39
S.W.3d 191, 195 (Tex. 2001)). “When an order ‘finally disposes of all claims and all
parties’ in ‘clear and unequivocal language,’ it is a final order.” Id. (citing In re Elizondo,
544 S.W.3d 824, 827–28 (Tex. 2018) (origi. proceeding) (per curiam)). In addition, if no
motion for new trial or motion to modify the judgment is filed, the trial court retains plenary
power to vacate, modify, correct, or reform its judgment for thirty days after the judgment
is signed. TEX. R. CIV. P. 329b(d), (e), (g). If the judgment is modified while the trial court
has plenary power, the appellate timetable is restarted when the new judgment is signed.
Id. R. 329b(h). However, any modified, corrected, or reformed judgment signed after the
trial court’s plenary power has expired is a nullity. See State ex rel. Latty v. Owens, 907
S.W.2d 484, 485 (Tex. 1995) (per curiam) (“Judicial action taken after the court’s
jurisdiction over a cause has expired is a nullity.”).
A timely notice of appeal invokes this Court’s jurisdiction. TEX. R. APP. P. 25.1,
26.1; see Garza v. Hibernia Nat. Bank, 227 S.W.3d 233 (Tex. App.—Houston [1st Dist.]
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2007, no pet.). Notice of appeal of a judgment which terminates the parent-child
relationship, as an accelerated appeal, must be filed within twenty days after the final
judgment or order is signed. TEX. FAM. CODE ANN. § 109.002(a); TEX. R. APP. P. 26.1(b).
A motion for extension of time to file the notice of appeal is necessarily implied when an
appellant, acting in good faith, files a perfecting instrument beyond the time allowed but
within the fifteen-day period within which the appellant would be entitled to move to extend
the filing deadline. Verburgt v. Dorner, 959 S.W.2d 615, 616–617 (Tex. 1997). However,
an appellant must provide a reasonable explanation for the late filing: it is not enough to
simply file a notice of appeal. See Woodard v. Higgins, 140 S.W.3d 462, 462 (Tex. App.—
Amarillo 2004, no pet.); see also In re B.G., 104 S.W.3d 565, 567 (Tex. App.—Waco
2002, no pet). This appeal leads us to question whether we have jurisdiction to decide
the merits of this appeal. See Freedom Commc’ns, Inc. v. Coronado, 372 S.W.3d 621,
623 (Tex. 2012) (providing that appellate courts have no jurisdiction to address the merits
of appeals from judgments that are void).
In this case, the trial court referred the termination proceeding to an associate
judge. Following a hearing, the associate judge signed its “Order of Termination” on July
14, 2022, which, among other things, terminated the parental rights of appellant to
A.C.T.M. Appellant timely filed a request for a “de novo trial” before the referring trial court.
See TEX. FAM. CODE ANN. § 201.015.
The de novo stage of a parental termination proceeding differs from a trial de novo
in any other case. Here, it is merely a hearing before a different tribunal and not a true
“trial de novo”—a complete retrial on all issues. See In re A.L.M.-F., 593 S.W.3d 271,
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277–80 (Tex. 2019). It is simply a “mechanism for reviewing an associate judge’s merits
adjudications.” Id. at 279. “Parties must specify the specific issues presented to the
referring court.” Id. at 280. (citing TEX. FAM. CODE ANN. § 201.015(b)). “Issues not
specified need not be reviewed.” Id. (citing TEX. FAM. CODE ANN. § 201.015(b)). “The
intention of section 201.015(b) is to limit the appealing party’s ability to raise new issues
he has not specifically appealed in the de novo hearing.” Legarreta v. Alvidrez, 631
S.W.3d 546, 549 (Tex. App.—El Paso 2021, no pet.) (citing Chacon v. Chacon, 222
S.W.3d 909, 913 (Tex. App.—El Paso 2007, no pet.)). However, there is nothing in the
statute that precludes a party from requesting review of all issues that were raised in the
trial on the merits. See In re L.R., 324 S.W.3d 885, 890 n.5 (Tex. App.—Austin 2010, orig.
proceeding) (construing a request for de novo hearing as raising all issues). “Witnesses
may only be presented on the specified issues, but the referring [trial] court may also
consider the record from the associate judge sua sponte.” In re A.L.M.-F., 593 S.W.3d at
280 (citing TEX. FAM. CODE ANN. § 201.015(c)). “Participation in, or waiver of, a de novo
hearing is without prejudice to ‘the right of a party to file a motion for new trial, motion for
judgment notwithstanding the verdict, or other post-trial motion.’” Id. (citing TEX. FAM.
CODE ANN. § 201.015(h)). “In short, a de novo hearing is not an entirely new and
independent action, but instead, is an extension of the original trial on the merits.” Id.
In this case, the associate judge’s order of termination specifically found by clear
and convicing evidence that appellant had:
6.2.1. knowingly placed or knowingly allowed [A.C.T.M.] to remain in
conditions or surroundings which endanger the physical or emotional well-
being of the child, pursuant to 161.001(b)(l)(D), Texas Family Code;
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6.2.2. engaged in conduct or knowingly placed [A.C.T.M.] with persons who
engaged in conduct which endangers the physical or emotional well-being
of the child, pursuant to 161.001(b)(l)(E), Texas Family Code.
6.2.3. Termination is in the best interest of [A.C.T.M.].
The termination order also, among other things, appointed the Department as A.C.T.M.’s
permanent managing conservator and terminated the parental rights of A.R.R., the
alleged father, and “Unknown Father”. In her request for a de novo hearing, appellant
stated she “desired to appeal from all portions of the judg[]ment, specifically, but not
limited to” the associate judge’s findings related to (1) the statutory grounds of termination
and that (2) termination was in the best interest of the child. See TEX. FAM. CODE ANN.
