Petition for Writ of Mandamus Denied and Opinion filed October 6, 2016.




                                     In The

                    Fourteenth Court of Appeals

                               NO. 14-16-00622-CV

      IN RE THE OFFICE OF THE ATTORNEY GENERAL, Relator


                         ORIGINAL PROCEEDING
                           WRIT OF MANDAMUS
                              311th District Court
                             Harris County, Texas
                       Trial Court Cause No. 2015-39181

                        MEMORANDUM OPINION

      On June 6, 2016, the associate judge of the 311th District Court of Harris
County, Texas issued an order in a suit to modify the parent–child relationship.
The Order implemented a mediated settlement agreement by the father and the
mother and ordered relator, the Office of the Attorney General of Texas (OAG), to
reimburse the father for child-support payments already remitted to the mother and
to provide notice of a zero child- support arrearage judgment to three credit
agencies.
      On August 9, 2016, the OAG filed a petition for writ of mandamus in this
court. See Tex. Gov’t Code Ann. § 22.221 (West 2004); see also Tex. R. App. P.
52. In the petition, the OAG asks this court to compel the Honorable Alicia
Franklin York, presiding judge of the 311th District Court of Harris County, to
vacate the part of the Order pertaining to the OAG.

        In its first issue, the OAG argues that the trial court lacked jurisdiction over
it because it was not served with citation and the motion to modify that resulted in
the Order, and that the part of the Order pertaining to the OAG is therefore void.

      In its second issue, the OAG argues that the Order granted injunctive relief
against the OAG, and that the trial court lacked subject matter jurisdiction to enjoin
the OAG because the OAG is an executive officer of the State, and under section
22.002(c) of the Government Code, only the Supreme Court of Texas may issue an
injunction against an executive officer of the State. For this reason, the OAG
asserts that the injunction against it is void due to lack of subject matter
jurisdiction.

      The OAG did not appear in the trial court and did not request the trial court
to vacate the part of the Order pertaining to the OAG for the reasons stated in its
petition for writ of mandamus.

      “Mandamus relief generally requires a predicate request for an action and a
refusal of that request.” In re Le, 335 S.W.3d 808, 814–15 (Tex. App.—Houston
[14th Dist.] 2011, orig. proceeding) (citing Axelson, Inc. v. McIlhany, 798 S.W.2d
550, 556 (Tex. 1990). “But, the requirement that there be a predicate request and

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adverse ruling is excused when such a request would have been futile and the trial
court’s refusal little more than a formality.” Id. at 815. The OAG has not shown
that requesting the trial court to vacate the part of the Order pertaining to the OAG
would be futile.

       Even after the expiration of plenary power over a judgment, a trial court still
may sign an order declaring the judgment to be void because the trial court lacked
subject-matter jurisdiction to render the judgment. See In re Martinez, 478 S.W.3d
123, 126 (Tex. App.—Houston [14th Dist.] 2015, orig. proceeding); In re S.A.H.,
465 S.W.3d 662, 665–667 (Tex. App.—Houston [14th Dist.] 2014, no pet.)
(affirming order in which the trial court declared that its prior final judgment was
void for lack of subject-matter jurisdiction based on a collateral attack filed in
same case more than five years after rendition of judgment). The Supreme Court of
Texas also has indicated that a collateral attack is available if there was “a
complete failure or lack of service” that violates due process. See PNS Stores, Inc.
v. Rivera, 379 S.W.3d 267, 273–74 (Tex. 2012); In re E.R., 385 S.W.3d 552, 566
(Tex. 2012).

       Because the OAG has not first requested the relief it seeks in its petition for
writ of mandamus from the trial court, we deny the petition without prejudice to
refiling after the issues stated in the petition have been presented to and ruled on by
the trial court.


                                                    PER CURIAM

Panel consists of Chief Justice Frost and Justices Boyce and Christopher.
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