                         NUMBER 13-17-00544-CV

                           COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG


          IN THE INTEREST OF C.H., OAG #05556988921


                  On appeal from the 329th District Court
                       of Wharton County, Texas.


                         MEMORANDUM OPINION

            Before Justices Benavides, Hinojosa, and Perkes
                Memorandum Opinion by Justice Perkes

      This is a restricted appeal filed by the Office of the Attorney General of Texas

(OAG) from a final order setting aside various enforcement actions taken by the OAG to

collect alleged unpaid child support from appellee Everett Hughes. By two issues, the

OAG argues:     (1) the trial court lacked subject matter jurisdiction to review an

administrative suspension of Hughes’s driver’s license; and (2) the trial court lacked
subject matter jurisdiction to enjoin the OAG from taking future enforcement actions

against Hughes. We affirm in part and vacate and dismiss the case in part.

                                            I. BACKGROUND

        The 329th Judicial District Court of Wharton County, Texas ordered Hughes to pay

child support beginning in December 1996 for the benefit of his daughter Chardaa

Hughes.1 In October 1999, the same trial court issued an agreed Order Enforcing Child

Support Obligation, which included a cumulative money judgment against “EVERETT

HUGHES and in favor of the ATTORNEY GENERAL in the amount of $15,000.00, with

interest at the rate of 12% per annum, for collection and distribution according to the law.”

        In 2015, acting as the state’s Title IV-D agency, the OAG initiated collection efforts

against Hughes by sending a notice of child support lien to his bank, see TEX. FAM. CODE

ANN. §§ 157.311–.3145, and issuing administrative writs of withholding to his employers.2

See id. §§ 158.501–.505. Additionally, the OAG filed a petition with the State Office of

Administrative Hearings (SOAH) that resulted in the suspension of Hughes’s driver’s

license. See id. §§ 232.001–.009

        Hughes filed a motion in the trial court alleging the OAG’s collection efforts violated

Texas Family Code § 157.005(b) because the OAG failed to first obtain a cumulative




        1  Chardaa Hughes was born on November 28, 1987; therefore, it is no longer necessary to use an
alias to protect her identity. See TEX. R. APP. P. 9.8.

         2 In these documents, the OAG alleged Hughes owed more than $65,000 in unpaid child support,

not only for Chardaa, but also arising under a separate child support order. That order concerned a
different child and mother and was issued by the 300th Judicial District Court in Brazoria County, Texas in
May 2008. The trial court’s judgment in this case affects only the OAG’s efforts to enforce Chardaa’s child
support order; it has no bearing on the OAG’s enforcement remedies for the support order issued by the
300th Judicial District Court, which maintains continuing jurisdiction to enforce its separate support order.
See TEX. FAM. CODE ANN. § 157.269.

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money judgment against Hughes within ten years of Chardaa becoming an adult. 3

Hughes set his motion for hearing, and the OAG failed to appear.                        The trial court

rendered a judgment in Hughes’s favor and ordered the Texas Department of Public

Safety to lift his driver’s license suspension, declared any child support liens void,

rescinded the administrative writs of withholding, and ordered “that no further wages be

withheld in this cause or in OAG # 05556988921.”4 This restricted appeal ensued.

                                            II. DISCUSSION

        To prevail on a restricted appeal, a party must establish that: (1) it filed a 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 request for

findings of fact and conclusions of law; and (4) error is apparent on the face of the record.

See TEX. R. APP. P. 30; Pike-Grant v. Grant, 447 S.W.3d 884, 886 (Tex. 2014).

        In this case, the first and third elements are uncontested. We previously overruled

Hughes’s motion to dismiss based on the second element, concluding the OAG was a

party to the underlying suit. To satisfy the fourth element, the OAG challenges the trial

court’s subject matter jurisdiction on two separate grounds. Subject matter jurisdiction



        3   The OAG failed to challenge this legal argument on appeal; therefore, we express no opinion as
to its validity. See Wells Fargo Bank, N.A. v. Murphy, 458 S.W.3d 912, 916 (Tex. 2015) (holding that, other
than jurisdictional issues, an appellate court commits reversible error when it sua sponte raises grounds
that were not argued on appeal). The Court notes, however, that several courts of appeals have rejected
Hughes’s argument, holding that the limitations under § 157.005(b) do not preclude other enforcement
remedies, such as writs of withholding and child support liens. See In re D.W.G., 391 S.W.3d 154, 160
(Tex. App.—San Antonio 2012, no pet.) (collecting cases).
        4 The OAG assigns an internal case number to each Title IV-D case and 05568996921 is the case
number assigned to Chardaa’s case. The separate support order issued by the 300th Judicial District
Court in Brazoria County has a separate Title IV-D case number.

