REVERSE and REMAND and Opinion Filed February 19, 2020




                                                     In The
                                      Court of Appeals
                               Fifth District of Texas at Dallas
                                               No. 05-18-00825-CV

                                IN THE INTEREST OF W.J.M., A CHILD

                            On Appeal from the 254th Judicial District Court
                                         Dallas County, Texas
                                 Trial Court Cause No. DF-18-09867

                                    MEMORANDUM OPINION
                               Before Justices Whitehill, Schenck, and O'Neill1
                                         Opinion by Justice O'Neill


            Appellant, N.D.,2 appeals a default order that, among other things, established his

paternity as to W.J.M., a minor child. In five issues, N.D., an inmate appearing pro se, generally

contends the trial court violated his due process rights by not allowing him to appear at the final

hearing. We reverse the trial court’s judgment and remand the case for further proceedings.

                                                 BACKGROUND

           The Texas Attorney General’s Office (the “State”) filed a suit affecting the parent-child

relationship (“SAPCR”) alleging that N.D. was W.J.M.’s father and requesting that the court

appoint conservators and order child support. By letter dated June 7, 2018, the State notified N.D.



1
    The Hon. Michael J. O'Neill, Justice, Assigned
2
 Although this is not a termination case, we will use aliases in accordance with Texas Rule of Appellate Procedure
9.8 to protect the minor’s identity. See TEX. R. APP. P. 9.8.
of a final hearing set for June 26. In response, N.D. filed special exceptions, a plea to the

jurisdiction, an answer, and a motion to appear by telephone at the final hearing. The trial court

did not act on N.D.’s motion or other pleadings.

       When N.D. did not appear at the final hearing, it proceeded as a default. After hearing

Mother’s testimony, the trial court signed an order that found N.D. to be W.J.M.’s biological

father; addressed N.D.’s conservatorship rights; implemented a visitation schedule; and set a zero-

dollar child support obligation. N.D. appeals the default order rendered against him.

                                           DISCUSSION

       In five issues, N.D. complains the trial court (1) violated his due process rights by failing

to give him at least forty-five days’ notice of the final hearing and by not allowing him to appear

at the final hearing; (2) abused its discretion by refusing to rule on his motion to appear by

telephone before the final hearing; (3) lacked jurisdiction over the State’s child support claim; (4)

failed to rule on his special exceptions and plea to the jurisdiction; and (5) improperly implemented

a visitation schedule when the State did not seek such relief in its pleadings. Because N.D.

challenges the trial court’s jurisdiction which, in effect, challenges our jurisdiction over this

appeal, we begin with N.D.’s third and fourth issues. See Duggan v. Tanglewood Villa Owners

Assoc., Inc., No. 05–16–00300–CV, 2017 WL 2610032, at *2 (Tex. App.—Dallas June 16, 2017,

no pet.) (mem. op.) (“If the trial court lacked jurisdiction, the appellate court has jurisdiction only

to set aside the judgment and dismiss the cause.”).

                                            Jurisdiction

       Subject matter jurisdiction defines the court’s power to “determine an action involving a

particular subject matter as between the parties and render a certain judgment.” Kshatrya v. Tex.

Workforce Comm’n, 97 S.W.3d 825, 829 (Tex. App.—Dallas 2003, no pet.). Pertinent to this case,




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a family district court has subject matter jurisdiction over family law matters, including child

custody and support claims. TEX. GOV’T CODE § 24.601(b)(4).

         In his third issue, N.D. challenges the trial court’s jurisdiction over the State’s child support

claim, pointing to the September 1, 2015 amendments to House Bill 943 that eliminated the

presumption of minimum wage in child support cases for inmates subject to an order of

confinement exceeding ninety days. Relying on these amendments, N.D. suggests there was no

case or controversy because the trial court could not order any amount in child support given that

both his presumed and actual earnings were zero. But whether the trial court could actually impose

child support is a different question than whether the trial court had jurisdiction over the child

support claim. See City of Wylie v. Taylor, 362 S.W.3d 855, 859 (Tex. App.—Dallas 2012, no pet.)

(when reviewing a challenge to the trial court’s subject matter jurisdiction, an appellate court does

not look to the merits of the case). Thus, here, where the State filed suit in a family district court

seeking the imposition of child support, the trial court had jurisdiction over the claim. We overrule

N.D.’s third issue.

         In his fourth issue, N.D. complains the trial court failed to rule on his special exceptions

and plea to the jurisdiction. Specifically, in both pleadings, N.D. claims the State’s allegation that

“[t]he child resides with mother . . . a resident of Texas” failed to show that W.J.M. resided in

Dallas County, a prerequisite to invoke a Dallas County family district court’s jurisdiction. Though

briefed as a jurisdictional argument, N.D. appears to argue that the State failed to allege that Dallas

County was a proper venue.3 See generally Gutierrez v. Gutierrez, No. 05–14–00803–CV, 2016

WL 1242193, at *1 (Tex. App.—Dallas Mar. 30, 2016, no pet.) (mem. op.) (venue is not

jurisdictional); In re A.C., No. 05–18–00129–CV, 2018 WL 5273931, at *1 (Tex. App.—Fort



3
  To the extent N.D. is again making a jurisdictional argument, we earlier determined the trial court had subject matter
jurisdiction over the suit. See TEX. GOV’T CODE § 24.601(b)(4).
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Worth Oct. 24, 2018, pet. denied) (mem. op.) (“Jurisdiction and venue are not synonymous.

