                                  NO. 12-13-00385-CV

                          IN THE COURT OF APPEALS

                TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

OFFICE OF ATTORNEY GENERAL,                      §     APPEAL FROM THE 241ST
APPELLANT

V.                                               §     JUDICIAL DISTRICT COURT

KIMBERLY ANN PARKS-
CORNELIUS,
APPELLEE                                         §     SMITH COUNTY, TEXAS

                                 MEMORANDUM OPINION
          The Office of the Attorney General of Texas (OAG) appeals from a default judgment
rendered in favor of Kimberly Ann Parks-Cornelius in her suit to recover past due child support.
OAG contends the trial court’s judgment should be reversed because there is error apparent on
the face of the record. We reverse and render.


                                         BACKGROUND
          Parks-Cornelius’s ex-husband was ordered to pay child support but, as of September
2013, he was $94,013.48 in arrears. Parks-Cornelius sued OAG alleging that it negligently failed
to collect the past due child support. She had the petition and citation served by certified mail.
The petition was received in the OAG mail room, and the green card was stamped “received.”
However, OAG did not file an answer to Parks-Cornelius’s petition, and the trial court rendered
an interlocutory default judgment against OAG. At a later hearing, Parks-Cornelius presented
evidence of her damages, consisting of her past due child support and attorney’s fees. The trial
court rendered judgment for her in the amount of $97,446.64. OAG filed notice of its restricted
appeal.
                                    SOVEREIGN IMMUNITY
       OAG asserts that there is error on the face of the record. Specifically, it argues that
Parks-Cornelius did not properly serve OAG and the trial court lacked jurisdiction to consider
her tort claim for money damages against OAG.
Applicable Law

       A restricted appeal, available under specific circumstances, provides a vehicle for a
losing party to obtain a reversal when error is apparent on the face of the record. Gold v. Gold,
145 S.W.3d 212, 213 (Tex. 2004) (per curiam). A party who did not participate in the hearing
that resulted in the judgment complained of and who did not timely file a postjudgment motion,
request for findings of fact and conclusions of law, or a notice of appeal within the time frame
set out by Texas Rule of Appellate Procedure 26.1(a) may file a restricted appeal within six
months of judgment. TEX. R. APP. P. 30.
       The doctrine of sovereign immunity protects the State from lawsuits for damages in all
instances where the State has not waived immunity by a constitutional or legislative provision.
See Univ. of Tex. Med. Branch v. York, 871 S.W.2d 175, 177 (Tex. 1994); Gen. Servs.
Comm’n. v. Little-Tex Insulation Co., 39 S.W.3d 591, 594 (Tex. 2001). Immunity from suit
deprives a trial court of jurisdiction, even if liability is undisputed. Travis Cnty v. Pelzel &
Assocs., Inc., 77 S.W.3d 246, 248 (Tex. 2002). When performing governmental functions,
political subdivisions derive governmental immunity from the State’s sovereign immunity. City
of Galveston v. State, 217 S.W.3d 466, 469 (Tex. 2007). No statute should be construed to
waive immunity absent clear and unambiguous language. Id.
Analysis

       Parks-Cornelius asserted that she enlisted the assistance of OAG “to try and collect the
child support she and her children are legally owed.” She alleged that OAG breached its duty to
enforce the child support order and negligently misrepresented that it would do so.          She
requested damages in an amount sufficient to cover the past due support as well as attorney’s
fees she had incurred in trying to collect the money from her ex-husband.
       The Office of the Attorney General is entitled to collect and distribute child support
payments and enforce child support orders. TEX. FAM. CODE ANN. § 231.101(West 2014); In re
D.L.D., 374 S.W.3d 509, 516 (Tex. App.–San Antonio 2012, no pet.). Past due child support is
properly characterized as an unfulfilled duty to the child rather than a debt to the custodial


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parent. Williams v. Patton, 821 S.W.2d 141, 145 (Tex. 1991). A court can order only the parent
of a child to pay child support. See TEX. FAM. CODE ANN. § 154.001(a) (West 2014). There is
no statutory provision allowing the court to order OAG to pay child support when the obligor
does not. Moreover, there is no constitutional or legislative provision waiving immunity for the
torts Parks-Cornelius has alleged.
         The Texas legislature has waived immunity for certain torts. See TEX. CIV. PRAC. &
REM. CODE ANN. §§ 101.001-.067 (West 2011 & Supp. 2013). Those torts include claims
regarding property damage, personal injury, or death arising from the operation of a motor
vehicle or equipment, and claims regarding personal injury or death caused by a condition or use
of tangible personal or real property. Id. at §101.021. The statute’s waiver of immunity does not
include negligent child support enforcement.                    Accordingly, the trial court did not have
jurisdiction over Parks-Cornelius’s suit. It was error for the trial court to render a default
judgment in favor of Parks-Cornelius. We sustain OAG’s sole issue.


                                                    DISPOSITION
         We reverse the trial court’s judgment and render judgment dismissing Parks-Cornelius’s
suit for want of jurisdiction.

                                                                          SAM GRIFFITH
                                                                             Justice

Opinion delivered July 23, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)




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                                  COURT OF APPEALS

     TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             JULY 23, 2014


                                         NO. 12-13-00385-CV


                            OFFICE OF ATTORNEY GENERAL,
                                       Appellant
                                          V.
                           KIMBERLY ANN PARKS-CORNELIUS,
                                       Appellee


                                Appeal from the 241st District Court
                         of Smith County, Texas (Tr.Ct.No. 13-1291-C)


                   THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was error in the
judgment.

                   It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be, and the same is, hereby reversed and judgment is rendered dismissing
Kimberly Ann Parks-Cornelius’s suit against the Office of the Attorney General of Texas for
want of jurisdiction. It is further ORDERED that all costs in this cause expended in this court
be, and the same are, hereby adjudged against Appellee, KIMBERLY ANN PARKS-
CORNELIUS, for which let execution issue; and that this decision be certified to the court
below for observance.

                   Sam Griffith, Justice.
                   Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
