


NUMBER 13-00-218-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI
___________________________________________________________________


IN THE INTEREST OF M.A.W. AND M.A.W., CHILDREN
___________________________________________________________________


On appeal from the County Court at Law No. 5
of Nueces County, Texas.
___________________________________________________________________


O P I N I O N

Before Chief Justice Seerden and Justices Dorsey and

Rodriguez

Opinion by Justice Dorsey

	Appellant, Tomeika Williams, appeals from a judgment terminating
her parental rights to her two children, M.A.W. and M.A.W.  By three
issues appellant asserts that the trial court erred by denying her motion
for new trial, by failing to find that termination was in the best interest
of the children, and she argues that the trial court had no jurisdiction
over the case.  We affirm. 

I. Procedural History
	On August 25, 1999 the Texas Department of Protective and
Regulatory Services (the Department) took possession of appellant's
two children in Bexar County, Texas and filed a petition in the 45th
District Court of Bexar County, seeking termination of the parent-child
relationship.  The next day the Department was named temporary sole
managing conservator of the children.  On September 7, 1999 the 45th
District Court granted the Department's motion to transfer the case to
Nueces County, and on September 23, 1999, this case was assigned to
the 94th District Court of Nueces County, Judge Jack Hunter presiding. 
On November 16, 1999, the case was called before Judge Carl Lewis,
presiding judge of County Court at Law No. Five of Nueces County, for
consideration of a service plan.  At this hearing appellant signed an
Affidavit of Voluntary Relinquishment of Parental Rights.  By signing
this affidavit appellant indicated that she was freely, voluntarily, and
permanently relinquishing all of her parental rights and duties
concerning the two children to the Department.  Judge Lewis accepted
the affidavit, ordered the termination of appellant's parental rights with
respect to the two children, and ordered that the Department be named
as their managing conservator.

	On December 6, 1999 a decree of termination was signed in this
case.  On December 9, 1999 Judge Hunter signed an order transferring
the case from the 94th District Court to County Court at Law No. Five.

II. Jurisdiction
	By her first issue appellant asserts that because the case was not
transferred to County Court at Law No. Five until after the termination
decree was signed, Judge Lewis did not have jurisdiction over the case
when he terminated her parental rights, or at the time the decree was
signed.  She argues that because Judge Lewis did not have jurisdiction
over her case he had no authority to terminate her parental rights.  We
disagree.

	Effective September 1, 1999, the Texas Legislature created County
Court at Law No. Five and gave it jurisdiction of "any proceeding
involving an order relating to a child in the possession or custody of the
Department of Protective and Regulatory Services."  Tex. Fam. Code
Ann. § 25.1802(r)(2) (Vernon Supp. 2000).  When Judge Lewis heard
this case, the Department was seeking the termination of the parent-child relationship.  It had taken possession of the children and was
named their temporary sole managing conservator.  Because the
proceedings before Judge Lewis involved an order relating to children
in the possession or custody of the Department, Judge Lewis as the
judge of County Court at Law No. Five had jurisdiction to hear this case.

	The next question is whether Judge Lewis's termination of
appellant's parental rights was void due to the fact that the case was
not transferred to his court until after the termination decree was
signed.  Appellant failed to object on the basis that the case had not
been transferred to County Court at Law No. Five and, therefore, has
not preserved this issue for our review.  Tex. R. App. P. 33.1.  However
even if appellant had objected on this basis we conclude that Judge
Lewis had the authority to terminate appellant's parental rights even
though the case had not been transferred to him.

	Section 74.094(a) of the Texas Government code provides that:

	A district or statutory county court judge may hear and
determine a matter pending in any district or statutory
county court in the county regardless of whether the matter
is preliminary or final or whether there is a judgment in the
matter.  The judge may sign a judgment or order in any of
the courts regardless of whether the case is transferred.  The
judgment, order, or action is valid and binding as if the case
were pending in the court of the judge who acts in the
matter. . . .


Tex. Gov't Code Ann. § 74.094(a) (Vernon Supp. 2000) (emphasis
added).  In Camacho v. Samaniego, 831 S.W.2d 804 (Tex. 1992) the
court in its discussion of section 74.094(a) stated that "within a county,
district and statutory county court judges may exchange benches, sign
a judgment or order in another court without transferring the case, and
be subject to assignment of any trial or proceeding by the local
administrative judge."  Id. at 811.(1)  Accordingly section 74.094(a) did
not require the 94th District Court to transfer the case to County Court
at Law No. Five before Judge Lewis could terminate appellant's parental
rights.  See Camacho, 831 S.W.2d at 811.

