                                  In The
                             Court of Appeals
                    Seventh District of Texas at Amarillo

                                   No. 07-13-00082-CV


                  IN THE INTEREST OF K.E. AND R.E., CHILDREN

                          On Appeal from the 47th District Court
                                 Armstrong County, Texas
                 Trial Court No. 2374, Honorable Dan L. Schaap, Presiding

                                     June 11, 2013

                                        ORDER
                Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


      This is an accelerated appeal of a final order that appointed appellee the Texas

Department of Family and Protective Services permanent managing conservator of

minors K.E. and R.E., and appointed their mother M.E. and their father S.E. possessory

conservators.   Both parents appealed.1      Before the Court is a joint motion under

appellate rule 42.1(a)(2)(A)2 in which the Department, the mother, and the attorney ad


      1
         The appeal of the father was involuntarily dismissed under appellate rule
42.3(a),(c).
      2
        Under appellate rule 42.1(a)(2)(A) an appellate court may dispose of a case
according to the agreement of the parties by rendering judgment effectuating the
agreement. Tex. R. App. P. 42.1(a)(2)(A).
litem for the children ask that we render judgment reversing the final order and

dismissing the case. As we read the motion, the movants’ request is predicated on a

finding of reversible error by the trial court. Because we do not agree the record reflects

the reversible error the movants perceive, we will deny the motion as presented.


       In the trial court, the original dismissal date of March 12, 2012, was extended by

order pursuant to Family Code section 263.401(b) until September 8, 2012. Tex. Fam.

Code Ann. § 263.401(b) (West 2008). The case was tried August 6 through 8, 2012.

After all parties rested and closed, the trial court announced it was denying termination

of the parental rights of the father and mother and was taking issues of conservatorship

under advisement.


       On September 7, 2012, the court signed an order for monitored return of the

children to the mother. In the opinion of the movants, the substance of this order does

not sufficiently comport with Family Code section 263.403 and the trial court’s

jurisdiction was, accordingly, not perpetuated.3     The order for monitored return set

February 26, 2013, as a new dismissal date.


       The trial court modified the order for monitored return after hearings in October,

November, and December 2012. The mother filed a motion to dismiss on February 11,


       3
         Section 263.403(a) permits a trial court to retain jurisdiction and not dismiss the
suit or enter a final judgment if it renders a temporary order that, among other things,
orders the Department to return the child to his parent. Here the court’s order of
monitored return did not require the immediate return of the children to the mother.
Instead, her contact with the children was progressively increased according to a
transition schedule attached to the order. Under the schedule, the children’s full-time
placement with the mother would begin on November 4. Our disposition of the motion
before us does not require that we consider whether the trial court’s order complies with
section 263.403(a), and we express no opinion on that question.

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2013, asserting in part that the order for monitored return was insufficient to extend the

dismissal deadline. On February 28, the trial court signed the final order appointing the

Department permanent managing conservator and the mother and the father

possessory conservators.


       Family Code section 263.401(c) provides:


       If the court grants an extension [under section 263.401(b)] but does not
       commence the trial on the merits before the required date for dismissal
       under Subsection (b), the court shall dismiss the suit. The court may not
       grant an additional extension that extends the suit beyond the required
       date for dismissal under Subsection (b).
Tex. Fam. Code Ann. § 263.401(c) (West 2008).


In pertinent part, Family Code section 263.402 provides:


       A party to a suit under this chapter who fails to make a timely motion to
       dismiss the suit under this subchapter waives the right to object to the
       court’s failure to dismiss the suit. A motion to dismiss under this
       subsection is timely if the motion is made before the trial on the merits
       commences.
Tex. Fam. Code Ann. § 263.402(b) (West 2008).


       The record seems clear to us that trial on the merits commenced on August 6,

2012, a date within the initial 180-day extension period authorized by section

263.401(b).     Implicit in the movants’ position is the notion that the trial court was

statutorily required to sign a final order within that initial 180-day extension period. But

under the current, applicable version of section 263.401(c), it is the commencement of

trial, not the rendering of a final order, that must occur during the extension period. 4



       4
           The former version of section 263.401(c) provided:


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Accordingly, we cannot agree that the trial court’s jurisdiction over the case at the time it

signed the February 28 final order depends on the monitored return order of September

7.


       The circumstances under which we may dispose of an appeal by agreement of

the parties are set forth in appellate rule 42.1(a)(2). As noted, we construe the movants’

request to be dependent on a finding of reversible error. Rule 42.1 “does not permit an

appellate court to order a new trial merely on the agreement of the parties absent

reversible error, or to vacate a trial court’s judgment absent reversible error or a

settlement.” Notes and Comments, Tex. R. App. P. 42.1; see In re Z.A.S., 07-09-0136-

CV, 2009 Tex. App. Lexis 5797 (Tex.App.--Amarillo, July 22, 2009, per curiam order); In

re J.A.B., No. 08-06-0201-CV, 2007 Tex. App. Lexis 6312 (Tex.App.--El Paso Aug. 9,

2007, no pet.) (mem. op.); cf. In re A.D.G., 07-12-0021-CV, 2012 Tex. App. Lexis 4298

(Tex.App.--Amarillo May 30, 2012, per curiam order) (remanding for a new trial on the

agreed motion of the parties as the appellee’s concession of error was supported by the

clerk’s record). Because we do not agree the record reflects the reversible error the

movants apparently perceive, we must deny the movants’ motion as presented.


       If the court grants an extension but does not render a final order or
       dismiss the suit on or before the required date for dismissal under
       Subsection (b), the court shall dismiss the suit. The court may not grant an
       additional extension that extends the suit beyond the required date for
       dismissal under Subsection (b). (emphasis ours)

See Act of May 28, 1997, 75th Leg., R.S., ch. 600, § 17, 1997 Tex. Gen. Laws 2108,
2112; Act of May 28, 1997, 75th Leg., R.S., ch. 603, § 12, 1997 Tex. Gen. Laws 2119,
2123; Act of May 31, 1997, 75th Leg. R.S., ch. 1022, § 90, Tex. Gen. Laws 3733, 3768
amended by Act of May 27, 2007, 80th Leg., R.S., ch. 866 § 2, 2007 Tex. Gen. Laws
1837, 1838. See also In re K.F., 351 S.W.3d 108, 113-14 (Tex.App.--San Antonio
2011, no pet.) (quoting former version of statute and noting nothing in current version of
Family Code requires rendition of a final order before dismissal date).

                                             4
       If, however, we have misconstrued the movants’ intention, and they simply have

reached a settlement of the case and desire a disposition of the appeal not dependent

on a finding of reversible error, the Court would entertain a joint motion for rehearing

making that intention clear. In that regard, the parties are encouraged to give close

attention to appellate rules 42.1 and 43.2. Such a motion for rehearing, if filed, shall be

filed within seven days of the date of this order.


       If the appeal is to remain on the Court’s docket, its accelerated status must be

observed. The mother’s brief has been filed. The brief of the Department as appellee is

past due. If the Department wishes to file a brief, it shall do so within ten days of the

date of this order.


       It is so ordered.




                                                     Per Curiam




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