                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-12-00370-CV

        IN THE INTEREST OF F.B. III, M.B., AND J.B., CHILDREN


                           From the 85th District Court
                               Brazos County, Texas
                         Trial Court No. 11-000439-CV-85


                          MEMORANDUM OPINION


      F.B., appellant, attempts to appeal from the trial court’s order denying F.B.’s

Motion to Set Aside Order Terminating Parental Rights Pursuant to Texas Family Code

Section 161.211(c). The Clerk of this Court notified F.B. by letter dated October 29, 2012

that his appeal was subject to dismissal because it appeared the notice of appeal was

untimely. The Clerk also warned F.B. that the Court may dismiss his appeal unless,

within 21 days from the date of the letter, a response was filed showing grounds for

continuing the appeal.

      F.B. responded by alleging section 161.211 of the Texas Family Code permits him

to attack the order of termination in the manner in which he did, simply by filing his
motion to set aside the judgment in the trial court, within six months from the date the

termination order was signed, and when denied, “timely” filing a notice of appeal from

the date of the denial. We disagree.

        Section 161.211 provides in relevant part:

               Notwithstanding Rule 329, Texas Rules of Civil Procedure, the
        validity of an order terminating the parental rights of a person who has
        been personally served or who has executed an affidavit of
        relinquishment of parental rights or an affidavit of waiver of interest in a
        child or whose rights have been terminated under Section 161.002(b) is not
        subject to collateral or direct attack after the sixth month after the date the
        order was signed.

TEX. FAM. CODE ANN. § 161.211(a) (West 2008). Essentially, F.B.’s argument is that this

statute is an independent method of pursuing a direct appeal from a termination

judgment.

        Although F.B. executed an affidavit of relinquishment of parental rights, we do

not consider his motion to set aside the termination order a proper and timely means of

a direct attack of the termination order. A timely permissible direct attack may include

one pursuant to: 1) Rule 306a of the Texas Rules of Civil Procedure when a party does

not receive notice of the judgment; 2) Rule 329 of the Texas Rules of Civil Procedure

when a party is served by publication and did not appear in person or by attorney; and

3) a bill of review. Section 161.211 does not extend but may shorten the time period

within which to attack the judgment. TEX. FAM. CODE ANN. § 161.211(a) and (b) (West

xxxx); see TEX. R. CIV. P. 306a (90 day time limit); TEX. R. CIV. P. 329(a) (two year time


In the Interest of F.B. III, M.B. and J.B., Children                                      Page 2
limit); Caldwell v. Barnes, 975 S.W.2d 535, 538 (Tex. 1998) (residual four-year statute of

limitations applies to bills of review).

        It appears from the record that F.B.’s counsel timely received notice from the trial

court that the order of termination had been signed. Thus, Rule 306a does not apply to

F.B’s appeal. It does not appear from the record that F.B. was served by publication and

even if he was, he appeared at the final hearing in person and with an attorney. Thus,

Rule 329 does not apply to F.B.’s appeal. Thus, the only possible means of attack

remaining for F.B. was by a bill of review. He did not avail himself to that means

because his motion to set aside the termination order does not constitute a bill of review

and he properly does not attempt to argue that it is. See TEX. R. CIV. P. 329b(f); Caldwell

v. Barnes, 975 S.W.2d 535, 537-538 (Tex. 1998).

        F.B. filed nothing more than what is a routine motion for rehearing which was

untimely. Even if timely, it was not effective in extending the time in which to file a

notice of appeal because this is an accelerated appeal; and such motions do not extend

the time to file a notice of appeal. TEX. R. APP. P. 28.4(a)(1); 28.1(b). F.B. simply filed a

routine notice of appeal. Because the notice of appeal is untimely, having been filed

more than 20 days after the trial court’s judgment was signed, we have no jurisdiction

of this appeal, and it is dismissed.

        Absent a specific exemption, the Clerk of the Court must collect filing fees at the

time a document is presented for filing. TEX. R. APP. P. 12.1(b); Appendix to TEX. R. APP.


In the Interest of F.B. III, M.B. and J.B., Children                                   Page 3
P., Order Regarding Fees (Amended Aug. 28, 2007, eff. Sept. 1, 2007). See also TEX. R.

APP. P. 5; 10TH TEX. APP. (WACO) LOC. R. 5; TEX. GOV’T CODE ANN. §§ 51.207(b); 51.208

(West Supp. 2012); § 51.941(a) (West 2005). Under these circumstances, we suspend the

rule and order the Clerk to write off all unpaid filing fees in this case. TEX. R. APP. P. 2.

The write-off of the fees from the accounts receivable of the Court in no way eliminates

or reduces the fees owed.




                                                       TOM GRAY
                                                       Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Dismissed
Opinion delivered and filed November 29, 2012
[CV06]




In the Interest of F.B. III, M.B. and J.B., Children                                   Page 4
