                                   NO. 07-04-00267-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                   JANUARY 13, 2005

                          ______________________________


                       IN THE INTEREST OF L.W.B., II, A CHILD


                        _________________________________

             FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;

              NO. 2003-520,737; HONORABLE KEVIN C. HART, JUDGE

                         _______________________________


Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


                                MEMORANDUM OPINION


       Appellants Louis Larry Baldwin and Mary Yvonne Baldwin challenge the trial court’s

judgment terminating their parental rights to their son, L.W.B., II and appointing the

Department of Family and Protective Services permanent managing conservator of the

child. Presenting a sole issue, the Baldwins contend reversal is required because the trial

court had a statutory duty to dismiss the petition to terminate the parent-child relationship

in cause number 2003-520,737 after the Department’s petition for termination was
dismissed in cause number 2001-514,702. The Department questions whether (1) the trial

court can consider facts that occurred prior to the adversary hearing in the first case when

it requests emergency relief in a second case, and (2) facts that occurred after the first

adversary hearing existed to support the trial court’s order granting emergency relief in the

second case. We affirm.


       On July 30, 2001, the Department filed an original petition for protection of a child,

conservatorship, and termination of the parent-child relationship. Before rendition of a final

judgment, on January 27, 2003, the Department filed a notice of non-suit without prejudice

and on that same date, the trial court signed an order dismissing the case without prejudice

to the refiling of the non-suited claims. Also on January 27, the Department filed a second

original petition for protection of a child, for conservatorship, and for termination of the

parent-child relationship. In response, by their original answer, the Baldwins presented a

general denial without raising res judicata or any other affirmative defense.


       When the 2003 case was called for trial, the Baldwins’ attorney objected to the trial

court’s jurisdiction to pursue the case after dismissal of the first case.1 The Department

and other parties announced ready. The Baldwins’ attorney did not file a written motion or

plea to the jurisdiction, plead res judicata, nor reference Rule 162 of the Texas Rules of

Civil Procedure nor sections 263.401 or 263.402 of the Texas Family Code. Following



       1
        Counsel renewed his objection to the trial court’s jurisdiction that had been raised
at the original adversary hearing.

                                              2
argument, the trial court proceeded to hear evidence and rendered judgment terminating

the Baldwins’ parental rights.


       By their only issue, the Baldwins contend the trial court had a statutory duty to

dismiss the Department’s petition to terminate the parent-child relationship. Specifically

they contend the 2001 and 2003 cases were based on the same facts and absent a new

factual basis, the trial court had a statutory duty to dismiss the 20032 case upon their timely

objection. We disagree.


       The Baldwins do not suggest that allegations of new facts were essential on grounds

that res judicata applied; rather, their argument is grounded on the dismissal date of the

termination per sections 263.401 and 263.402 of the Code. As we understand the

argument, they contend the statutory termination date for the 2001 case applied to the

2003 case because the latter was based on the same allegations as the first. However,

the Baldwins overlook the well-established rule that a non-suit without prejudice is not an

adjudication of the rights of the parties but instead merely places the parties in the position

they were in before the court’s jurisdiction was invoked just as if the suit had never been

instituted. See Crofts v. Court of Civil Appeals, 362 S.W.2d 101, 104 (Tex. 1962); see also

Yanez v. Milburn, 932 S.W.2d 725, 728 (Tex.App.--Amarillo1996, writ denied) (holding that




       2
       Although the summary of argument references the 2001 case, the context of the
issue applies to the 2003 case.

                                              3
in performing its ministerial function to dismiss the action upon a motion for non-suit, the

trial court does not adjudicate the merits of the case).


       Under Rule 162 the Department was authorized to take a non-suit at any time before

it had presented all of its evidence. In Rexrode v. Bazar, 937 S.W.2d 614, 619 (Tex.App.--

Amarillo 1997, no writ), we observed that Rule 162 was designed to allow a plaintiff to avoid

unexpected events or occurrences shortly before or during trial without proceeding to trial

on the merits and suffer an unfavorable judgment. Recently, we held that after a non-suit

the Department could file a second suit for termination. See In re L.J.S., 96 S.W.3d 692,

694 (Tex.App.--Amarillo 2003, pet. denied). In his concurrence, Chief Justice Johnson

noted that section 263.401 does not require new facts be alleged in a subsequent

proceeding. Id. at 696.


       Applying section 263.401, we have held that a Rule 11 agreement in an initial

proceeding would not support judgment beyond the mandatory dismissal date in a second

suit. See In re T.M., 33 S.W.3d 341, 345 (Tex.App.--Amarillo 2000, no pet.). We also held

that the Legislature did not provide for any judicial discretion but imposed a duty on the trial

court to dismiss the proceeding. See In re L.L., 65 S.W.3d 194, 197 (Tex.App.--Amarillo

2001, pet. dism’d). However, because neither sections 263.401 nor 263.402 prohibit a

second suit by the Department following a non-suit without prejudice, nor contain a

provision abrogating Rule 162 for purposes of those sections, we hold the trial court did not

have a statutory duty to dismiss the 2003 proceeding.


                                               4
       We have not overlooked the question of the trial court’s jurisdiction implied by the

Baldwins’ attorney in the trial court. However, because the 2001 amendment to section

263.401(b)3 removed the reference to the trial court’s jurisdiction and the Baldwins did not

present argument, it is not presented for review. The Baldwins’ sole issue is overruled.


       Our disposition of the Baldwins’ issue pretermits consideration of the Department’s

contentions. Accordingly, the judgment of the trial court is affirmed.




                                                   Don H. Reavis
                                                      Justice


Campbell, J., concurring.




                                    NO. 07-04-00267-CV

                               IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL A


       3
           Prior to the 2001 amendment, sub-paragraph (b) provided in part:

       [o]n or before the time described by Subsection (a) for the dismissal of the
       suit, the court may extend the court’s jurisdiction of the suit . . . . See Act of
       May 31, 1977, 75th Leg., R.S., ch. 1022, § 90, 1997 Tex. Gen. Laws 3733,
       3769.

                                               5
                                  JANUARY 13, 2005

                         ______________________________

                      IN THE INTEREST OF L.W.B., II, A CHILD
                       _________________________________

             FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;

              NO. 2003-520,737; HONORABLE KEVIN C. HART, JUDGE
                       _______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


                               CONCURRING OPINION


      I concur with the result reached by the majority. In my view, though, when the

Department of Family and Protective Services seeks termination of the parent-child

relationship, it may not take a nonsuit without the approval of the trial court. Tex. Fam.

Code Ann. § 161.203 (Vernon 2002). Here, as the court’s opinion notes, the trial court

signed an order dismissing cause number 2001-514,702 without prejudice in response to

the notice of nonsuit filed by the Department.


                                         James T. Campbell
                                             Justice




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