TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-16-00097-CV
J. L. S., Appellant
v.
Texas Department of Family and Protective Services, Appellee
FROM THE DISTRICT COURT OF COMAL COUNTY, 22ND JUDICIAL DISTRICT
NO. C2014-0467A, HONORABLE DIB WALDRIP, JUDGE PRESIDING
MEMORANDUM OPINION
J.L.S. appeals from the trial court’s order terminating his parental rights to his son
E.G.S.1 Because we conclude that J.L.S. did not file a timely notice of appeal, we will dismiss this
appeal for want of jurisdiction.
The presiding judge of the trial court referred the petition for termination of the
parent-child relationship to an associate judge. At the conclusion of the ensuing bench trial, the
associate judge orally announced her finding that J.L.S.’s parental rights should be terminated.
The associate judge later signed an order terminating J.L.S.’s rights, and the trial court adopted
this recommendation.
J.L.S. filed a series of documents that, he claims, constituted notices of appeal to
this Court. The following timeline shows when these documents were filed:
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We use initials to protect the privacy of those involved in this case. See Tex. Fam. Code
§ 109.002(d).
• June 18, 2015: conclusion of trial and associate judge’s announcement of
findings
• June 19, 2015: J.L.S. files “Appeal of Administrative Order and Petition for
Hearing De Novo”
• June 22, 2015: J.L.S. files “First Amended Appeal of Administrative Order
and Petition for Hearing De Novo”
• July 7, 2015: associate judge signs “Final Order in Suit Affecting the Parent
Child Relationship”
• July 8, 2015: district judge signs “Final Order in Suit Affecting the Parent
Child Relationship” directly below associate judge’s signature
• July 9, 2015: district clerk files “Final Order in Suit Affecting the Parent
Child Relationship”
• July 10, 2015: J.L.S. files “Second Amended Appeal of Administrative Order
and Petition for Hearing De Novo”
• September 3, 2015: J.L.S. files “Third Amended Appeal of Administrative
Order and Petition for Hearing De Novo”
• February 15, 2016: J.L.S. retains new lead counsel
• February 15, 2016: J.L.S. files “Fourth Amended Notice of Appeal”
• February 15, 2016: J.L.S. requests the preparation of the clerk’s record
The order terminating J.L.S.’s parental rights did not become final and appealable
until the district judge signed the order on July 8, 2015. See Graham v. Graham, 414 S.W.3d 800,
801 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (“Associate judges do not have the power to
render final judgment outside the context of certain limited exceptions listed in section 201.007 of
the Family Code.”); see also Tex. Fam. Code § 201.013(b) (providing that, with certain exceptions
not relevant here, associate judge’s order or judgment becomes the order or judgment of the
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referring court “only on the referring court’s signing the proposed order or judgment”). J.L.S. then
had 20 days to file a notice of appeal to this Court. See Tex. R. App. P. 26.1(b). Only one of J.L.S.’s
purported notices of appeal was filed within 20 days after the trial court’s order became final on
July 8—his “Second Amended Appeal of Administrative Order and Petition for Hearing De Novo”
(Second Amended Petition) filed on July 10.2 We must therefore determine whether this document
constituted a notice of appeal to this Court.
The Texas Department of Family and Protective Services argues that J.L.S.’s Second
Amended Petition was not a notice of appeal to this Court but rather a request for a rehearing de novo
before a district court of the associate judge’s order. We agree. It is apparent from its face that J.L.S.’s
Second Amended Petition was not a bona fide attempt to invoke this Court’s jurisdiction. The Second
Amended Petition requests “a hearing to appeal all or part of the administrative order.” It also notes
that J.L.S. “objects to the Associate Court’s ruling terminating his parental rights of his minor son,
[E.G.S.]” and states, “Respondent would show the Appellate Court that CPS’s officials and witnesses
themselves testified and admitted there were unresolved issues regarding the outcry of sexual abuse
to a child made against Respondent . . . .” Finally, in his prayer, J.L.S.’s Second Amended Petition
requests “a Trial De Novo on all issues presented by CPS to the Associate Court and [would] have
the matter transferred to a proper and competent district court in Comal County, Texas.”
