

 















 
 
 
 
 
 
 
                                   NUMBER
13-00-518-CV
 
                             COURT OF APPEALS
 
                   THIRTEENTH DISTRICT OF TEXAS
 
                                CORPUS CHRISTI
__________________________________________________________________
 
IN THE INTEREST OF A.G., J.G., S.G., M.G., AND
J.G., III, CHILDREN
__________________________________________________________________
 
                         On
appeal from the 36th District Court
                               of San
Patricio County, Texas.
__________________________________________________________________
 
        OPINION ON MOTION FOR
REHEARING EN BANC
 
                                  Before
the Court En Banc
                                  Opinion
by Justice Castillo  




We dismiss both the appellee=s motion for rehearing
and the motion for rehearing en banc with request for oral argument for want of
jurisdiction for the reasons stated in our original opinion.  In a matter as grave as the finality that
comes with the termination of the parent-child relationship, the parties must
be held to the highest standard of compliance with the letter of the law.  Our opinion does so.[1]  Both motions are hereby dismissed. 
ERRLINDA
CASTILLO, 
Justice
 
Justice Dorsey
dissenting and joined by Justice Yañez.
 
Do not
publish.  
Tex. R. App. P. 47.3.
 
Order delivered
and filed this the
3rd day of
October, 2002.
 
 
 

 
















 
 
 
 
 
 
 
                                   NUMBER
13-00-518-CV
 
                             COURT OF APPEALS
 
                   THIRTEENTH DISTRICT OF TEXAS
 
                                CORPUS CHRISTI
 

 
                     IN THE INTEREST OF A.G.,
J.G., S.G., M.G., 
                                  AND J.G., III,
CHILDREN,
 

 
                         On
appeal from the 36th District Court
                               of
San Patricio County, Texas.
 

 
                            DISSENTING OPINION 
               ON MOTION FOR REHEARING EN BANC
 
                                  Before the
Court En Banc
                          Dissenting
Opinion by Justice Dorsey
 
 






The opinion of the panel to dismiss the appeal for want of
jurisdiction is erroneous.  Rehearing en
banc should be granted to reconsider and correct that opinion for two reasons:
the trial court's failure to include additional temporary orders in its
extension order is not a matter that affects its jurisdiction, and no error was
preserved as required by the Family Code. 
I would grant rehearing and dissent from the court's refusal to grant
rehearing en banc.
First, the trial court=s technical
failure to comply with the family code by making Afurther temporary orders for the safety
and welfare of the child[ren] as necessary to avoid further delay in resolving
the suit@ does not deprive
the court of jurisdiction over the suit. 
See Act of May 31, 1997, 75th Leg., ch. 1022, ' 90, 1997 Tex.
Gen. Laws 3733, 3769 (amended 2001) (current version at Tex. Fam. Code Ann. ' 263.401 (b)
(Vernon Supp. 2002)).  Section 263.401
requires a trial court to dismiss a SAPCR filed by the department seeking
termination of the parent-child relationship and appointing the department
temporary managing conservator if it has been pending for over a year without a
final order or an extension.  See Tex. Fam. Code Ann '
263.401(a).  Subsection (b) of that  statute governs the procedure for a trial
court=s grant of
extension.  Id. '
263.401(b).  Subsection (b) states that a
trial court may extend its jurisdiction over the suit for a period not longer
than 180 days after the Monday following the first anniversary of the suit if
the court has continuing jurisdiction and the appointment of the department as
temporary managing conservator is in the best interest of the child.  See Act of May 31, 1997, 75th Leg., ch.
1022, ' 90, 1997 Tex.
Gen. Laws 3733, 3769 (amended 2001) (current version at ' 263.401(b)).






The first requirement is that the court had Acontinuing
jurisdiction.@  This is a term of art when used in reference
to a suit affecting the parent-child relationship.  The court of Acontinuing jurisdiction@ over a child
is a court that has entered a final order affecting the particular child at
issue in a subsequent case.  See Tex. Fam. Code Ann. ' 155.001
(Vernon 2002).  We can presume that the
trial court had continuing jurisdiction over the children at issue in this suit
because the family code requires the suit to be transferred to such a court, if
one exists, after the initial adversary hearing.  See id. '' 262.202, 262.203. Since the trial court
was the court with continuing, exclusive jurisdiction, if one existed, the
first part of the statute allowing for an extension of the trial court=s jurisdiction
was met.  See Act of May 31, 1997,
75th Leg., ch. 1022, ' 90, 1997 Tex.
Gen. Laws 3733, 3769 (amended 2001) (current version at Tex. Fam. Code Ann. ' 263.401 (b)
(Vernon Supp. 2002)).






