                           NUMBER 13-18-00389-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

OFFICE OF THE ATTORNEY
GENERAL OF TEXAS,                                                         Appellant,

                                          v.

SERVANDO RIVERA AND
MARIA MENDOZA,                                                           Appellees.


                   On appeal from the 389th District Court
                         of Hidalgo County, Texas.



                       MEMORANDUM OPINION
  Before Chief Justice Contreras and Justices Longoria and Perkes
             Memorandum Opinion by Justice Longoria

      The Office of the Attorney General of Texas (OAG) brings this restricted appeal

challenging an order modifying the parent-child relationship that eliminated appellee

Servando Rivera’s obligation to pay child and medical support arrears to appellee Maria
Mendoza on behalf of their minor child. 1 In two issues, the OAG argues that (1) the order

is void because the OAG was not served or otherwise given notice of the entry of the final

order, and (2) the trial court abused its discretion in reducing the child support arrearage

to zero because there was no evidence to support the reduction. We affirm in part and

reverse and remand in part.

                                          I.       BACKGROUND

       In 2011, the trial court entered temporary orders in which Rivera was ordered to

pay $213.00 per month in current child support and $113.00 per month in cash medical

support. Mendoza was ordered “to continue coverage under a governmental medical

assistance program or health plan for the child who is the subject of this suit.”

       In 2014, the OAG filed a petition in intervention in the case. The trial court issued

an order in suit affecting the parent-child relationship (SAPCR) in which Rivera was

ordered to pay $150.00 per month in current child support and Mendoza was ordered to

pay $100.00 per month in cash medical support.                  The order also found that as of

September 30, 2014, Rivera was in child support arrears in the amount of $6,419.83 and

in medical support arrears in the amount of $3,012.79. There was a partial release of the

arrears and the trial court found that Rivera owed $4,075.16 in child support arrears and

$3,012.79 in medical support arrears. Rivera was ordered to pay $50 per month for each

of the arrearages until he became current. The trial court further ordered that “the

retroactive child support and medical support are assigned to the [OAG] pursuant to

Texas Family Code chapter 231.”




       1   Appellees have not filed a responsive brief.

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       In 2017, Rivera filed a motion for enforcement of the 2014 order in the SAPCR,

arguing that Mendoza violated a clause in the order by allowing a prohibited individual to

have contact with the child. A hearing was held on Rivera’s motion at which both Rivera

and Mendoza appeared. After hearing testimony and evidence, the trial court found that

Mendoza had violated the clause and gave Rivera primary custody of the child. The trial

court instructed the parties to confer on visitation, child support, and medical support.

After the parties came to an agreement, the trial court heard the agreement and entered

a final judgment consistent with such agreement.

       In January 2018, the trial court rendered final judgment in which the trial court

ordered the visitation as agreed upon by the parties, and ordered Mendoza to pay

$220.00 per month for child support and $100.00 per month for cash medical support.

Rivera was ordered to “continue coverage under a governmental medical assistance

program or health plan for the child.” Further, the order stated that Rivera has “neither

incurred nor is he required to pay any child support arrears” or “medical support arrears.”

The district clerk issued a notice of judgment on January 24, 2018, but the notice does

not reflect service to the OAG. This restricted appeal followed. See TEX. R. APP. P.

26.1(c), 30.

                                 II.     RESTRICTED APPEAL

A.     Standard of Review

       In order to succeed on a restricted appeal, an appellant must establish that: (1) it

filed notice of the restricted appeal within six months after the judgment was signed; (2)

it was a party to the underlying lawsuit; (3) it did not participate in the hearing that resulted

in the judgment complained of and did not timely file any post judgment motions or



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requests for findings of fact and conclusions of law; and (4) error is apparent from the

face of the record. In re Marriage of Butts, 444 S.W.3d 147, 150 (Tex. App.—Houston

[14th Dist.] 2014, no pet.) (citing Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848

(Tex. 2004)); see TEX. R. APP. P. 30 (“A party who did not participate—either in person or

through counsel—in the hearing that resulted in the judgment complained of and who did

not timely file a post judgment motion or request for findings of fact and conclusions of

law, or a notice of appeal within the time permitted by Texas Rule of Appellate Procedure

26.1(a), may file a notice of appeal within the time permitted by Rule 26.1(c).”).

B.     First Three Elements

       The enforcement order was signed on January 24, 2018, and notice of appeal was

timely filed on July 11, 2018, within six months. See TEX. R. APP. P. 26.1(c), 30.     The

OAG was also a party to the lawsuit, and it did not participate in the proceedings resulting

in the modification order. See In re Marriage of Butts, 444 S.W.3d at 150. The Texas

Family Code authorizes the OAG, the state’s designated Title IV–D agency, to enforce,

collect, and distribute child support. Office of the Attorney Gen. of Tex. v. Scholer, 403

S.W.3d 859, 862 (Tex. 2013); see TEX. FAM. CODE ANN. §§ 231.001, 231.101(a)(5)–(6);

see also In re Office of the Attorney Gen. of Tex., No. 13-18-00474-CV, 2018 WL

5274147, at *4 (Tex. App.—Corpus Christi–Edinburg Oct. 23, 2018, orig. proceeding)

(mem. op.). When the OAG provides Title IV–D services, as it did in this case, it becomes

entitled to an assignment of child support rights. See TEX. FAM. CODE ANN. § 231.104;

Scholer, 403 S.W.3d at 862 (discussing the limited power of assignment provided to the

OAG based on applications for financial assistance or child support services). Likewise,

any child support arrearage belongs to the OAG because of the assignment. See In re



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A.B., 267 S.W.3d 564, 565 (Tex. App.—Dallas 2008, no pet.); see also In re J.A.M., No.

