                                            NO. 07-02-0274-CV

                                     IN THE COURT OF APPEALS

                            FOR THE SEVENTH DISTRICT OF TEXAS

                                                AT AMARILLO

                                                   PANEL E

                                        JANUARY 17, 2003
                                 ______________________________

                                      IN THE INTEREST OF L.J.S.

                              _________________________________

                FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;

                 NO. 2001-513,802; HON. BLAIR CHERRY, JR., PRESIDING
                          _______________________________

Before JOHNSON, C.J., QUINN, J. and BOYD, S.J.1

        Roy and Janis Simmons (the Simmons) appeal from an order terminating their

parental rights to L.J.S. Via one issue, they assert that the trial court was required to

dismiss the second petition for termination because it failed to allege new facts that were

not alleged in the first petition for termination. We affirm.

                                                 Background

         On November 10, 1999, the Texas Department of Protective and Regulatory

Services (TDPRS) removed L.J.S., a child, from the Simmons’ home. Upon removal,

L.J.S. was placed in an emergency shelter and on November 12, 1999, the TDPRS filed

its Original Petition for Protection of Child, for Conservatorship and for Termination in

cause number 92-539,677 in the 72nd District Court of Lubbock County (the first suit). By


        1
           John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. T EX . G OVT . C ODE
A N N . §75.002(a)(1) (Ve rnon Sup p. 2002).
its suit, the TDPRS sought to terminate the parent-child relationship between Simmons and

L.J.S.

         The TDPRS was appointed temporary managing conservator of L.J.S. Pursuant to

the Texas Family Code, if there was no final judgment, the dismissal date for the first suit

was November 13, 2000. See TEX . FAM . CODE ANN . §263.401. However, the dismissal

date was extended to May 9, 2001, as permitted by statute. Id. at §263.401(b). On May

3, 2001, a hearing on the TDPRS’ termination petition commenced. However, it was

continued due to the fact that one of the parties’ attorney had an emergency requiring him

to leave the trial. On May 6, 2001, the TDPRS filed a motion for non-suit. The trial court

signed an order granting the non-suit without prejudice on May 7, 2001. On the same day,

the trial court also signed an Order for Protection of a Child in an Emergency and Notice

of Hearing in cause number 2001-513,802 in the 72nd District Court (the second suit). The

trial court appointed the TDPRS as temporary managing conservator of L.J.S. Following

a full adversary hearing in the second suit, a family relative was appointed temporary

managing conservator of L.J.S. The dismissal date for the second suit was extended, and

a termination hearing was set for June 24, 2002. A pre-trial motion was filed requesting

the trial court to dismiss the suit because the second suit failed to allege any new facts

from the first suit. The motion was overruled and the hearing proceeded. Following the

hearing, the parent-child relationship between the Simmons and L.J.S. was terminated.

                                         Analysis

         Assuming arguendo that the TDPRS may be free to non-suit and reinitiate

proceedings, they cannot do so in a manner that violates statute or public policy. The

public policy here involved is encapsulated in §263.401(a) of the Texas Family Code. TEX .

                                             2
FAM . CODE ANN . §263.401(a) (Vernon 2002). That statute exists to facilitate permanence

and stability in the lives of children subjected to TDPRS involvement by limiting the time

within which the TDPRS can prosecute actions to terminate parental rights or have it

designated conservator. See In re T.M., 33 S.W.3d 341, 346 (Tex. App.–Amarillo 2000,

no pet.). And, that time is 12 months with, generally, no more than an extension of 180

days. TEX . FAM . CODE ANN . §263.401(a) & (b); In re T.M., 33 S.W.3d at 346.

