             OPINION ON APPELLANTS’ MOTION FOR REHEARING

                                         No. 04-07-00656-CV

                    IN THE INTEREST OF H.G., K.G., J.G., and T.G., Children

                    From the 25th Judicial District Court, Guadalupe County, Texas
                                     Trial Court No. 05-1912-CV
                            Honorable W. C. Kirkendall, Judge Presiding

Opinion by: Steven C. Hilbig, Justice
Dissenting Opinion by: Alma L. López, Chief Justice

Sitting:          Alma L. López, Chief Justice
                  Phylis J. Speedlin, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: June 11, 2008

AFFIRMED; APPELLANTS’ MOTION FOR REHEARING DENIED

           On April 23, 2008, we issued an opinion and judgment affirming the trial court’s judgment.

Appellants Deborah and Donald Glynn have filed a motion for rehearing. We deny the motion but

withdraw our April 23, 2008 opinion and issue this opinion in its place. Our April 23, 2008

judgment remains unchanged.

           This is an appeal from a trial court’s dismissal of a petition in intervention for lack of

standing. The only issue is whether the trial court properly concluded that the defense of estoppel

or quasi-estoppel is inapplicable when the Texas Legislature has declined to confer standing on a

party and, in fact, has statutorily precluded such standing. We affirm the trial court’s decision.
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                                                    BACKGROUND

         The parental rights of the biological parents of H.G., K.G., J.G., and T.G. (“the children”)

were terminated. Before the termination Donald and Deborah Glynn, who are the biological

maternal grandparents of the children, were named managing conservators. After the termination,

Lori and Bruce Gibbens adopted the children with the Glynns’ consent. In November of 2005, more

than two years after the final adoption, Lori Gibbens filed for divorce and a final decree was entered

in March of 2006. The decree named the Gibbenses joint managing conservators of the children.

         Approximately eight months after the final decree was entered, the Glynns filed an

“Intervenor’s [sic] Petition for Modification of Parent-Child Relationship to Provide Grandparent

Access”1 by which they sought an order permitting them “possession of or access to the children.”

The Glynns claimed the Gibbenses secured the Glynns’ consent to the adoption by promising the

Glynns could continue visitation with the children after the adoption. Lori Gibbens filed a motion

to strike the intervention, contending the Glynns lacked standing and there was no basis in law for

their argument regarding quasi-estoppel.

         A hearing was held before the trial court. Following the hearing, the trial court found that

even if the Gibbenses promised the Glynns continued visitation with the children and even allowed

visitation in the past, the Glynns had no standing to bring the action. In its order the trial court stated



         1
           … Though styled as an intervention, this was actually an original suit by the Glynns seeking access. An
intervention is an equitable motion filed by a nonparty voluntarily seeking to become a party in a pending suit to protect
the nonparty’s own rights. State and County Mut. Fire Ins. Co. v. Kelly, 915 S.W .2d 224, 226 n.1 (Tex. App.–Austin
1996, no writ); see T EX . R. C IV . P. 60. An intervention must generally be filed before entry of judgment; if filed after
judgment, it may not be considered unless and until the judgment has been set aside. Terrazas v. Ramirez, 829 S.W .2d
712, 735 (Tex. 1991) (citing First Alief Bank v. White, 682 S.W .2d 251, 252 (Tex. 1984)); Express-News Corp. v.
Spears, 766 S.W .2d 885, 889 (Tex. App.–San Antonio 1989, orig. proceeding [leave denied]). By the time the Glynns
filed their “intervention,” the decree of divorce was a final judgment and had not been set aside. Accordingly, there was
no pending suit in which the Glynns could intervene.

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that the Glynns’ theories of estoppel or quasi-estoppel were inapplicable even if the facts as alleged

were true. The trial court dismissed the Glynns’ intervention for lack of standing and the Glynns

perfected this appeal.

                                             ANALYSIS

       Because the Glynns were managing conservators at the time of the adoption, their consent

was part of the adoption process. See TEX . FAM . CODE ANN . § 162.010 (Vernon 2002). The Glynns

claim that but for the Gibbenses’ representations that they would be permitted on-going visitation,

they would not have consented to the adoption. Accordingly, when the promised visitations were

discontinued by the Gibbenses, the Glynns filed suit seeking continued access. Failing to include

any statutory standing allegations in their petition in intervention, the Glynns argued:

       Under the principles of estoppel and quasi-estoppel, [Lori] should be estopped from
       denying that [the Glynns] have standing to ask for access to these children, because
       [Lori] promised [the Glynns] that they would continue to have a relationship with the
       children, and [the Glynns] acted on that promise to their detriment. Furthermore,
       [Lori] has continued to allow [the Glynns] to have limited contact with the children,
       and it would not be in the children’s best interest to discontinue that contact.

