                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-16-00347-CV


IN RE H.F.                                                               RELATOR


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                           ORIGINAL PROCEEDING
                          TRIAL COURT NO. 184,345-C

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                         MEMORANDUM OPINION1

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      In this mandamus proceeding, relator Mother asks this court to order the

respondent trial court to vacate its order denying her motion to strike real party in

interest Grandmother’s plea in intervention in a suit affecting the parent-child

relationship (SAPCR).      We conditionally grant Mother’s petition for writ of

mandamus.




      1
       See Tex. R. App. P. 47.4.
                                 I. BACKGROUND

      On April 5, 2016, the Attorney General initiated a SAPCR in the 89th

District Court of Wichita County, Texas, involving Mother and Father to establish

conservatorship over, and seek current and retroactive child and medical support

for, their child. The district judge referred the suit to a Title IV-D associate judge,2

who held a hearing and signed an agreed order on June 20, 2016. See Tex.

Fam. Code Ann. §§ 201.101, .104(c). On June 23, 2016, Father filed a notice of

appeal in the referring court, the entire substance of which stated as follows:

“Comes now, [Father], Respondent herein and gives notice that he appeals the

order of the Title IV-D Court Master entered on Monday, June 21, 2016 [sic] and

requests a truce [sic] de novo in the [district court].”       See Tex. Fam. Code

Ann. § 201.1042.     That same day, Grandmother filed her original petition in

intervention seeking to intervene in the SAPCR pursuant to section 102.004 of

the Texas Family Code. See Tex. Fam. Code Ann. § 102.004(b) (West 2014).

      2
       The record reflects that there was some confusion during the hearing on
Mother’s motion to strike Grandmother’s petition in intervention concerning the
applicable statutory provisions governing the powers of associate judges and
procedures for obtaining de novo review of an associate judge’s orders in a
SAPCR. Chapter 201 of the Texas Family Code governs the authority of
associate judges and procedures for de novo review of an associate judge’s
orders in SAPCR cases. See generally Tex. Fam. Code Ann. §§ 201.001–.320
(West 2014 & Supp. 2016). Relevant to this case, Chapter 201 distinguishes
between an “Associate Judge,” and an “Associate Judge for Title IV-D Cases.”
See id. §§ 201.001–.018 (Associate Judge), .101–.113 (Associate Judge for Title
IV-D Cases). We note that the underlying SAPCR here is a Title IV-D case, and
consequently, the authority of the associate judge and the procedures for de
novo review of the associate judge’s orders in this case are governed by sections
201.101–.113 of the Texas Family Code.


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      On July 27, 2016, Mother filed a motion to strike Grandmother’s plea in

intervention and to dismiss Father’s appeal of the Title IV-D associate judge’s

June 20, 2016 order, and the district court held a hearing on that motion on

August 15, 2016. At the hearing, the crux of the disagreement between Mother

and Grandmother was whether the Title IV-D associate judge’s June 20, 2016

order had become final such that the SAPCR was no longer pending. After

hearing argument on that issue from Mother and Grandmother, which at times

became somewhat contentious, the trial court ruled that the Title IV-D associate

judge’s June 20, 2016 order was not a final order, denied Mother’s motion to

strike Grandmother’s intervention, and granted Grandmother leave to intervene.

On August 30, 2016, the district court signed an order memorializing both its

finding that the Title IV-D associate judge’s June 20, 2016 order was not a final

order and its ruling denying Mother’s motion to strike Grandmother’s plea in

intervention. The district court’s August 30, 2016 order did not, however, include

its ruling granting Grandmother leave to intervene that it made at the August 15,

2016 hearing.

      Mother filed her petition for writ of mandamus on September 19, 2016,

asking this court to vacate the trial court’s order denying her motion to strike

Grandmother’s plea in intervention. Because we reached the tentative opinion

that a serious question concerning the relief required further consideration, we

requested that Grandmother respond to Mother’s petition. Grandmother notified



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us in writing that although she believes Mother’s petition lacks merit, “she does

not wish to continue to oppose [Mother’s] [w]rit of [m]andamus request.”

                          II. STANDARD OF REVIEW

      Mandamus relief is proper only to correct a clear abuse of discretion when

there is no adequate remedy by appeal. In re State, 355 S.W.3d 611, 613 (Tex.

2011) (orig. proceeding). Mandamus is proper if a trial court issues an order

after its plenary power expires. In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex.

