consists of: Wright, C.J., Willson, J., and Bailey, J.
Leon Fletcher, Jr., has filed in this court an original
mandamus proceeding seeking to compel the judge of the 259th
District Court of Jones County, the Honorable Brooks Hagler,
to vacate his order of November 22, 2016. In that order,
Judge Hagler denied Relator's motion to dismiss the
underlying proceeding- trial court cause no. 023702-a
parental termination case filed by the Department of Family
and Protective Services, a real party in interest. Judge
Hagler ruled that dismissal was not required by Section
263.401 of the Texas Family Code because he had issued a
continuance order pursuant to Section 161.2011, which
operated to stay the proceedings. Tex. Fam. Code Ann. §
161.2011 (West 2014), § 263.401 (West Supp. 2016). We
disagree and conditionally grant in part Relator's
petition for writ of mandamus.
that the Department concedes that Relator's petition for
writ of mandamus has merit as to the suit filed by the
Department. The Department agrees that the statutory deadline
under Section 263.401(a) passed, that no order extending the
deadline was entered under Section 263.401(b), and that the
trial court abused its discretion when it denied
Relator's motion to dismiss the Department's suit.
263.401(a) provides that a parental termination suit filed by
the Department 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 dismissal date, 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).
Under Section 161.2011, a parent whose rights are subject to
termination in a pending suit "and against whom criminal
charges are filed that directly relate to the grounds for
which termination is sought" may request a continuance
of the final trial in the termination proceeding until the
criminal charges are resolved. Id. §
161.2011(a). "Notwithstanding any continuance
granted, the court shall conduct status and permanency
hearings with respect to the child as required by Chapter 263
and shall comply with the dismissal date under Section
263.401." Id. (emphasis added).
underlying proceeding, the Department filed a petition
seeking to terminate Relator's parental rights. The
Department was appointed temporary managing conservator on
October 23, 2015. The judge set the original dismissal date
at October 24, 2016. Approximately a month before the trial
was set to commence, Relator requested a continuance pursuant
to Section 161.2011(a). The trial court granted the
continuance, but its order did not comply with any of the
provisions of Section 263.401(b) and did not extend the
mandatory dismissal deadline. On October 28, 2016, Relator
filed a motion for contempt and for dismissal, which Relator
amended on November 7, 2016. The trial court denied
Relator's amended motion on November 22, 2016. According
to the parties, trial is currently set for March 27, 2017.
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); In re Elliott,
No. 11-13-00323-CV, 2013 WL 6583957, at *2 (Tex.
App.-Eastland Dec. 13, 2013, orig. proceeding) (mem. op.).
The trial court in this case abused its discretion when it
denied Relator's motion to dismiss the suit filed by the
Department. 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).
also that the children's mother has filed pleadings in
the trial court in which she requests relief against Relator
and also requests that the trial court terminate
Relator's parental rights. Section 263.401 specifically
applies to termination suits "filed by the
department." Fam. § 263.401(a). The dismissal of
the Department's suit does not affect the mother's
affirmative claims for relief. See In re D.D.M., 116
S.W.3d 224, 231-32 (Tex. App.-Tyler 2003, no pet.) (holding
that trial court retained jurisdiction over intervenor's
claims for affirmative relief even though dismissal of
Department's suit was required by Section 263.401). We
hold that the mother's claims against Relator in this
cause shall not be affected by this opinion or by the
dismissal of the Department pursuant to Section 263.401.
conditionally grant in part Relator's petition for writ
of mandamus. The Honorable Judge Brooks Hagler is directed to
vacate his order of November 22, 2016, and to dismiss the
Department's suit without prejudice as required by
Section 263.401 of the Family Code. This mandamus does not
affect the affirmative request for relief brought by the
children's mother and filed in the trial court in ...