       In this appeal, the Glynns assert the trial court erred in concluding their theory of estoppel

or quasi-estoppel was inapplicable and could not confer standing in this matter. The Glynns argue

the trial court had the equitable authority to estop the Gibbenses from asserting an absence of

standing because they made misrepresentations to the Glynns to secure the consent to the adoption

and without the Glynns’ consent the adoption may have not occurred.

       In her motion to strike the Glynns’ intervention, Lori Gibbens contended that section 153.434

of the Texas Family Code precluded the Glynns’ suit:




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               A biological or adoptive grandparent may not request possession of or access
       to a grandchild if:

               (1) each of the biological parents of the grandchild has:

                                              *   *     *

                       (B) had the person’s parental rights terminated . . . and

              (2) the grandchild has been adopted, or is subject of a pending suit for
       adoption, by a person other than the child’s stepparent.

TEX . FAM . CODE ANN . § 153.434 (Vernon Supp. 2007). Lori Gibbens also argued there was no

authority, statutory or common law, to permit the trial court to use estoppel or quasi-estoppel in this

matter. She essentially makes these same arguments in response to the Glynns’ appeal.

       “When standing has been statutorily conferred, the statute itself serves as the proper

framework for a standing analysis.” Everett v. TK-Taito, L.L.C., 178 S.W.3d 844, 851 (Tex.

App.–Fort Worth 2005, no pet.); see Tex. Dep’t of Prot. and Regulatory Servs. v. Sherry, 46 S.W.3d

857, 861 (Tex. 2001) (reviewing applicable standing provisions in Texas Family Code to determine

whether purported father had standing); In re H.C.S., 219 S.W.3d 33, 34-35 (Tex. App.–San Antonio

2006, no pet.) (holding that to determine whether sperm donor had standing to file suit to adjudicate

parental rights under Family Code, court was required to engage in statutory construction of relevant

provisions of Code). The party seeking relief must allege and establish standing within the

parameters of the language used in the statute. Everett, 178 S.W.3d at 851 (citing Scott v. Bd. of

Adjustment, 405 S.W.2d 55, 56 (Tex. 1966)). The Texas Legislature has provided a comprehensive

statutory framework for standing in the context of suits involving the parent-child relationship. See

TEX . FAM . CODE ANN . §§ 102.003, 102.004, 102.0045, 102.005 and 102.006 (Vernon Supp. 2007).




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The Legislature has precluded standing in suits such as this. Id. § 153.4342; cf. § 102.004(b)

(stating that original suit requesting possessory conservatorship may not be filed by grandparent or

other person). The Glynns cannot demonstrate statutory standing under any provision of the Texas

Family Code and are statutorily barred from pursuing this action. Hence, their quasi-estoppel

argument.

         We recognize that courts, including this court, have applied the doctrine of estoppel or quasi-

estoppel in various contexts, including suits relating to the parent-child relationship. See, e.g., In re

A.L.G., 229 S.W.3d 783, 787 (Tex. App.–San Antonio 2007, no pet.) (applying doctrine of quasi-

estoppel to bar ex-wife from recovering child support arrearage); Hausman v. Hausman, 199 S.W.3d

38, 42-43 (Tex. App.–San Antonio 2006, no pet.); In re Shockley, 123 S.W.3d 642, 651-53 (Tex.

App.–El Paso 2003, no pet.) (applying equitable estoppel to preclude mother from litigating child’s

parentage). And, in Hausman, we held, in the context of paternity and citing a supreme court case

involving copyright infringement and trade secret misappropriation, a trial court can apply equitable

principles to estop a defendant from relying on a statutory bar to recovery. 199 S.W.3d at 43 (citing

Computer Assocs. Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453, 456 (Tex. 1996)). However, neither

Hausman nor any of the other cases relied upon by the Glynns have held that estoppel can be used

to confer standing where none exists under the legislative framework.

         Standing is not merely a “statutory bar.” Rather, standing is a component of subject matter

jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444-45 (Tex. 1993).

Subject matter jurisdiction “‘involves a court’s power to hear a case.’” Tellez v. City of Socorro, 226


         2
           … Section 102.004, which governs standing for grandparents, specifically provides that possession of or access
to a child by a grandparent is governed by the standards in Chapter 153, which would include the prohibition in section
153.434. T EX . F AM . C O D E A N N . § 102.004(c) (Vernon Supp. 2007).

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S.W.3d 413, 413 (Tex. 2007) (quoting U.S. v. Cotton, 535 U.S. 625, 630 (2002)). For a court to act,

it must have subject matter jurisdiction. See Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex.

1990). Any judicial action by a court without jurisdiction is void. Id. Subject matter jurisdiction

exists by operation of law and cannot be conferred or taken away by consent or waiver. Tex. Ass’n

of Bus., 852 S.W.2d at 444-45; Fed. Underwriters Exch. v. Pugh, 141 Tex. 539, 174 S.W.2d 598,

600 (1943). Nor can subject matter jurisdiction be conferred by estoppel. Taub v. Aquila S.W.2d.