2000) (orig. proceeding). Such an order is void and constitutes an abuse of

discretion. Id. Moreover, when a trial court has entered a void order, the relator

need not show that it does not have an adequate remedy by appeal, and

mandamus relief is appropriate. Id.

                            III. APPLICABLE LAW

      A trial court has the discretion to grant a grandparent or other person

deemed by the court to have had substantial past contact with the child leave to

intervene in a pending SAPCR if there is satisfactory proof that appointment of a

parent as a sole managing conservator or both parents as joint managing

conservators would significantly impair the child’s physical health or emotional

development. Tex. Fam. Code Ann. § 102.004(b). By its terms, this provision

permits a trial court to grant a grandparent leave to intervene only in a pending

SAPCR. Id. Here, Mother contends that the trial court abused its discretion by




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denying her motion to strike because there was no SAPCR pending in which

Grandmother could intervene.

      An order that disposes of all pending parties and claims in the record is a

final appealable order. Lehmann v. Har-Con Corp., 39 S.W. 3d 191, 195 (Tex.

2001); Jasek v. Tex. Dep’t of Family & Protective Servs., 348 S.W.3d 523, 529

(Tex. App.—Austin 2011, no pet.) (“A final order in a SAPCR that purports to

dispose of all issues and all parties is a final appealable order.”). A SAPCR

proceeding is no longer pending once a final order has been issued. See Jasek,

348 S.W.3d at 529.

      Title IV–D associate judges do not have the authority to render and sign a

final order on the merits in a Title IV-D case. Tex. Fam. Code Ann. § 201.104(b).

However, they do have authority to recommend to the referring court any order

after a trial on the merits. Id. § 201.104(c). A party subject to a Title IV-D

associate judge’s proposed order or judgment has the right to request a de novo

hearing before the referring court. Id. § 201.1042. Such a request must specify

the issues that will be presented to the referring court.       Id. §§ 201.015(b),

201.1042(a)–(b). If a party timely files a request for a de novo hearing, the Title

IV-D associate judge’s proposed final order remains in full force and effect and is

enforceable as an order of the referring court pending a de novo hearing before

the referring court. Id. § 201.1041(c). But if a party fails to timely request a de

novo hearing, or if it waives its right to request a de novo hearing, a Title IV-D



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associate judge’s proposed order or judgment becomes the order or judgment of

the referring court by operation of law without ratification by the referring court.

Id. §§ 201.015(b), .1041(a)–(b).

      Except for circumstances not applicable here, section 201.1042(a) makes

section 201.015’s de novo hearing procedures applicable to a party’s request for

a de novo hearing of a Title IV-D associate judge’s proposed order.            See

id. § 201.1042(a). Thus, in order to request a de novo hearing on a Title IV-D

associate judge’s proposed order, the appealing party must file a notice with the

referring court no later than the third working day after the Title IV-D associate

judge signed the proposed order. Id. § 201.1042(b). That request must “specify

the   issues     that   will   be      presented    to    the   referring    court.”

Id. §§ 201.015(b), .1042(a). If a party’s request for a de novo hearing is timely

filed but fails to specify the issues that will be presented to the referring court,

then the request is insufficient to entitle the party to a de novo hearing.

Id. §§ 201.015(b), .1042(a); In re E.M., 54 S.W.3d 849, 851–52 (Tex. App.—

Corpus Christi 2001, no pet.) (holding party not entitled to de novo hearing

because his request, though timely filed, failed to state specific findings or

conclusions of associate judge to which he objected).

                                   IV. DISCUSSION

      Here, Father’s request for a de novo hearing was deficient because it did

not specify any issues that he would be presenting to the referring court.



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See Tex. Fam. Code Ann. §§ 201.015(b), .1042(a)–(b); In re E.M., 54 S.W.3d at

851–52. This lack of specificity rendered his notice insufficient to entitle him to a

de novo hearing before the referring court. See In re E.M., 54 S.W.3d at 851–52.

A Title IV-D associate judge’s proposed final order becomes the final order of the

court by operation of law without further action of the referring court if a request

for a de novo hearing specifying the issues that will be presented to the referring

court is not filed within three working days after the Title IV-D associate judge

signed the proposed final order. Tex. Fam. Code Ann. §§ 201.1041(a), .1042(b).

Thus, because Father’s request for a de novo hearing did not meet the statutory

requirements for such a request, we conclude that the Title IV-D associate

judge’s proposed final order, which was signed on June 20, 2016, became the

final order of the referring court by operation of law no later than June 23, 2016,

and consequently, the SAPCR ceased to be pending no later than that date.

