                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo

                                         No. 07-14-00344-CV


                                IN RE JOSHUA EPPS, RELATOR

            OPINION ON ORIGINAL PROCEEDING FOR WRIT OF MANDAMUS

                                           October 13, 2014

                                MEMORANDUM OPINION
                   Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

        Pending before the court is Joshua Epps’ petition for writ of mandamus wherein

he requests that we “issue a writ of mandamus directing the Honorable Jim Bob Darnell

to vacate his orders in Cause 2013-506,729, as any action by the district court in that

matter is void.” Through four issues, Epps contends that 1) the trial court erred in

entering temporary orders because it no longer had plenary power over the cause, 2) a

bill of review does not revive jurisdiction, 3) the trial court abused its discretion by

ordering Epps to pay attorney’s fees if he “appeal[ed] that other matter,” and 4) Epps

had no adequate remedy at law because the trial court’s order is void. We deny the

petition for writ of mandamus.1

        1
          Appended to the petition were six tabs. Several of the tabs contained a morass of documents
unaccompanied by an index or table of contents. So, we were left to scroll up, down and through those
tabs to determine their content and the relevance, if any, of the items included. This general, unindexed
tender did little to facilitate disposition of the proceeding, especially since many of the items were
duplicates of others. Given the advent of e-filing, parties would do well to index each separate item
contained in an appendix or otherwise derive a method through which the appendix may be easily
searched.
       Background

       On April 29, 2013, real party in interest, Melissa Jimenez (Jimenez) had her

parental rights terminated to the minor child, R.S.E, per her affidavit relinquishing her

interest in the child.   Via a separate proceeding, Adoption Covenant (an adoption

agency) unsuccessfully sought to terminate Epps’ parental rights to the child.

Thereafter, the trial court appointed Epps as sole managing conservator on July 15,

2013, via a third and independent proceeding that he commenced. Adoption Covenant

had served as the child’s managing conservator until that time.

       On September 4, 2013, Jimenez filed an original petition for bill of review

requesting that the judgment or final order in the termination proceeding be set aside.

Adoption Covenant initially opposed the petition but then filed its own “counter-petition”

for bill of review also requesting that the decree be nullified. The trial court, via written

order, denied the bill of Jimenez but granted that of Covenant on February 18, 2014.

That is, it specified that: “[t]he relief for a Bill of Review as requested by the Counter-

Petitioner ADOPTION COVENANT be GRANTED and that the April 29, 2013 Order of

Termination be set aside and that a new trial be granted.” (Emphasis in original). The

order made no mention of Epps’ conservatorship.

       On March 12, 2014, Jimenez petitioned to modify the parent-child relationship,

and the trial court heard same on September 16th and 17th of 2014. Thereafter, it

orally pronounced temporary orders through which Jimenez was granted visitation to

the child beginning on September 19, 2014. So too was she appointed joint managing

conservator of the child and given the exclusive right to make educational decisions for

the child over whom she had previously relinquished her parental rights. This petition

for writ of mandamus followed before the trial court’s oral pronouncements were


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memorialized in writing. In effect, Epps complains of the decision to grant the child’s

biological mother rights as a conservator and to visitation.

          Analysis

          Epps initially contends that the trial court had no jurisdiction to render an order

granting Jimenez rights of a conservator in Cause Number 2013-506,729. The latter

was the cause through which Covenant attempted to terminate the parental relationship

between Jimenez and the child. As previously mentioned, termination was ordered

through a final judgment that Jimenez did not timely appeal. So, in Epps’ view, the trial

court lost jurisdiction over that proceeding long ago, and orders entered therein after

jurisdiction expired were void. Yet, the mandamus record before us illustrates that the

foregoing cause was consolidated with cause numbers 2013-506,809 and 2013-

507,082 at the behest of Epps. In so consolidating the proceedings, the trial court also

ordered that cause number 2013-506,729 be the controlling number. Cause number

2013-507,082 involved Epps’ effort to be 1) declared father of the child and 2) assigned

managing conservator over his offspring.           Continuing jurisdiction over that dispute

exists.      In re Chester, 398 S.W.3d 795, 802 (Tex. App.—San Antonio 2011, orig.

proceeding) (stating that a trial court has continuing jurisdiction over orders designating

conservatorship). So, given the consolidation order, the trial court does indeed have

jurisdiction to issue orders under cause number 2013-506,729.