Pipeline Corp., 93 S.W.3d 451, 461 (Tex. App.–Houston [14th Dist.] 2002, no pet.). An absence

of standing deprives the trial court of subject matter jurisdiction and renders any trial court action

void. Id.

       Consequently, while equity may estop a party from relying on a mere statutory bar to

recovery, it cannot confer jurisdiction where none exists. See Tex. Ass’n of Bus., 852 S.W.2d at 444-

45; Taub, 93 S.W.3d 461. If the Texas Legislature has not conferred subject matter jurisdiction on

a trial court, the courts cannot mindlessly produce that result based on equity. Accordingly, we hold

the cases relied upon by the Glynns and other cases using equity to preclude application of statutory

or other bar to suit or recovery, including Hausman, are distinguishable and inapplicable because

they do not bear on a court’s jurisdiction.

       The dissent relies upon the principal of quasi-estoppel to suggest the Glynns have standing

in this matter. To support its contention, the dissent first declares that “this court’s equity

jurisdiction can be used to estop a party from arguing that another party lacks standing.” In support

of this statement the dissent cites Eckland Consultants, Inc. v. Ryder, Stilwell Inc., 176 S.W.3d 80

(Tex. App.–Houston [1st Dist.] 2004, no pet.) and Paradigm Oil, Inc. v. Retamco Operating, Inc.,

242 S.W.3d 67 (Tex. App.–San Antonio 2007, pet. filed). In Eckland Consultants, the court held


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a party was estopped from arguing an absence of standing because it had accepted benefits under the

contract it was attempting to use to deny standing. 176 S.W.3d at 87-88. In Paradigm Oil, this court

held that where all allegations in a petition, including those that established standing, were deemed

admitted as a result of a default judgment, the defaulting party was estopped from denying the

plaintiff’s standing. 242 S.W.3d at 71-72. Neither Eckland Consultants nor Paradigm Oil holds that

estoppel can confer standing, i.e., subject matter jurisdiction where none exists. While estoppel may

preclude parties from arguing facts that negate standing, it cannot confer jurisdiction. See Tex. Ass’n

of Bus., 852 S.W.2d at 444-45; Taub, 93 S.W.3d 461.

       The dissent also challenges the majority’s statement that the Glynns’ consent “was part of

the adoption process,” seemingly suggesting the adoption could not have proceeded without it and

the Glynns are therefore entitled, under principles of equity, to standing in this matter. We

respectfully disagree with the dissent’s interpretation of section 162.010. Section 162.010, while

entitled “Consent Required” and stating “the written consent of a managing conservator to the

adoption must be filed,” also provides that the court can waive the consent requirement if, in addition

to other factors, the court finds “the consent is being refused or has been revoked without good

cause.” TEX . FAM . CODE ANN . § 162.010 (Vernon 2002). Clearly, the trial court could have

approved the adoption without the Glynns’ consent under the appropriate circumstances.

       Finally, we agree with the dissent that the Glynns had standing before the adoption to seek

continued possession and access to the children. See TEX . FAM . CODE ANN . § 153.433 (Vernon

Supp. 2007) (allowing court to order reasonable access to grandchild by grandparent if at the time

relief is requested at least one biological or adoptive parent has not had his or her parental rights

terminated). However, we disagree with the dissent’s suggestion that because they did not avail


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themselves of such remedy purportedly due to the Gibbenses’ alleged representations, equity

mandates a continuation of their pre-adoption standing. As recognized in Bowers v. Matula, 943

S.W.2d 536, 539 (Tex. App.–Houston [1st Dist.] 1997, no writ), the Legislature has created a

mechanism for grandparents in the Glynns’ situation to seek continued access to their grandchildren.

See id. However, section 154.433, coupled with section 153.434, establishes “a bright line before

which a grandparent’s request for access of a grandchild may be made and after which it may not.”

Bowers, 943 S.W.2d at 539 (emphasis added). Because the Glynns did not avail themselves of this

statutory remedy, their standing is statutorily precluded. See TEX . FAM . CODE ANN . § 153.434

(Vernon Supp. 2007).

                                            CONCLUSION

       Whether the Glynns have standing under the Texas Family Code must be determined under

the Texas Family Code. See Sherry, 46 S.W.3d at 861; H.C.S., 219 S.W.3d at 34-35; Everett, 178

S.W.3d at 851. Because they do not have standing and because estoppel cannot be used to confer

jurisdiction, the trial court did not err in dismissing the Glynns’ petition in intervention. See TEX .

FAM . CODE ANN . § 153.434 (Vernon Supp. 2002); see also Tex. Ass’n of Bus., 852 S.W.2d at 444-

45. Accordingly, we affirm the trial court’s judgment.



                                                        Steven C. Hilbig, Justice




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