See Tex. Fam. Code Ann. §§ 201.015(b), .1041(a), .1042(a)–(b); Lehmann,

39 S.W. 3d at 195; In re E.M., 54 S.W.3d at 851–52; Jasek, 348 S.W.3d at 529;

see also In re D.J.L., 05-10-00203-CV, 2010 WL 3636327, at *1–2 (Tex. App.—

Dallas Sep. 21, 2010, no pet.) (calculating plenary power deadlines using date

associate judge’s proposed order became the order of the referring court by

operation of law).

      A trial court has plenary power to grant a new trial or to vacate, modify,

correct, or reform a final judgment within thirty days after the judgment is signed.



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Tex. R. Civ. P. 329b(d). Although a party can extend this thirty-day period by

timely filing a motion for new trial, no such motion was filed here. Tex. R. Civ. P.

329b(c), (e). “Judicial action taken after the expiration of the court’s jurisdiction is

a nullity, and any orders signed outside the court’s plenary jurisdiction are void.”

Malone v. Hampton, 182 S.W.3d 465, 468 (Tex. App.—Dallas 2006, no pet.)

(citing State ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995)); see

Bennetsen v. Mostyn Law Firm, No. 01-14-00184-CV, 2015 WL 1778356, at *2–3

(Tex. App.—Houston [1st. Dist.] Apr. 16, 2015, no pet.) (mem. op.) (holding trial

court’s order denying party’s motion to strike petition in intervention was void

when entered after trial court’s plenary power expired).

      The trial court’s plenary power over the final order here expired no later

than thirty days after the Title IV-D associate judge’s proposed order became the

final order of the court on June 23, 2016 by operation of law. Tex. R. Civ. P.

329b; see In re D.J.L., 2010 WL 3636327, at *1–2. Once a trial court has lost

plenary power over its final judgment, it cannot be set aside by the trial court

except by bill of review for sufficient cause, filed within the time allowed by law.

Tex. R. Civ. P. 329b(f).

      Although Grandmother filed her original petition in intervention on June 23,

2016, she did not become a party to the SAPCR merely by filing that petition.

Rather, under Texas Family Code section 102.004(b), a trial court must grant a

grandparent leave to intervene before the grandparent may do so. Tex. Fam.



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Code Ann. § 102.004(b); In re A.T., No. 14-14-00071-CV, 2014 WL 11153028, at

*8–9 (Tex. App.—Houston [14th Dist.] July 15, 2014, no pet.) (mem. op. on

reh’g). The trial court did not grant Grandmother leave to intervene prior to June

23, 2016, the date on which the SAPCR proceeding ceased to be pending. And

because no postjudgment motions were filed that extended the trial court’s

plenary power over its final order, the trial court lost plenary power over the final

order well before the August 15, 2016 hearing on Mother’s motion to strike

Grandmother’s petition in intervention. See Tex. R. Civ. P. 329b. The trial court

therefore had no power on that date to grant Grandmother leave to intervene in

the SAPCR or to enter an order denying Mother’s motion to strike Grandmother’s

petition in intervention. See Bennetsen, 2015 WL 1778356, at *3–4.

      Because the trial court entered its order denying Mother’s motion to strike

Grandmother’s petition in intervention after its plenary power expired, we

conclude that order is void and that the trial court abused its discretion in entering

it. See In re Sw. Bell Tel. Co., 35 S.W.3d at 605; Bennetsen, 2015 WL 1778356,

at *3–4. Further, when a trial court has entered a void order, the relator need not

show that it does not have an adequate remedy by appeal, and mandamus relief

is appropriate. See In re Sw. Bell Tel. Co., 35 S.W.3d at 605.

                                 V. CONCLUSION

      Having concluded that the trial court abused its discretion by entering an

order denying Mother’s motion to strike Grandmother’s petition in intervention



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and that mandamus relief is appropriate, we sustain Mother’s sole issue. We

conditionally grant the writ. We are confident that the trial court will vacate its

order denying Mother’s motion to strike Grandmother’s petition in intervention

signed on August 30, 2016. See In re O’Donnell, No. 2-06-002-CV, 2006 WL

563325, at *3 (Tex. App.—Fort Worth Mar. 9, 2006, orig. proceeding) (mem. op.)

(“We are confident that the trial court will vacate” orders it entered after plenary

power expired). A writ will issue only if the trial court fails to do so.


                                                       /s/ Lee Gabriel

                                                       LEE GABRIEL
                                                       JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

DELIVERED: November 14, 2016




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