IN THE INTEREST OF G.X.H., JR. AND B.X.H., CHILDREN
Appeal from the 313th District Court Harris County, Texas
Trial Court Cause No. 2017-04498J
consists of Justices Wise, Jewell, and Hassan.
accelerated appeal arises from a final decree in a suit in
which termination of the parent-child relationship was at
issue. See Tex. Fam. Code Ann. § 109.002(a-1).
The trial court terminated the parental rights of R.L.C.
(Mother) and G.X.H. (Father) with respect to their sons,
Gregory and Brandon. The trial court also appointed the Texas
Department of Family and Protective Services (the Department)
to be the boys' managing conservator.
appeal, Mother and Father contend the decree is void because
the trial on the merits did not commence before a statutory
deadline. Alternatively, they assert the evidence is legally
and factually insufficient to support termination. The
Department counters that the trial on the merits did commence
before the deadline, and even if it did not, the decree is
not void for various reasons.
agree the decree is void. Therefore, without reaching the
merits of the sufficiency challenges, we vacate the decree
and dismiss the underlying case.
September 1, 2017, the trial court in a parental termination
case automatically loses jurisdiction if the trial on the
merits does not begin by the deadline imposed by section
263.401(a) of the Texas Family Code. Section 263.401(a)
(a) Unless the court has commenced the trial on the merits or
granted an extension under Subsection (b) or (b-1), on the
first Monday after the first anniversary of the date the
court rendered a temporary order appointing the department as
temporary managing conservator, the court's jurisdiction
over the suit affecting the parent-child relationship filed
by the department that requests termination of the
parent-child relationship or requests that the department be
named conservator of the child is terminated and the suit is
automatically dismissed without a court order. Not later than
the 60th day before the day the suit is automatically
dismissed, the court shall notify all parties to the suit of
the automatic dismissal date.
undisputed the trial court did not grant an extension under
Subsection (b) or (b-1). Accordingly, the dates relevant to
our analysis are: (1) the date the court rendered a temporary
order appointing the Department as temporary managing
conservator; (2) the first anniversary of that date; (3) the
date of the following Monday; and (4) the date the trial on
the merits began.
trial court signed an Order for Protection of a Child in an
Emergency on September 21, 2017, the day suit was filed,
appointing the Department as the boys' temporary managing
conservator until a full adversary hearing was held. The full
adversary hearing was held on October 5, 2017, after which
the trial court signed an order appointing the Department as
Gregory's and Brandon's temporary managing
the first order started the section 263.401(a) clock, the
first anniversary of that date was Friday, September 21,
2018. The first Monday after that date was Monday, September
24, 2018. The trial on the merits began on October 17, 2018.
trial on the merits did not commence by the deadline imposed
by section 263.401(a), and no extension was granted under
section 263.401(b) or (b-1). As a result, the trial
court's jurisdiction terminated and the suit was
automatically dismissed on September 24, 2018. The decree,
which was signed after the trial court's jurisdiction had
terminated, is void.
Department offers three arguments why the decree is not void.
First, it contends the trial on the merits actually began
when the trial court considered evidence in February 2018 of
Father's paternity. Second, the Department says, a
pleading it filed after the automatic dismissal date
"was sufficient to confer jurisdiction on the
court." Third, on behalf of Gregory and Brandon, the
Department asserts section 263.401(a) is unconstitutional
facially and as applied. The boys' attorney ad litem
joins the Department's constitutional arguments.
The trial on the merits began in October 2018, not February
first question we face is one of statutory construction: what
does "commenced the trial on the merits" mean as
used in section 263.401(a)? That question usually arises in
the following context: the trial court called the case for
trial on or before the dismissal date, a witness briefly
testified, then the trial court recessed the trial until
after the dismissal deadline. Parents on appeal have argued
such proceedings before the dismissal deadline were a sham.
We recently encountered such an argument but did not reach
its merits because the appellants had not preserved the
complaint for appellate review. In re P.N.T., No.
14-18-01115-CV, ___ S.W.3d ___, 2019 WL 2426692, at *2 (Tex.
App.-Houston [14th Dist.] June 11, 2019, no pet. h.). Our
sister courts have considered whether an appointed
lawyer's failure to file a motion to dismiss in that
situation constituted ineffective assistance of counsel. They
have refused to find the lawyer to have provided ineffective
assistance when the claimed error is based on the
"unsettled law" of what constitutes commencement of
the trial on the merits. See In re P.M.W., 559
S.W.3d 215, 221 (Tex. App.-Texarkana 2018, pet. denied);
In re D.I., No. 12-16-00159-CV, 2016 WL 6876503, at
* 5 (Tex. App.-Tyler 2016, no pet.) (mem. op.); G.M. v.