          Next, Epps contends that Jimenez lacked standing to obtain any type of

conservatorship over the child because her rights were terminated via a final judgment.

Yet, she petitioned for a bill of review to set aside that final judgment. The effect of the

order granting that petition was to nullify the judgment or order terminating her parental

rights.     Caldwell v. Barnes, 154 S.W.3d 93, 96-98 (Tex. 2004) (stating that an order

granting a bill of review nullifies the judgment being attacked and leaves the parties to
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adjudicate the original controversy). So, because her parental rights to the child have

not been terminated, it cannot be said that she lacks standing to seek and obtain

conservatorship over the child because her parental rights were finally terminated.

       Finally, Epps contends that the trial court abused its discretion in ordering that he

pay Jimenez “$2,500 . . . if you do appeal that other matter.”2 That allegedly chilled his

right to seek relief through a petition for writ of mandamus. Yet, a writ of mandamus is

largely governed by equitable principles. In re Prudential Ins. Co. of America, 148

S.W.3d 124, 138 (Tex. 2004). An appeal is a legal remedy. In re Pannell, 283 S.W.3d

31, 35 (Tex. App.—Fort Worth 2009, orig. proceeding). One is not the other. Ordering

he pay attorney’s fees should an “appeal” of some order be undertaken is not ordering

that he pay Jimenez’ attorney’s fees if he petitions for a writ of mandamus. So, it does

not logically follow that a directive to pay fees if a party eventually “appeals” an issue

when the issues becomes appealable chills the right to seek interim relief through a writ

of mandamus.

       Additionally, a trial court has broad discretion to award reasonable attorney's fees

in matters involving the parent-child relationship (like that here). London v. London, 192

S.W.3d 6, 19 (Tex. App.—Houston [14th Dist.] 2005, pet. denied); TEX. FAM. CODE ANN.

§ 106.002(a)(1) (West 2014) (stating that in a suit under title 5, “the court may render

judgment for reasonable attorney's fees and expenses and order the judgment and

post-judgment interest to be paid directly to an attorney”). And, though the decision to

award fees to a prevailing party under that statute is discretionary, In the Interest of

Pecht, 874 S.W.2d 797, 803 (Tex. App—Texarkana 1994, no writ), fees may also be

awarded an unsuccessful party, depending upon the circumstances. See London v.


       2
         What the “other matter” means was not defined. Nor do we have before us a written order
signed by the trial court purporting to explain what was meant.
                                                      4
London, 192 S.W.3d at 19 (stating that “[a]ttorney's fees rendered in the prosecution or

defense of a suit affecting the parent-child relationship may be awarded as necessaries

to the child, even where the fees are incurred by the unsuccessful party” if warranted by

good cause); accord Nichol v. Nichol, No. 07-12-00035-CV, 2014 Tex. App. LEXIS 492,

at *13-14 (Tex. App.—Amarillo 2014, no pet.) (stating that attorney’s fees cannot be

awarded an unsuccessful party absent good cause).         So, to the extent that Epps

suggests that the trial court abused its discretion because it may not award appellate

fees irrespective of whether Jimenez prevailed, he is mistaken. More importantly, he

says nothing about why good cause would not support the assessment here.

      Finally, by our rejection of his contentions regarding jurisdiction and standing,

Jimenez prevailed in this mandamus. Assuming arguendo that the trial court’s award of

fees if Epps appealed those decisions encompassed review via a writ of mandamus, we

cannot conclude that the trial court abused its discretion.       Again, it may award

reasonable fees to a prevailing party.

      Accordingly, we deny Epps’ petition for writ of mandamus.



                                                      Brian Quinn
                                                      Chief Justice




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