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Even if any of J.L.S.’s filings could be construed as a motion for new trial, this would not
extend his appellate deadlines in an accelerated appeal. See Tex. R. App. P. 28.1(b); In re K.A.F.,
160 S.W.3d 923, 927 (Tex. 2005). In addition, even if we consider whether J.L.S.’s “Appeal of
Administrative Order and Petition for Hearing De Novo” or his First Amended Petition were
prematurely filed notices of appeal, see Tex. R. App. P. 27.1(a), these documents do not invoke this
Court’s jurisdiction for the same reasons that the Second Amended Petition fails to invoke our
jurisdiction, as discussed below.
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Although J.L.S.’s Second Amended Petition uses the terms “appeal” and “Appellate
Court,” we conclude that the sole purpose of this document is to seek a de novo rehearing before the
district court. The document never specifies that J.L.S. wishes to appeal the district court’s decision.
Indeed, although it cites the date that the final order (signed by both the associate judge and district
judge) was filed, the Second Amended Petition seems unaware of the district court’s order. This is
evident from the fact that the document specifies that J.L.S. is appealing from the associate judge’s
order and seeks to “have the matter transferred to a proper and competent district court.” Moreover,
although the document specifies that J.L.S. wishes to appeal to a district court, it never states that
he wishes to appeal to this Court, nor does it indicate that his “appeal” is accelerated. See Tex. R.
App. P. 25.1(d)(4) (providing that notice of appeal must “state the court to which the appeal is
taken”), (6) (providing that, “in an accelerated appeal, [notice of appeal must] state that the appeal
is accelerated and state whether it is a parental termination or child protection case”).
In addition, the contrast between J.L.S.’s Second Amended Petition and his “Fourth
Amended Notice of Appeal” is striking. The “Fourth Amended Notice of Appeal” cites Texas Rule
of Appellate Procedure 25.1, is titled a “notice of appeal,” specifies the exact orders J.L.S.’s wishes
to appeal, indicates that appeal is being taken to this Court, and indicates that J.L.S.’s appeal is an
accelerated appeal in a parental-termination or child-protection case. The “Fourth Amended Notice
of Appeal” also states, “Apparently, none of the four prior notices of appeal have been filed there
[in Third Court of Appeals] because no case is found on their website by searching the trial court
cause number above.” J.L.S.’s failure to prosecute his alleged appeal to this Court for many months,
including a failure even to file a docketing statement or record, while not jurisdictional in and of
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itself, bolsters our interpretation that his Second Amended Petition was intended only to pursue a
de novo hearing and not to appeal to this Court.
We conclude that J.L.S.’s Second Amended Petition was not filed in a bona fide
attempt to invoke this Court’s jurisdiction. See In re J.M., 396 S.W.3d 528, 531 (Tex. 2013) (per
curiam) (“We have held that a party complies with Rule 25.1 by making a bona fide attempt to
invoke appellate jurisdiction.”); In re K.A.F., 160 S.W.3d 923, 927 (Tex. 2005) (holding that filing
motion for new trial was not bona fide attempt to invoke appellate court’s jurisdiction). Although
his “Fourth Amended Notice of Appeal” is clearly a notice of appeal seeking to invoke this Court’s
jurisdiction, it is untimely, and we will not read its contents back into a previously filed document.
Because J.L.S. filed no timely notice of appeal to this Court, we dismiss this appeal
for want of jurisdiction. See In re K.M.Z., 178 S.W.3d 432, 433 (Tex. App.—Fort Worth 2005,
no pet.) (“The timely filing of a notice of appeal is jurisdictional in this court, and absent a timely
filed notice or extension request, we must dismiss the appeal.”); see also Tex. R. App. P. 43.2(f).
__________________________________________
Scott K. Field, Justice
Before Justices Puryear, Goodwin, and Field
Dismissed for Want of Jurisdiction
Filed: July 15, 2016
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