       Now, to allow the statutory time period to be exceeded through legal maneuvering

of the TDPRS or any other party would undoubtedly run afoul of the public policy

underlying the provision. Indeed, the time limit must be heeded despite the desires and

machinations of the parties, In re T.M., 33 S.W.3d at 346-47, and, we are not free to

disregard or avoid the limitation. In re L.L., 65 S.W.3d 194, 197 (Tex. App.–Amarillo 2001,

no pet.). And, it is for this reason that the Simmons believe the trial court erred in refusing

to dismiss the second suit initiated by the TDPRS shortly after non-suiting the first. Indeed,

one can only wonder about the effect wrought upon the public policy underlying §263.401

if the TDPRS is free to non-suit on the eve of the §263.401 deadline and then re-file a like

suit immediately thereafter. That surely is not an effort to bring stability to the lives of

children. Nor does it resolve the suit in a timely manner as contemplated by the legislature.

       Nevertheless, we need not address whether the acts of the TDPRS constitute some

machination to thwart legislative edict. This is so because authority clearly allows it to

reinitiate the proceeding if new facts are alleged justifying relief on the same grounds

averred in the first action. In re T.M., 33 S.W.3d at 347; In re Ruiz, 16 S.W.3d 921, 927

(Tex. App.–Waco 2000, no pet.). Here, the TDPRS purported to aver such new facts in

its second suit, as evinced by the affidavit accompanying the petition. Additionally, those

                                              3
new facts purportedly arose after the first suit was filed (though some involved a

continuation of the conduct precipitating the first suit) and allegedly justified termination of

the parental rights of the Simmons. More importantly, neither of the Simmons tendered

argument or supporting authority in their appellate brief addressing all of these new facts

and explaining why none of them were truly new or why none independently warranted the

relief sought by the TDPRS in the second suit. Nor did they discuss the evidence

presented at the trial of the second action.         Instead, the Simmons discussed the

background of this case, mentioned evidence presented to the associate judge at the

hearing to determine whether the child should be temporarily removed, mentioned legal

authority interpreting §263.401 and the need to dismiss when the pertinent time limitation

is exceeded, and then opined that dismissal was appropriate because the second suit

“involved the same child, and . . . the [TDPRS] sought the same relief.” Yet, whether the

same parties are involved or relief sought is not determinative. Again, we and other courts

have recognized that a second suit can be initiated if new facts exist. And, if another suit

to terminate is filed, it is rather certain that the same parties and relief will be involved.

       In short, 1) the TDPRS purported to allege new facts warranting termination and 2)

the Simmons did not establish on appeal that the facts presented at the trial of the second

suit and upon which the judgment at bar was founded were none other than those

underlying the first suit. So, we cannot conclude that the TDPRS failed to allege and prove

new facts as contemplated by In re T.M. and In re Ruiz and that the trial court should have

dismissed the second suit. The judgment of the trial court is affirmed.


                                                   Brian Quinn
Johnson, C.J., concurs.                              Justice

                                               4
                                    NO. 07-02-0274-CV

                                IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL E

                                    JANUARY 17, 2003

                             ______________________________

                              IN THE INTEREST OF L.J.S.
                         _________________________________

             FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;

            NO. 2001-513,802; HONORABLE BLAIR CHERRY, JR., JUDGE

                             _______________________________

Before JOHNSON, C.J., QUINN, J. and BOYD, S.J.2


                                  CONCURRING OPINION


       At the beginning of the termination hearing in June, 2002, Roy Simmons moved to

dismiss the second suit on the basis that the TDPRS alleged no new facts when it filed the

second suit and that at the time the suit was filed on May 8, 2001, it was “the same case

it has always been . . . there were no new grounds to justify removal at the time the Petition

was filed, and this case should be dismissed because there wasn’t [sic] grounds to

continue it at that time.”




       2
      John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment.
       The relevant provisions of Section 263.401 provide that


              (a) Unless the court has rendered a final order or granted an
       extension under Subsection (b), on the first Monday after the first
       anniversary of the date the court rendered a temporary order appointing the
       department as temporary managing conservator, the court shall dismiss the
       suit affecting the parent-child relationship filed by the department that
       requests termination of the parent-child relationship or requests that the
       department be named conservator of the child.
                                           . . . . .
              (c) If the court grants an extension, the court shall render a final order
       or dismiss the suit on or before the date specified in the extension order and
       may not grant an additional extension.