§ 201.015(b); In re A.L.M.-F., 593 S.W.3d at 280; In re L.R., 324 S.W.3d at 890 n.5.
On October 24, 2022, the trial court conducted its de novo hearing and considered
the record of the bench trial before the associate judge. The parties did not present further
witnesses. The trial court orally pronounced its ruling “affirm[ing] the decision of [the
associate judge]” and terminated appellant’s parental rights to A.C.T.M. On the same day,
appellant filed a notice of appeal of the trial court’s oral order, which initiated the first
appeal involved in this case. See In re A.C.T.M., No. 13-22-00517-CV, 2023 WL 105116,
*1 (Tex. App—Corpus Christi–Edinburg Jan. 5, 2023, no pet.) (mem. op.). The District
Clerk filed the Clerk’s record in this Court for the first appeal on November 3, 2022. A few
days later, on November 8, 2022, the trial court signed a written order terminating the
parental rights of appellant. The trial court’s November 8, 2022 order of termination was
not contained in the Clerk’s record; thus, the existence of this order was unknown to this
Court.
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We dismissed appellant’s first appeal for want of jurisdiction as the record did not
contain a final, appealable order. See id. We explained that on December 1, 2022, the
Clerk of this Court notified appellant of this defect so that steps could be taken to correct
the defect. See id. (citing TEX. R. APP. P. 37.1, 42.3.). Appellant was advised that the
appeal would be dismissed for want of jurisdiction if the defect was not corrected within
ten days from the date of receipt of the notice. Appellant did not respond to this Court’s
notice. In addition, we explained that the District Court Clerk informed the Clerk of this
Court that there were no signed orders or judgments memorializing the trial court’s
October 24, 2022 oral pronouncement of its ruling. Accordingly, we dismissed appellant’s
first appeal for want of jurisdiction as we were required to do. See id.
When a de novo hearing of a parental termination case has been held in the
referring court, a signed order or judgment by the referring court is required to invoke the
jurisdiction of this Court. See TEX. FAM. CODE ANN. § 201.016(b). Absent exceptions not
applicable to this case, “the date an order or judgment by the referring court is signed is
the controlling date for purposes of appeal.” See id. § 201.016(b), (c). The referring trial
court signed its “Order as to [appellant’s] De Novo Trial” on November 8, 2022. In this
order, the trial court expressed the following:
On October 24, 2022, afier reviewing all the evidence, to include the zoom
video recordings of the termination trial before the Associate Judge,
available transcripts, and exhibits, the COURT HEREBY SUSTAINS and
AFFIRMS the Order of Termination as granted by the Associate Judge on
June 28, 2022 and signed on July 14, 2022 and July 11, 2022 as
to . . . [appellant].
The Court finds by clear and convincing evidence that termination of
the parent-child relationship between [appellant] and the child the subject
of this suit is in the child’s best interest.
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Further, the Court finds by clear and convincing evidence that
[appellant] has:
knowingly placed or knowingly allowed the child to remain in
conditions or surroundings which endanger the physical or emotional welI-
being ofthe child, pursuant to 161.001(b)(1)(D), Texas Family Code; and
engaged in conduct or knowingly placed the child with persons who
engaged in conduct which endangers the physical or emotional well-being
of the child, pursuant to 161. 001 (b)(1)(E), Texas Family Code.
Termination is in the best interest of the child.
IT IS THEREFORE ORDERED that the parent—child relationship
between [appellant] and the child the subject of this suit is TERMINATED.
A final judgment is attached as Exhibit A and incorporated by
reference and adopted as the final order of this Court as to . . . [appellant].
The November order further states that “The Order of Termination signed July 11, 2022
and July 14, 2022 as to Respondents, [A.R.R.], alleged father, and the Unknown Father,
remain final and were not subject to [d]e [n]ovo [a]ppeal.”
Though the November order references an attached “Exhibit A” that is not found
in the Clerk’s Record before us, we nevertheless hold that it clearly and unequivically
“disposes of all issues and all parties in the record[.]” In re. R.R.K., 590 S.W.3d at 540.
The November order expressly states that it sustains and affirms the associate judge’s
order of termination as to appellant. Furthermore, the November order specifically found,
by clear and convincing evidence, the same grounds of termination and that termination
was in the best interest of A.C.T.M. as espoused in the associate judge’s order of
termination. There were no other pending issues that needed to be disposed. Thus, we
find the November 8, 2022 order to be final.
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More than sixty days later, the trial court rendered a subsequent order terminating
the parental rights of appellant on January 20, 2023. Appellant’s January 31, 2023 notice
of appeal specifically attempts to appeal the trial court’s January 20, 2023 order. In this
case, no motion extending the trial court’s plenary power was filed after the trial court
rendered its November 8, 2022 final order; therefore, the trial court’s subsequent January
20, 2023 order was signed well after the trial court lost plenary power and is a nullity. See
TEX. R. CIV. P. 329a; Latty, 907 S.W.3d at 485. Because the trial court’s November 8,
2022 order was final and started the appellate timetable, appellant’s notice of appeal was
due within twenty days after that order was signed or after a motion for extension of time
was due fifteen days later. See TEX. R. APP. P. 26.1(b), 28.1(b), 26.3; Verbugt, 959
S.W.2d at 615. Appellant’s January 31, 2023 notice of appeal specifically attempts to
appeal the January 20, 2023 order, which is void. See Freedom Commc’ns, 372 S.W.3d
at 623. Accordingly, we lack jurisdiction over this appeal, and we dismiss it for want of
jurisdiction.
NORA L. LONGORIA
Justice
Dissenting Memorandum Opinion by
Justice Benavides.
Delivered and filed on the
15th day of June, 2023.
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