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is a question of law we review de novo. Nazari v. State, 561 S.W.3d 495, 522 (Tex.

2018) (citing Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)).

A.     Driver’s license claim

       By its first issue, the OAG argues that the trial court lacked subject matter

jurisdiction to review the SOAH’s decision because Hughes was statutorily required to file

his petition for judicial review in a Travis County district court. See TEX. GOV’T CODE ANN.

§ 2001.176(b). Because the modern trend is to protect the finality of judgments from

jurisdictional attacks, the Supreme Court of Texas requires “clear legislative intent” before

concluding a statutory requirement is jurisdictional. City of DeSoto v. White, 288 S.W.3d

389, 393 (Tex. 2009) (citing Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75–76 (Tex.

2000)). Therefore, we start with the presumption that the Legislature did not intend to

make § 2001.176(b)’s filing requirement jurisdictional unless clear legislative intent leads

us to a contrary conclusion. See id. at 394. As with any statutory provision, we look to

the plain language to determine legislative intent. Id. at 395 (citing F.F.P. Operating

Partners, L.P. v. Duenez, 237 S.W.3d 680, 684 (Tex. 2007)). Statutory construction is a

question of law we review de novo. City of Rockwall v. Hughes, 246 S.W.3d 621, 625

(Tex. 2008).

       When, as in this case, the OAG initiates an administrative proceeding to suspend

an obligor’s driver’s license, the proceeding is governed by the contested case provisions

under the Administrative Procedure Act (APA). TEX. FAM. CODE ANN. § 232.004(d). The

SOAH’s order suspending Hughes’s driver’s license was “a final agency decision subject

to review under the substantial evidence rule as provided by [the APA].” Id. § 232.010.

Under the APA, “[a] person initiates judicial review in a contested case by filing a petition


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not later than the 30th day after the date the decision or order that is the subject of

complaint is final and appealable.”     TEX. GOV’T CODE ANN. § 2001.176(a).          “Unless

otherwise provided by statute . . . the petition must be filed in a Travis County district

court.” Id. § 2001.176(b).

       The OAG has failed to provide us with any case authority to support its position

that this statutory filing requirement is jurisdictional, and we have found none. To the

contrary, at least two courts of appeals have concluded that § 2001.176(b) is a mandatory

venue provision. Combined Specialty Ins. Co. v. Deese, 266 S.W.3d 653, 666 (Tex.

App.—Dallas 2008, no pet.); In re Hartford Underwriters Ins. Co., 168 S.W.3d 293, 295–

96 (Tex. App.—Eastland 2005, no pet.). And in obiter dictum, the Supreme Court of

Texas suggested the same. See Morales v. Liberty Mut. Ins. Co., 241 S.W.3d 514, 516

n.1 (Tex. 2007) (in deciding whether § 2001.176(b) or another statute controlled, the

supreme court noted that the courts and parties had misconstrued the issue as one of

subject matter jurisdiction).

       We agree. The mandatory venue provisions in Chapter 15 of the Texas Civil

Practice & Remedies Code provide guidance. They require that a given cause of action

“shall be brought” in a given county.      See, e.g., TEX. CIV. PRAC. & REM. CODE ANN.

§ 15.015 (“An action against a county shall be brought in that county.”).            Section

2001.176(b)’s requirement that “the petition must be filed in a Travis County district court”

is simply another way of saying where the petition “shall be brought.” Compare TEX.

GOV’T CODE ANN. § 2001.176(b) with TEX. CIV. PRAC. & REM. CODE ANN. § 15.015; see

also TEX. CIV. PRAC. & REM. CODE ANN. § 15.016 (recognizing other mandatory venue

statutes exist outside Chapter 15).


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          If the Legislature had intended to confer Travis County district courts with exclusive

jurisdiction over Hughes’s appeal, it could have done so in express terms. See, e.g.,

TEX. EST. CODE ANN. § 32.005(a) (“In a county in which there is a statutory probate court,

the statutory probate court has exclusive jurisdiction of all probate proceedings,

regardless of whether contested or uncontested.”).           We presume this omission was

purposeful. See TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex.

