Opinion filed December 13, 2013




                                     In The


        Eleventh Court of Appeals
                                  __________

                              No. 11-13-00323-CV
                                  __________

                        IN RE RANDALL ELLIOTT


                         Original Mandamus Proceeding


                     MEMORANDUM OPINION
      Relator, Randall Elliott, 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 July 29, 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. In the
order, Judge Hacker determined that dismissal             was not required by
Section 263.401 of the Texas Family Code. TEX. FAM. CODE ANN. § 263.401
(West 2008). We disagree and conditionally grant Relator’s petition for writ of
mandamus.
      We first address an issue raised in the Department’s response to the petition:
res judicata. Relator previously filed a similar petition for writ of mandamus in
this court. We denied that petition without “evaluating the merits of Relator’s
complaints” because Relator failed to include the reporter’s record from the
hearing on his motion to dismiss. In re Elliott, No. 11-13-00314-CV, 2013 WL
5777028 (Tex. App.—Eastland Oct. 24, 2013, orig. proceeding) (mem. op.). We
disagree with the Department’s contention that our denial of Relator’s first petition
acts as a bar to the filing of another petition for writ of mandamus in this court or
to the relitigation of matters addressed in the first petition. As we expressly stated
in our opinion denying Relator’s first petition, we did not reach the merits of that
petition.   Nor did we deny that petition with prejudice.         We note that the
Department concedes that, if res judicata does not bar this court’s consideration of
Relator’s second petition for writ of mandamus, the petition has merit.          The
Department agrees that the statutory deadline under Section 263.401 had passed
and that Relator’s timely filed motion to dismiss should have been granted.
      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).
      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
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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 on
June 6, 2013, which the trial court denied on July 29, 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
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 July 29, 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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