Opinion issued August 27, 2013




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                              NO. 01-12-00635-CV
                            ———————————
                       RYAN LEE GRAHAM, Appellant
                                        V.
                  KELLY MICHELLE GRAHAM, Appellee



                   On Appeal from the 328th District Court
                          Fort Bend County, Texas
                    Trial Court Case No. 08-DCV-166575



                                  OPINION

      This appeal raises the question of this court’s jurisdiction over a contempt

order issued by an associate judge that was never adopted by the referring trial

court. We dismiss for want of jurisdiction.
                                    Background

      Appellee Kelly Michelle Graham filed a motion for enforcement of child

support in 2012, requesting that appellant Ryan Lee Graham be held in contempt

for failing to make various types of additional child support payments set forth in

the couple’s divorce decree. After a hearing, an associate judge signed an order

holding Ryan in contempt for failing to pay child support, ordering him to pay

arrearages, and authorizing withholding from his earnings. In response, Ryan filed

a motion for new trial and a request for findings of fact and conclusions of law. He

later filed notice of appeal of the associate judge’s order. The appellate record

contains no order of the referring court adopting the order of the associate judge.

      In his appeal, Ryan seeks review of the associate judge’s order and

mandamus relief. In response, Kelly raises the issue of this court’s jurisdiction to

hear either an appeal from an order of an associate judge or an original mandamus

proceeding challenging such an order.

                                     Discussion

      We have jurisdiction to consider an appeal from a “final order” rendered

under Title 5 of the Family Code, which includes orders on child support. TEX.

FAM. CODE ANN. § 109.002(b) (West Supp. 2012); Brejon v. Johnson, 314 S.W.3d

26, 33 (Tex. App.—Houston [1st Dist.] 2009, no pet.). Associate judges do not

have the power to render final judgment outside the context of certain limited


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exceptions listed in section 201.007 of the Family Code. See TEX. FAM. CODE

ANN. § 201.007(a)(14) (listing orders that associate judges may render and sign);

Chacon v. Chacon, 222 S.W.3d 909, 913 (Tex. App.—El Paso 2007, no pet.).

None of the exceptions listed in section 201.007, which include default and agreed

judgments, apply to this case. See TEX. FAM. CODE ANN. § 201.007(a)(14) (West

2009).

      Except when authorized by section 201.007, an associate judge’s proposed

orders or recommendations have only temporary effect, pending appeal to the

referring trial court. See id. § 201.013. In cases in which there is no appeal to the

referring court, the findings and recommendations of the associate judge will

become the order of the referring court when the referring court signs an order

conforming to the associate judge’s report. Id. § 201.013(b); Jackson v. Saradjian,

No. 01-11-00128-CV, 2012 WL 2357421, at *1 (Tex. App.—Houston [1st Dist.]

June 21, 2012, no pet.). If no party files an appeal to the referring court within

seven days, an order of an associate judge generally becomes an order or judgment

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

TEX. FAM. CODE ANN. § 201.1041(a).             However, an order “providing for

enforcement by contempt or the immediate incarceration of a party” will not

become final automatically.       Id.   Instead, a proposed order providing for

enforcement by contempt or immediate incarceration only becomes an order of the

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referring court if the referring court signs the associate judge’s proposed order or

judgment and the order meets the requirements for a contempt order listed in

section 157.166 of the Family Code. Id. § 201.1041(b).

      Because the contempt order at issue in this appeal was not adopted by the

referring court as a matter of law, the referring court retains the power to alter the

order, reject it, or conduct further proceedings. See id. § 201.014 (providing that

the referring court may adopt, modify, or reject the associate judge’s order, hear

further evidence, or recommit the matter to the associate judge unless a party

requested a de novo hearing). We lack jurisdiction to consider the appeal of an

associate judge’s order that is not final. Bowman v. Burks, No. 01-10-00219-CV,

2011 WL 2418475, at *2 (Tex. App.—Houston [1st Dist.] May 26, 2011, no pet.).

      Mandamus is the proper avenue to challenge an order of contempt not

involving confinement. In re Reece, 341 S.W.3d 360, 370 (Tex. 2011); Marcus v.

Smith, 313 S.W.3d 408, 419 (Tex. App.—Houston [1st Dist.] 2009, no pet.).

However, we do not have mandamus jurisdiction over the actions of an associate

judge. TEX. GOV’T CODE ANN. § 22.221(b) (West 2004) (providing for mandamus

jurisdiction only over a judge of a district or county court); In re Walker, No. 01-

08-00253-CV, 2008 WL 1830400, at *1 (Tex. App.—Houston [1st Dist.] Apr. 18,

2008, orig. proceeding) (per curiam); see also In re Weisinger, No. 14-12-00558-

CV, 2012 WL 3861960, at *1 (Tex. App.—Houston [14th Dist.] Sep. 6, 2012, orig.

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proceeding) (noting that the court of appeals did not possess mandamus

jurisdiction over an order of the same associate judge as in this case).

Accordingly, we lack jurisdiction to review the contempt order in this case.

                                     Conclusion

      Because the associate judge’s contempt order is not final and appealable,

and because our mandamus jurisdiction does not extend to the orders of an

associate judge, we dismiss the appeal for want of jurisdiction. In so concluding,

we note that Ryan need not be left without a remedy in the unlikely event that the

referring court does not act in response to this opinion.        Mandamus may be

available to compel the trial court to consider the associate judge’s proposed order

or conduct a new hearing. Bowman, 2011 WL 2418475, at *2 n.1; see also TEX.

FAM. CODE ANN. § 201.016(a) (“A party’s failure to request a de novo hearing

before the referring court or a party’s waiver of the right to request a de novo

hearing before the referring court does not deprive the party of the right to appeal

to or request other relief from a court of appeals or the supreme court.”).



                                              Michael Massengale
                                              Justice

Panel consists of Justices Jennings, Bland, and Massengale.




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