2011) (“We presume that the Legislature chooses a statute’s language with care,

including each word chosen for a purpose, while purposefully omitting words not chosen.”

(citing In re M.N., 262 S.W.3d 799, 803 (Tex. 2008))). Because the plain meaning of

§ 2001.176(b) fails to express a “clear legislative intent” that the filing requirement is

jurisdictional, we reject the OAG’s argument. See City of DeSoto, 288 S.W.3d at 393.

          Unlike subject matter jurisdiction, the right to a mandatory venue may be waived

by failing to file a timely objection. TEX. R. CIV. P. 86; Deese, 266 S.W.3d at 666 (citing

Kshatrya v. Tex. Workforce Comm’n, 97 S.W.3d 825, 830 (Tex. App.—Dallas 2003, no

pet.)).    Even if the OAG had properly identified the issue in this Court, there is no

indication in the record that the OAG preserved its objection; according to the record

before us, the OAG never appeared in the proceeding. Therefore, the OAG has failed

to present an error that is apparent from the face of the record. See Pike-Grant, 447

S.W.3d at 886. We overrule the OAG’s first issue.

B.        Enjoining the OAG from issuing future writs of withholding

          By its second issue, the OAG complains that the trial court exceeded its subject

matter jurisdiction by enjoining the OAG from issuing any additional administrative writs

of withholding to enforce Chardaa’s support order. We agree.


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       Section 22.002(c) of the Texas Government Code provides:

       Only the supreme court has the authority to issue a writ of mandamus or
       injunction, or any other mandatory or compulsory writ or process, against
       any of the officers of the executive departments of the government of this
       state to order or compel the performance of a judicial, ministerial, or
       discretionary act or duty that, by state law, the officer or officers are
       authorized to perform.

TEX. GOV’T CODE ANN. § 22.002(c). The OAG is an officer of the executive department

of this state, TEX. CONST. art. IV, § 1, authorized to enforce and collect child support orders

by issuing administrative writs of withholding to an obligor’s employer. TEX. FAM. CODE

ANN. §§ 158.501(a), 231.101(a)(5). As such, only the supreme court has the authority

to enjoin the OAG from performing its statutory duty to enforce and collect Chardaa’s

support order by issuing writs of withholding to Hughes’s employers. See TEX. GOV’T

CODE ANN. § 22.002(c); In re C.D.E., 533 S.W.3d 367, 371–72 (Tex. App.—Houston [14th

Dist.] 2015, no pet.) (holding the trial court exceeded its authority by enjoining OAG from

issuing further child support liens); see also In re A.B., Jr., 267 S.W.3d 564, 565 (Tex.

App.—Dallas, 2008, no pet.) (holding the trial court acted without authority when it

ordered OAG to send child support payments to a private company).

       We determine whether an order constitutes an injunction based on its character

and function. Del Valle Indep. Sch. Dist. v. Lopez, 846 S.W.2d 808, 809 (Tex. 1992)

(citing Brines v. McIlhaney, 596 S.W.2d 519, 524 (Tex. 1980)). In this case, in addition

to ordering the rescission of any writs already issued by the OAG, the trial court ordered

“that no further wages be withheld in this cause or in OAG# 05568996921.” We agree

with the OAG that this portion of the order constitutes a prohibitive injunction as it restrains




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the OAG from issuing future administrative writs of withholding. See In re C.D.E., 533

S.W.3d at 372. We sustain the OAG’s second issue.

       A judgment rendered without subject matter jurisdiction is void.         Engelman

Irrigation Dist. v. Shield Bros., 519 S.W.3d 642, 645 (Tex. App.—Corpus Christi–Edinburg

2015) (citing Browning v. Prostok, 165 S.W.3d 336, 345 (Tex. 2005)), aff’d, 514 S.W.3d

746 (Tex. 2017). However, a judgment that is only partially void does not render the

entire judgment void. Kendziorski v. Saunders, 191 S.W.3d 395, 410 (Tex. App.—Austin

2006, no pet.). Therefore, we vacate the portion of the trial court’s final order enjoining

the OAG from issuing future administrative writs of withholding and dismiss that portion

of the case for want of jurisdiction.

                                        III. CONCLUSION

       We affirm in part and vacate and dismiss the case in part.




                                                              GREGORY T. PERKES
                                                              Justice

Delivered and filed the
17th day of October, 2019.




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