Thus, in order for the trial court=s extension of
its jurisdiction over this suit to be valid, the only other requirement to be
met was that the appointment of the department was in the best interest of the
children.  See id.  We can presume that the trial court found
that the appointment of the department was in the best interest of the
child.  The statute does not require the
order granting an extension under 263.401 to include such an express
finding.  Id.  Rather, the order only is required to
schedule a new date for dismissal and Amake further
temporary orders for the safety and welfare of the child[ren] as necessary
to avoid further delay in resolving the suit.@  See
id. (emphasis added).  The fact that
the trial court did not make further temporary orders in the extension order
indicates that the court did not deem further orders regarding the
safety and welfare of the children Anecessary to avoid
further delay in resolving the suit.@  See id.  The fact that no additional temporary orders
were contained in the extension order does not, however, deprive the court of
jurisdiction over the remainder of the suit. 
See also In Re Bishop, 8 S.W.3d 412, 418B19 (Tex. App.CWaco 1999,
orig. proceeding) (treating order that failed to comply with technicalities of
263.401 as valid extension order).  Thus,
I do not agree with the original opinion of this Court holding that the trial
court lost jurisdiction by failing to include additional temporary orders in
the extension order, and that the ultimate termination order was therefore void
because the trial court had lost jurisdiction over the matter when it was
entered
Secondly, I would hold that the ability to complain on appeal
of any technical failure in the trial court=s extension order was waived by the
appellant.   See Tex. Fam. Code Ann. '
263.402(b).  Section 263.402(b) states:
A party to a suit
under this chapter who fails to make a timely motion to dismiss the suit or to
make a motion requesting the court to render a final order before the deadline
for dismissal under this subchapter waives the right to object to the court=s failure to
dismiss the suit.
 






Tex. Fam. Code Ann. ' 263.402 (b).  Supplementing general preservation
requirements, see Tex. R. App. P. 33.1, which were not
met in this case, the legislature added section 263.402(b) to the family code
which clarifies that the right to have a termination case dismissed is one that
can be waived.  Even though this
provision was not in effect at the trial of this cause, preservation was still
required under the general rules of preservation.  See Tex.
R. App. P. 33.1.  General rules of
preservation have always required that timely complaint be made to the trial
court in order to preserve error for appeal. 
See id.  Because I would
hold that any such error in the extension order does not operate to deprive the
court of jurisdiction over the case and because appellant never raised a
complaint regarding inadequacy of the extension order to the trial court, I
would hold that appellant waived his right to complain on appeal that the order
was faulty.  Accordingly, I dissent from
the majority=s denial of
appellee=s motion for en
banc reconsideration of this appeal.
 
______________________________
J.
BONNER DORSEY,
Justice
 
Joined by Justice
Yañez.
 
Publish.
Tex.
R. App. P. 47.3(b).
 
Opinion delivered and
filed
this 3rd day of
October, 2002.

 




[1]
We respectfully disagree with the dissent=s
argument that the failure of the trial court to comply with the then-existing
requirements of section 263.401(b) did not affect its jurisdiction and so an objection
would be required to preserve this issue. 
The language of section 263.401 (b) in effect at the relevant time in
this case clearly indicates that the statute was jurisdictional, stating, A
. . . the court may extend the court=s
jurisdiction of the suit . . . @
by compliance with the statutory requirements in granting an extension under
that section. (emphasis added).  Act of
May 31, 1997, 75th Leg., ch. 1022, '90,
1997 Tex. Gen. Laws 3733, 3769 (amended 2001)(current version at Tex. Fam. Code Ann. '263.401(b)(Vernon Supp.
2002)).  In 2001, the Legislature removed
the above clause referring to jurisdiction, replacing it with language stating
that A[t]he court may
retain the suit on the court=s
docket . . . ,A and added the
waiver language of section 263.402(b) that the dissent cites.  Act of May 22, 2001, 77th Leg., ch. 1090, ''8,
9, Tex. Gen. Laws 2395, 2396-97 (codified at Tex.
Fam. Code Ann. ''263.401(b),
263.402(b)(Vernon Supp. 2002)).  These
changes in 2001 strongly suggest that the Legislature itself recognized that
the prior language of the statute was problematic because it made the continued
jurisdiction of the trial court after one year subject to compliance with the
statutory requirements of section 263.401(b). 
While the statute is clearly not jurisdictional under its current
incarnation, it certainly was so at the time the trial court failed to comply
with its provisions in the instant case.