       In construing a statute, we first look at the statute’s plain and common meaning, and

we presume that the Legislature intended the plain meaning of its words. See National

Liab. and Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000); Liberty Mut. Ins. Co. v.

Garrison Contractors, Inc., 966 S.W.2d 482, 484 (Tex. 1998). If possible, we must

ascertain the Legislature’s intent from the language it used in the statute and not look to

extraneous matters for an intent the statute does not state. See Helena Chem. Co. v.

Wilkins, 47 S.W.3d 486, 493 (Tex. 2001); Allen, 15 S.W.3d at 527.


       The language of Sections 263.401(a) and (c), which is the relevant language in this

matter, does not negate the general grant of authority extended to TDPRS to file an

original suit affecting the parent-child relationship. See Section 102.003(a)(5),(6); In re

L.L., 65 S.W.3d 194, 196 (Tex.App.--Amarillo 2001, no pet.) (standing of TDPRS to bring

or maintain suit for protection of a child or to terminate parental rights is prescribed by the

Legislature); In re T.M., 33 S.W.3d 341, 347 n.5 (Tex.App.--Amarillo, 2000, no pet.) (in

creating the suit contemplated by Section 263.401 the Legislature had the authority to

                                              6
determine its parameters). Nor does the plain language of Section 263.401 preclude the

TDPRS from dismissing a suit without prejudice.


       The Legislature has set out detailed standards and procedures for suits involving

protection of children and families. See, e.g., Family Code Chapters 262 and 263. If the

collective will of the Legislature had been to preclude the TDPRS from dismissing and then

re-filing suit as was done in this instance, it could have easily so provided. For example,

among the many choices which the Legislature could have made in limiting the general

authority of the TDPRS to dismiss and file suits, it could have provided in Section 263.401

that (1) the trial court shall dismiss the suit with prejudice; or (2) the suit and any other suit

based on the same facts and grounds shall be dismissed; or (3) following dismissal of a

first suit, no subsequent suit could be filed or maintained absent allegations of facts which

support removal of the child, and which facts occurred after filing [or dismissal of, or the

adversary hearing in] the first suit. The Legislature did not do so. Compare, e.g., TEX . REV.

CIV. STAT . ANN . art. 4590i § 13.01(e)(3) (Vernon Supp. 2003) (health care liability action

to be dismissed “with prejudice to the claim’s refiling” if claimant does not either timely file

expert report or voluntarily non-suit the action).


       In determining that TDPRS’ second suit did not have to be dismissed because new

facts were alleged in the second suit, the majority opinion references language of In re

T.M., 33 S.W.3d at 347 and In re Ruiz, 16 S.W.3d 921, 927 (Tex. App.--Waco 2000, no

pet.). However, the Simmons are not complaining that TDPRS improperly maintained

possession of L.J.S. via the emergency order signed on May 7th. Nor do they urge that

TDPRS’ possession of L.J.S. throughout the proceedings was improper because TDPRS’

                                                7
possession of L.J.S. was based on the same facts and grounds as the first suit. See In re

T.M., 33 S.W.3d at 347; In re Ruiz, 16 S.W.3d at 927.


       Section 263.401 does not require trial courts to determine that a subsequent suit is

based on “new facts” of some timing and character, or to otherwise dismiss the suit.

Regardless of whether new facts were pled and regardless of the nature of any new facts

pled, the plain language of Section 263.401 neither precluded TDPRS from filing the

second suit seeking to terminate the Simmons’ parent-child relationship with L.J.S., nor

mandated dismissal of the second suit. Thus, I concur in the result reached by the

majority.


                                                        Phil Johnson
                                                        Chief Justice




                                            8
