Opinion filed December 13, 2013




                                     In The


        Eleventh Court of Appeals
                                  __________

                              No. 11-13-00355-CV
                                  __________

                         IN RE ROSANNA BANDA


                         Original Mandamus Proceeding


                     MEMORANDUM OPINION
      Relator, Rosanna Banda, has filed in this court an original mandamus
proceeding seeking to compel the judge of the 326th District Court of Taylor
County, the Honorable Aleta Hacker, to vacate her order of November 8, 2013. In
that order, Judge Hacker denied Relator’s motion to dismiss the underlying
proceeding—trial court cause no. 07244-CX—a parental termination case filed by
the real party in interest, the Department of Family and Protective Services.
Relator sought to have the suit dismissed pursuant to Section 263.401 of the Texas
Family Code. TEX. FAM. CODE ANN. § 263.401 (West 2008). We conditionally
grant Relator’s petition for writ of mandamus.
      Section 263.401(a) provides that a parental termination suit shall be
dismissed unless trial on the merits has commenced by the Monday following one
year from the date of the temporary order appointing the Department as managing
conservator.   Pursuant to Section 263.401(b), one 180-day extension may be
granted. “If the court grants an extension but does not commence the trial on the
merits before the required date for dismissal under Subsection (b), the court shall
dismiss the suit. The court may not grant an additional extension that extends the
suit beyond the required date for dismissal under Subsection (b).”                Id.
§ 263.401(c). We note that the Department concedes that the petition has merit
because the statutory deadline under Section 263.401 had passed.          Therefore,
Relator’s timely filed motion to dismiss should have been granted.
      In the underlying proceeding, the Department filed a petition seeking to
terminate Relator’s parental rights. The Department was appointed temporary
managing conservator on October 7, 2011. The judge set the original dismissal
date at October 8, 2012. With a subsequent 180-day extension, the mandatory
dismissal date was moved to April 6, 2013. Trial on the merits commenced on
March 19, 2013, but resulted in a mistrial. Relator filed a motion to dismiss and an
amended motion to dismiss, which the trial court denied on November 8, 2013.
Trial on the merits is currently set for December 16, 2013. The earlier trial that
commenced prior to the deadline did not extend the deadline because that trial
resulted in a mistrial. See In re Northrop, 305 S.W.3d 172, 177 (Tex. App.—
Houston [1st Dist.] 2009, orig. proceeding) (stating that the Section 263.401
deadline is not tolled by a mistrial).
      The statutory dismissal deadline is mandatory, and mandamus is appropriate
if a trial court denies a timely motion to dismiss filed pursuant to Section 263.401.
See In re Dep’t of Family & Protective Servs., 273 S.W.3d 637, 643–45 (Tex.
2009) (orig. proceeding); In re Tex. Dep’t of Family & Protective Servs., 210
                                         2
S.W.3d 609 (Tex. 2006) (orig. proceeding). The trial court in this case abused its
discretion when it denied Relator’s motion to dismiss. We note that a dismissal
under Section 263.401 is without prejudice and does not prohibit the Department
from filing another petition to terminate parental rights. In re M.N.G., 147 S.W.3d
521, 528 (Tex. App.—Fort Worth 2004, pet. denied).
      We conditionally grant a writ of mandamus. The Honorable Judge Aleta
Hacker is directed to vacate her order of November 8, 2013, and to dismiss the
underlying proceeding without prejudice as required by Section 263.401 of the
Family Code. A writ of mandamus will issue only if Judge Hacker fails to act by
January 10, 2014.




                                                   PER CURIAM


December 13, 2013
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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