Subject-matter jurisdiction refers to the court’s power to hear a particular type of suit, while venue

pertains to where—or in which county—a suit may be brought.”).

       Family code section 103.001 governs venue in SAPCR cases and provides that an original

suit must be filed in the county where the child resides unless another court has continuing

exclusive jurisdiction under chapter 155 or venue is fixed in a suit for dissolution of marriage.

TEX. FAM. CODE § 103.001(a). Here, although the State’s original petition failed to allege that

W.J.M. lived in Dallas County, N.D. nonetheless concedes this fact in his opening brief to this

Court. Therefore, we conclude Dallas County was a proper venue and overrule N.D.’s fourth issue.

                                            Due Process

       N.D.’s first and second issues encompass the heart of this appeal: whether the trial court

violated N.D.’s due process rights by (1) failing to give him at least forty-five days’ notice of the

final hearing and by not allowing him to appear at the final hearing, and (2) failing to rule on his

motion to appear by telephone before the final hearing.

       Texas Rule of Civil Procedure 245 requires parties in contested cases to receive at least

forty-five days’ notice of a first trial setting, including a dispositive hearing. TEX. R. CIV. P. 245;

LBL Oil Co. v. Int’l Power Servs. Inc., 777 S.W.2d 390, 390–91 (Tex. 1989) (a hearing on a motion

for default judgment was effectively a trial setting since it was dispositive of the case). Rule 245’s

notice requirement “is mandatory and involves the constitutionally protected right of due process.”

In re I.L.S., 339 S.W.3d 156, 159 (Tex. App.—Dallas 2011, no pet.); Bell Helicopter Textron, Inc.

v. Abbott, 863 S.W.2d 139, 140–41 (Tex. App.—Texarkana 1993, writ denied) (failure to comply

with Rule 245 renders any first setting “ineffectual.”). Thus, here, where the State sent N.D. notice

of the June 26 final hearing on June 7, giving N.D.—at most—nineteen days’ notice, we conclude




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the final hearing was “ineffectual” and in violation of N.D.’s due process rights. Bell Helicopter

Textron, Inc., 863 S.W.2d at 140.



       Further, regarding N.D.’s motion to appear by telephone, it is undisputed that the trial court

did not rule on it. However, by signing the default order without addressing the motion, the trial

court implicitly denied it. See In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003); In re A.W., 302

S.W.3d 925, 928 (Tex. App.—Dallas 2010, no pet.).



       It is well-established that inmate litigants “cannot be denied access to the courts simply

because they are inmates.” In re Z.L.T., 124 S.W.3d at 165; In re A.W., 302 S.W.3d at 928. Thus,

when an inmate litigant cannot physically appear in a civil court, he may request to appear by an

alternative, effective means, such as by affidavit, deposition, or telephone. Johnson v. Handley,

299 S.W.3d 925, 929 (Tex. App.—Dallas 2009, no pet.).



       Here, N.D.’s appearance by telephone would have been an alternative, effective means in

lieu of a physical appearance. However, by implicitly denying N.D.’s motion without allowing

him to appear by some other alternative means, the trial court prevented N.D. from appearing at

the final hearing and deprived him of his right to be heard. Moreover, in its letter brief to this

Court, the State conceded that N.D.’s due process rights were violated and acknowledged that the

trial court should have allowed N.D. to appear and argue his pleadings. Therefore, we conclude

the trial court’s actions violated N.D.’s due process rights. Based on our conclusions, we sustain

N.D.’s first and second issues.




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                                         CONCLUSION

       We conclude the trial court violated N.D.’s due process rights by failing to give him forty-

five days’ notice of the final hearing and by not allowing him to appear at the final hearing. Based

on our conclusions, we need not address N.D.’s fifth and remaining issue. Accordingly, we reverse

the trial court’s judgment and remand the case for further proceedings consistent with this opinion.




180825f.p05                                        /Michael J. O'Neill//
                                                   MICHAEL J. O'NEILL
                                                   JUSTICE, ASSIGNED




                                                –6–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 IN THE INTEREST OF W.J.M., A CHILD                 On Appeal from the 254th Judicial District
                                                    Court, Dallas County, Texas
 No. 05-18-00825-CV                                 Trial Court Cause No. DF-18-09867.
                                                    Opinion delivered by Justice O'Neill.
                                                    Justices Whitehill and Schenck
                                                    participating.

        In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and this cause is REMANDED to the trial court for further proceedings consistent
with this opinion.

       It is ORDERED that appellant recover his costs, if any, of this appeal from appellee.


Judgment entered this 19th day of February.




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