	By this same issue appellant complains that the termination
decree was not signed by either Judge Lewis or Judge Hunter.  The
decree appears to be signed by Judge Manuel Banales, presiding judge
of the 105th District Court of Nueces County.  Because district and
statutory county court judges may sign a judgment or order in another
court without transferring the case we conclude that Judge Banales
had the authority to sign the decree.  See Camacho, 831 S.W.2d at 811.

	We hold that Judge Lewis had the authority to terminate
appellant's parental rights and that his decision to do so is not void. 
We overrule the first issue.

II. Findings Under Section 161.001

	By her second issue appellant argues that the trial court failed to
make any findings that termination of her parental rights was in the
best interest of the children.  Section 161.001(1) of the Texas Family
Code provides that in cases like the one before us involving an affidavit
of relinquishment, the trial court may order termination of the
parent-child relationship if the court finds by clear and convincing
evidence that the parent has:  "(K) executed before or after the suit is
filed an unrevoked or irrevocable affidavit of relinquishment of parental
rights as provided by this chapter; and (2) that termination is in the best
interest of the child."  Tex. Fam. Code Ann. § 161.001(1)(K) & (2) (Vernon
Supp. 2000).

	In the instant case the termination decree stated in relevant part
that the court "finds by clear and convincing evidence" that pursuant
to section 161.001(1) of the Texas Family Code that appellant "executed
before or after the suit is filed an unrevoked or irrevocable affidavit of
relinquishment of parental rights."  The decree also stated that the court
"finds based upon clear and convincing evidence presented in trial" that
"termination of the parent-child relationship between . . . [appellant]
and the children . . . [M.A.W. and M.A.W.], is in the best interest of the
children."  We hold that this language complies with the requirements
of section 161.001 and constitutes a finding that termination of
appellant's parental rights was in the best interest of the children.  We
overrule the second issue.

III. Motion For New Trial
	By her third issue appellant asserts that the trial court erred (1) by
accepting her affidavit of relinquishment, and (2) by failing to grant her
motion for new trial to revoke the affidavit because she signed it under
duress and without proper understanding.  Section 161.211(c) of the
Texas Family Code provides that "A direct or collateral attack on an
order terminating parental rights based on an unrevoked affidavit of
relinquishment of parental rights . . . is limited to issues relating to
fraud, duress, or coercion in the execution of the affidavit.  Tex. Fam.
Code Ann. § 161.211(c) (Vernon Supp. 2000).  In Neal v. Texas Dep't of
Human Servs., 814 S.W.2d 216 (Tex. App.--San Antonio 1991, writ
denied) the court stated that "[A]n involuntarily executed affidavit is a
complete defense to a termination suit or decree based solely upon a
finding under section [161.001(1)(K)] of the Family Code."  Id. at 219.

	In the instant case the evidence showed that appellant did not
make any claim of duress, overreaching, coercion, or fraud at the time
of the relinquishment or at the motion for new trial.  At the hearing on
the motion for new trial appellant's testimony was that when she
signed the affidavit of relinquishment she believed that it was in the
best interest of the children to relinquish her rights to them.  Appellant
knew what she was doing when she signed the affidavit and
understood that the affidavit was irrevocable.  Appellant indicated that
she had changed her mind and wanted her children returned to her. 
This evidence does not show that appellant executed the affidavit due
to fraud, duress, coercion, or that she involuntarily executed the
affidavit.  We hold that the trial court did not err by accepting her
affidavit and overruling the motion for new trial.  We overrule the third
issue.

	We affirm the trial court's judgment.


								______________________________

								J. BONNER DORSEY,

								Justice


Publish.

Tex. R. App. P. 47.3(b).


Opinion delivered and filed

this 5th day of October, 2000.

1. We point out that the Camacho Court also interpreted section
74.094(a) as "allowing a statutory county court judge to hear,
determine, and sign a judgment in a matter pending in district court
outside his court's jurisdiction without transferring the case."  Camacho,
831 S.W.2d at 811.

