                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                    No. 07-15-00291-CV


                              IN THE INTEREST OF B.B.J.

                          On Appeal from the 140th District Court
                                   Lubbock County, Texas
             Trial Court No. 2013-508,395, Honorable Jim Bob Darnell, Presiding

                                      April 15, 2016

                            MEMORANDUM OPINION
                Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Despite its rather tortured procedural pathway to this court, we attempt to simplify

the circumstances of this appeal. It begins with an entity known as Adoption Covenant

petitioning to terminate the parental rights of M.J. (mother) to her son, B.B.J.

Apparently, M.J. voluntarily relinquished her rights to the child. That led to her parental

rights being terminated and Adoption Covenant being appointed the child’s managing

conservator in cause number 2013-506,729 (729). But, J.E. (father) did not go quietly

into the night once Adoption Covenant petitioned to terminate his parental rights via

cause number 2013-507,082. Instead, he answered that petition and sought to modify

the managing conservatorship order by requesting that he be designated the sole
managing conservator of B.B.J. The trial court granted him the relief he sought, and his

parental rights were not terminated.          Upon discovering this, M.J. apparently had a

change of heart and wanted to be a mother again. Consequently, she filed a bill of

review to avoid the previously issued termination order. That, in turn, led Adoption

Covenant to file its own bill of review. The two bills were assigned cause number 2013-

508,395 (395), and both alluded to J.E as the managing conservator of B.B.J. Yet,

neither party served him with their respective pleadings, though Adoption Covenant

represented that he had intervened and filed an answer.                     Thereafter, Adoption

Covenant and M.J. unilaterally tendered to the trial court an agreed order vitiating the

prior termination order and restoring M.J.’s parental rights. There is no record of a

hearing on the matter. Nor is there evidence that J.E. was notified of either the order or

the proceeding, if any, that culminated in the order’s execution, despite his purported

status as an intervenor. This lack of notice was brought to the trial court’s attention via

a motion for new trial filed not in cause number 395 (the bill of review proceeding) but

rather in number (729) (the termination proceeding). Moreover, the trial court granted it

after “find[ing] that [J.E.] was entitled to notice and an opportunity to respond to the

matters contained in the Bill of Review . . . [and] [b]ecause [J.E.] was deprived of an

opportunity to respond and participate. . . .”1

       About a year later, on April 24, 2015, the trial court signed another decree

purporting to end the bill of review controversy. Filed in cause number 395, the order

recognized and accepted Adoption Covenant’s nonsuit of the termination case it filed

       1
         The judgment referred to in the order granting a new trial was said to have been signed on
March 18, 2014. However, that language came from the motion for new trial which also assigned the
judgment a signature date of March 18, 2014. Needless to say, the attorney who drafted the motion was
wrong. The judgment memorializing the decision to grant the bill of review was signed on February 18,
2014. Sometimes a bit of care goes a long way in avoiding confusion.

                                                 2
against M.J. It also granted a motion M.J. had filed to dismiss J.E. from the bill of

review proceeding due to his purported lack of standing. According to the trial court, its

April 24th edict “finally disposes of all parties and claims and is appealable.” So, J.E.

appealed and asserts various issues before us. We dismiss the appeal for lack of

jurisdiction.2

        An order granting a new trial has a specific effect. It vacates the previously

entered judgment “and returns the case to the trial court as if no previous trial had been

conducted.” In the Interest of S.C.S., No. 07-11-00299-CV, 2011 Tex. App. LEXIS 8803

(Tex. App.—Amarillo, November 3, 2011, no pet.) (mem. op.) Even though the order

granting a new trial here was assigned the wrong cause number, we are controlled by

its substance, not its procedural technicality. San Antonio v. Rodriguez, 828 S.W.2d

417, 418 (Tex. 1992) (involving a notice of appeal filed in the proper court and carrying

the correct style but displaying the wrong cause number and holding that it was

sufficient to perfect appeal and avoid dismissal); see Leal v. City of Rosenberg, 17

S.W.3d 385, 386 (Tex. App.—Amarillo 2000, no pet) (involving a motion for new trial

filed in the wrong cause and holding that it was still effective to extend the period within

which to perfect an appeal); cf. Philbrook v. Berry, 683 S.W.2d 378, 379 (Tex. 1985)