13-18-00494-CV, 2019 WL 3721350, at *3 (Tex. App.—Corpus Christi–Edinburg Aug. 8,

2019, no pet.) (mem. op); In re Office of the Attorney Gen. of Tex., 2018 WL 5274147, at

*4.

       Next, the record reflects that the OAG did not timely file a post-judgment motion,

request findings of fact and conclusions of law, or file a notice of appeal within the time

permitted under Rule 26. See Alexander, 134 S.W.3d at 848. Having found the first three

elements to be satisfied, we now consider whether the OAG has identified error that is

apparent from the face of the record. See id.

C.     Error Apparent from the Face of the Record

       In its first issue, the OAG argues that it was deprived of due process because it

was not served with notice of the dispositive hearings.

       1.     Applicable Law

       A party who makes an appearance in a case is entitled under the due process

clause to notice of a trial setting. LBL Oil Co. v. Int’l Power Servs., Inc., 777 S.W.2d 390,

390–91 (Tex. 1989) (per curiam); In re Marriage of Runberg, 159 S.W.3d 194, 197 (Tex.

App.—Amarillo 2005, no pet.).        Failure to give proper notice “violates ‘the most

rudimentary demands of due process of law.’” Peralta v. Heights Med. Ctr., Inc., 485 U.S.

80, 84 (1988) (quoting Armstrong v. Manzo, 380 U.S. 545, 550 (1965)); see In re K.M.L.,

443 S.W.3d 101, 119 (Tex. 2014). “[A] judgment entered without notice or service is

constitutionally infirm.” Peralta, 485 U.S. at 84; see In re Guardianship of Jordan, 348

S.W.3d 401, 405 (Tex. App.—Beaumont 2011, no pet.) (“The constitutional right to due




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process of law restricts the ability of a court to render a judgment binding a party without

proper notice.”); see also In re J.A.M., 2019 WL 3721350, at *3.

       2.     Analysis

       This Court recently issued an opinion which involved nearly identical facts to the

case before us now. See In re J.A.M., 2019 WL 3721350, at *1. In that case, the OAG

appeared in the case in relation to the assignment of child support rights.               Id.

Subsequently, the father filed a motion to modify the parent-child relationship and the

OAG’s office intervened. Id. After holding several hearings, the trial court ordered mother

and father to mediation with a final hearing date set, which was cancelled. Id. Mother

and father mediated and reached a settlement agreement.             Id.   The OAG did not

participate in any of the hearings or the mediation, nor was it notified of such proceedings.

Id. The trial court signed the order as agreed to by mother and father, which included

       a finding that there shall be a judgment against [father] in the amount of -0-
       as of January 31, 2018 for any and all past due child support and medical
       support obligations. In its order, the trial court found that [father] owed no
       child support or medical support arrears as of January 31, 2018.

Id. The OAG filed its restricted appeal. Id.

       There, we concluded that the OAG was entitled to notice and a hearing regarding

the addressed child support and medical support arrears. Id. Therefore, we held that the

trial court’s actions resulted in a violation of due process, and we vacated the order as it

related to child support and medical support arrears. Id.

       Here, we are presented with the same issue. Having been assigned the child

support rights, the OAG was a party to the proceedings and was entitled to notice of the

proceedings on Rivera’s motion. See id. at *4. After holding a hearing on Rivera’s motion

and allowing Rivera and Mendoza to reach an agreement on the terms of the modification

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as it related to child support, medical support and visitation, the trial court signed an order

that modified the child support and medical support arrears.                       The record clearly

demonstrates an absence of notice to the OAG of the proceedings which resulted in the

trial court’s modification of the order. See Garcia v. Harding, 545 S.W.3d 8, 14–15 (Tex.

App.—El Paso 2017, no pet.) (holding that the trial court abused its discretion in entering

judgment on a Rule 11 agreement without proper notice); see also In re J.A.M., 2019 WL

3721350, at *4. Rivera and Mendoza reached an agreement, without the OAG present,

regarding visitation and child support, and the trial court entered final judgment in

accordance with that agreement. See In re J.A.M., 2019 WL 3721350, at *4. Additionally,

counsel for Rivera and Mendoza signed the agreement, with no representation from the

OAG. See id. Accordingly, we conclude that error is apparent from the face of the record.

See Alexander, 134 S.W.3d at 850. We sustain the OAG’s first issue. 2

        The OAG requests that we reverse only the portion of the trial court’s judgment

only as it relates to the child support and medical support arrears. As the OAG was only

deprived of its due process rights regarding this aspect of the judgment, we will reverse

only that portion of the judgment of which the OAG complains.

                                         III.     CONCLUSION

        We reverse that portion of the trial court’s judgment regarding child support and

medical support arrears. We affirm the remainder of the trial court’s judgment. We

remand the case for further proceedings consistent with this memorandum opinion.




        2Our resolution of the OAG’s first issue is dispositive of the appeal. Therefore, we need not reach
the OAG’s second issue, arguing that the trial court abused its discretion in reducing the child support
arrearage to zero because there was no evidence to support the reduction. See TEX. R. APP. P. 47.1.

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                                  NORA L. LONGORIA
                                  Justice
Delivered and filed the
12th day of December, 2019.




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