Tex. Dep't of Family & Protective Servs., No.
03-15-00825-CV, 2016 WL 3522131, *3-*4 (Tex. App.-Austin June
23, 2016, no pet.) (mem. op.).
case is different, because there is no suggestion the trial
court called the case for trial, as that phrase is typically
used, on or before the dismissal date. Rather, the Department
contends the trial court "commenced the trial on the
merits" in February 2018, when it considered evidence of
objective in statutory construction is to give effect to the
Legislature's intent. We ascertain intent from the plain
meaning of the words used in the statute, because "the
best indicator of what the Legislature intended is what it
enacted." Sw. Royalties, Inc. v. Hegar, 500
S.W.3d 400, 404 (Tex. 2016). Several presumptions guide the
intent analysis. We presume the Legislature intended that (1)
the statute would comply with the United States and Texas
Constitutions, (2) the entire statute would be effective, (3)
the result would be "just and reasonable," (4) the
result would be feasible of execution, and (5) public
interest is favored over any private interest. Tex. Gov't
Code Ann. § 311.021. Courts may consider many factors in
construing a statute, including (1) the object sought to be
obtained, and (2) the circumstances under which the statute
was enacted. Tex. Gov't Code Ann. § 311.023(1)-(2);
Wal-Mart Stores, Inc. v. Forte, 497 S.W.3d 460, 466
presume the Legislature selected statutory words, phrases,
and expressions deliberately and purposefully and was just as
careful in selecting the words, phrases, and expressions that
were included or omitted. In re A.L.M.-F., No.
17-0603 ___, S.W.3d ___, 2019 WL 1966623, at *5 (Tex. May 3,
2019). We do not consider those words and phrases in
isolation; rather, "we consider the statute as a whole,
giving effect to each provision so that none is rendered
meaningless or mere surplusage." TIC Energy &
Chem., Inc. v. Martin, 498 S.W.3d 68, 74 (Tex. 2016).
"Trial on the merits"
Department asserts "commenced the trial on the
merits" should be construed according to its common
usage as dictated by the Code Construction Act. Tex.
Gov't Code Ann. § 311.011(a). The Code Construction
Act also states, "Words or phrases that have acquired a
technical or particular meaning, whether by legislative
definition or otherwise, shall be construed
accordingly." Id. § 311.011(b). The
Department contends "commenced" means
"began" and "the trial on the merits"
means "formal judicial examination of evidence and
substantive determination of all or part of the claims for
relief in the suit." Using those definitions, the
Department asserts the trial on the merits began when the
trial court considered evidence in February 2018 regarding
Father's paternity of Gregory and Brandon, because
determination of paternity was part of the relief the
Department requested in its original petition.
of parentage is governed by the Uniform Parentage Act,
codified in chapter 160 of the Family Code. That chapter
imposes its own procedures to adjudicate parentage. See
generally Tex. Fam. Code Ann. §§ 160.601-.637.
The result of such a proceeding is an "order
adjudicating parentage." Id. § 160.636.
several reasons, we disagree that a proceeding to adjudicate
paternity conducted as part of a suit for
termination of parental rights is "the trial on the
merits" in the termination suit. First, we look to the
language the Legislature chose. Chapter 160 creates a
"proceeding to adjudicate parentage." Tex. Fam.
Code Ann. ch. 160, subtitle G. If the Legislature intended
the deadline in section 263.401(a) to be satisfied by the
trial court's conducting a proceeding to adjudicate
parentage, it could have said so. Instead, it used the phrase
"the trial on the merits."
a hallmark of a proceeding to adjudicate parentage is the
prohibition of a jury. "The court shall adjudicate
paternity of a child without a jury." Id.§
160.632. By contrast, a suit for termination of
parental rights generally may be tried by a jury. Tex. Fam.
Code Ann. § 105.002. Characterizing a proceeding to
adjudicate parentage as part of "the trial on the
merits" would conflict with a party's constitutional
right to a jury trial in a suit to terminate parental rights.
Tex. Const. art. I, § 15 ("The right of trial by
jury shall remain inviolate."). Such a characterization
violates the first presumption of statutory ...