        2
           By prior order issued on February 11, 2016, we abated and remanded the dispute to the trial
court to determine if a final order had been entered. The trial court was directed to address the matters
mentioned in the abatement order by March 11, 2016. That deadline was extended to April 1, 2016 at the
request of M.J. Within that period, J.E. filed a document with the trial court entitled “RESPONDENT,
JOSHUA EPPS', RESPONSES AND OBJECTIONS TO PROPOSED SUPPLEMENTAL FINDINGS OF
FACT AND CONCLUSIONS OF LAW.” The proposed findings alluded to were allegedly tendered to the
trial court by M.J. and indicate that the judgment in cause number 395 is final. We have no record of
them or any other findings being executed by the trial court, however. Furthermore, J.E. argued in his
“Response[] and Objections to Proposed Findings. . .” that we had jurisdiction over the appeal. Despite
that document having been served on her, M.J. did not reply to it. Nor have we received anything from
her or the trial court addressing whether we have jurisdiction to entertain the appeal, despite the lapse of
the April 1st deadline. Consequently, we vacate our prior order of abatement and reinstate the cause on
our docket. The record before us permits us to determine our jurisdiction over the cause.


                                                     3
(stating that “the motion for new trial must be filed in the same cause as the judgment

the motion assails.”)3 And, it is clear from the substance of that order that the trial court

intended to vacate the agreed judgment granting the bill of review. See Lone Star

Cement Corp. v. Fair, 467 S.W.2d 402, 404-405 (Tex. 1971) (stating that “[t]he same

rules of interpretation apply in construing the meaning of a court order or judgment as in

ascertaining the meaning of other written instruments”); see also, Gutierrez v. Zurich

Am. Ins. Co., No. 07-07-0055-CV, 2007 Tex. App. LEXIS 3380, at *3 (Tex. App.—

Amarillo May 2, 2007, no pet.) (mem. op.) (stating that the “same rules of interpretation

apply in construing the meaning of a court order or judgment as in ascertaining the

meaning of other written instruments” and the “entire contents of the instrument and

record should be considered, and the instrument is to be read as a whole.”)

        So, what we have here is a bill of review that remains pending in the trial court.

That is, granting the new trial returned the bill of review to the trial court’s docket with

the status of an unadjudicated suit. Furthermore, nothing in the April 24, 2015 decree

dismissing J.E.’s claims for lack of standing actually adjudicates whether the previously

rendered termination order should be avoided by sustaining the bill of review. Rather,

the April 2015 missive refers to 1) Adoption Covenant and M.J. deciding to non-suit J.E.

from their respective bills of review and 2) Adoption Covenant deciding to non-suit its

attempt to terminate M.J.’s parental rights.             But, again, there is nothing to non-suit



        3
           In Leal v. City of Rosenberg, 17 S.W.3d 385 (Tex. App.—Amarillo 2000, no pet.), we noted that
“the Texas Supreme Court has all but expressly overruled the decision” in Philbrook. Id. at 386.
Furthermore, since the Supreme Court issued that opinion, it “has consistently admonished that appellate
decisions should turn on ‘substance’ instead of [procedural] ‘technicality’ . . . .” Id. Indeed, compliance
with procedural technicality here is somewhat confusing since there were actually four independent suits
filed relating to B.B.J., conservatorship over him, and the termination of the parental rights of his
biological parents. They have since been consolidated into one umbrella suit having cause number 729,
and the motion for new trial and order granting same were filed in 729.

                                                    4
because the claims in the underlying termination suit remain adjudicated by and merged

into the order of termination until that order is vacated in some manner.4

        Without a final order, we have no jurisdiction over the appeal before us. Thus,

we have no choice but to dismiss the appeal. However, because another issue will

most likely arise in the trial court we address it here. See Newspapers, Inc. v. Love 397

S.W.2d 469, 471 (Tex. Civ. App.—Austin 1965, writ ref’d n.r.e.) (noting that when an

appellate court reverses the judgment of the trial court and remands the cause for

further proceedings and in its opinion it states the rules and principles of law which are

to be applied to the questions likely to arise upon retrial, these statements are not to be

regarded as dicta even if not necessary to the disposition of the appeal). It pertains to

the standing of J.E. to participate in the prosecution of the bill of review.

        The concept of standing focuses on whether a party has a sufficient relationship

to the lawsuit to have a justiciable interest in its outcome. Austin Nursing Ctr., Inc. v.

Lovato, 171 S.W.3d 845, 848 (Tex. 2005). And, unless standing is conferred on the

person by statute, he must possess an interest in a conflict distinct from that of the

general public such that his opponent’s actions cause him some particular injury.

Sneed v. Webre, 465 S.W.3d 169, 180 (Tex. 2015) (stating that unless standing is

conferred by statute, the plaintiff must demonstrate that he or she possesses an interest

in a conflict distinct from that of the general public, such that the defendant's actions

have caused the plaintiff some particular injury).                  Normally, this requires a “real


        4
           Logic compels that until the order of termination is vacated, it remains effective. See Voskamp
v. Arnoldy, 749 S.W.2d 113, 125 (Tex. App.—Houston [1st Dist.] 1988, writ denied) (stating that a “prior
judgment, valid on its face, must be given conclusive effect until it is set aside by a bill of review
proceeding.”) Sustaining the bill of review would have the effect of avoiding the termination order. But, if
the bill has yet to be sustained due to the trial court’s decision to order a new trial, then the termination
order has yet to be vitiated.

                                                     5
controversy” between the parties which will be adjudicated by the judicial declaration

sought. Id.

       To suggest that the sole remaining parent who happens to be the sole managing

conservator of a child has no standing to contest the reinstatement of the parental rights

of a biological parent strains credulity. This seems especially so when the child in

question is afforded no representation, via an ad litem or otherwise, in the very same

proceeding. Indeed, our Supreme Court has acknowledged that the right of a parent to

maintain custody of and raise his child is more precious than a property right; it “is

paramount.” In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). Being the only legally

recognized parent of B.B.J, J.E. is the only parent with a legally cognizable liberty

interest in raising and possessing the child. Reinstatement of M.J. as a parent would

ipso facto vest her with the same liberty interest and thereby diminish J.E.’s.5 At that

point, M.J. would also have the authority to initiate a suit affecting the conservatorship of

the child. See TEX. FAM. CODE ANN. § 102.003(a) (West Supp. 2015) (stating that an

original suit affecting the parent-child relationship may be filed at any time by a parent of

the child); Id. § 156.002(b) (stating that a person who has standing to sue under § 102

of the Family Code may file a suit for modification in the court with continuing, exclusive

jurisdiction). That ability does not exist if her parental rights remained terminated. See

e.g. In re H.R.S., 04-15-00051-CV, 2015 Tex. App. LEXIS 5813, at *2-3 (Tex. App.—

San Antonio, June 10, 2015, no pet.) (holding that a parent whose parental rights had

been terminated has no standing to contest the decision to appoint the Texas

Department of Family and Protective Services as managing conservator); In re Epps,

       5
         If the liberty interest involved were likened to a pie, the whole pie would be that of J.E.
Furthermore, the whole pie would no longer be his if M.J. was returned to the status of a legally
recognized parent.

                                                 6
No. 07-14-00344-CV, 2014 Tex. App. LEXIS 11317 (Tex. App.—Amarillo October 14,

2014, orig. proceeding) (rejecting the claim that M.J. had no standing to seek the

modification of conservatorship because her rights had been terminated because when

the trial court initially granted the bill of review her status as a parent was reinstated).

Moreover, our own opinion in In re Epps illustrates that the likelihood of her attempting

to diminish J.E's custody and control over M.J. is not speculative. She did just that once

the order terminating her parental rights was initially rescinded via her bill of review.

        Simply put, J.E. had and has an interest in the reinstatement of M.J.’s parental

rights that are distinct from that of the general public. Furthermore, reinstatement of

those rights directly impacts upon his own liberty interest in the custody and rearing of

B.B.J. See In re J.C., 96 S.W.3d 256, 273 (Tex. 2002) (characterizing the right of

parents as a “fundamental liberty interest”). Should the bill of review be granted and the

prior order terminating M.J.’s parental right be avoided, then she automatically returns

to the status of a parent with the rights of a parent until those rights are again

terminated. The impact of such a judicial act upon the parental rights of J.E. cannot be

denied. Consequently, J.E. has standing to contest the reinstatement of those rights.

        We dismiss the appeal for want of jurisdiction and remand the cause to the trial

court for further proceedings.6


                                                                    Brian Quinn
                                                                    Chief Justice


        6
           See Hickman-Bey v. Tex. Dep't of Crim. Justice, 07-12-00490-CV, 2014 Tex. App. LEXIS 4028,
at *4-5, n.6 (Tex. App.—Amarillo, April 11, 2014, no pet.) (mem. op.) (stating that an interlocutory order
from a bill of review is not appealable and that in a bill of review proceeding, “the final judgment should
either deny the petitioner any relief, or grant the bill of review, set aside the former judgment, to the extent
attacked, and substitute a new judgment which properly adjudicates the controversy. [citation omitted] If
the trial court grants a bill of review and sets aside a judgment in a prior case, the subsequent trial on the
merits of the prior case occurs in the same proceeding as the trial on the bill of review.”)

                                                       7
