In THE INTEREST OF J.S., a CHILD v. the State of Texas ( 2023 )

Supreme Court of Texas
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No. 22-0420
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In the Interest of J.S., a Child
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On Petition for Review from the
Court of Appeals for the Fifth District of Texas
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Argued February 2, 2023
JUSTICE BUSBY delivered the opinion of the Court, in which Chief
Justice Hecht, Justice Lehrmann, Justice Devine, Justice Blacklock,
Justice Bland, Justice Huddle, and Justice Young joined.
JUSTICE BOYD filed a concurring opinion.
Every day, trial courts across Texas make findings in issuing
their orders. Although all findings play an important role in ensuring
that justice is delivered for the people of this State, few are as
consequential as the findings at issue in this parental rights termination
suit. The Legislature has directed courts to resolve these suits promptly
or they lose jurisdiction automatically. The statute does permit courts
to extend the automatic dismissal deadline, but a court “may not retain
the suit . . . unless” it “makes [two] findings”: (1) “extraordinary
circumstances necessitate the child remaining in the temporary
managing conservatorship” of the Department of Family and Protective
Services, and (2) continuing that conservatorship “is in the best interest
of the child.” TEX. FAM. CODE § 263.401(b).
We hold that although this unique statute requires trial courts to
make the “extraordinary circumstances” and “best interest” findings
expressly (either in writing or on the record), that requirement is
mandatory rather than jurisdictional. As a result, a parent whose rights
have been terminated cannot complain for the first time on appeal that
the trial court failed to make both findings when it granted an extension.
Instead, the parent generally must object before the initial automatic
dismissal deadline passes.
In this case, the trial court made only one of the required findings
when it extended the dismissal deadline. Respondent Mother appealed
a subsequent judgment terminating her parental rights and naming
petitioner Department of Family and Protective Services as the child’s
permanent managing conservator. The court of appeals vacated that
judgment sua sponte and dismissed the Department’s termination suit,
concluding that the trial court lost jurisdiction when it failed to make
the other required finding by the initial dismissal deadline. Because the
findings requirement is not jurisdictional and Mother did not timely
object that the trial court granted the extension without a required
finding, the court of appeals erred. Accordingly, we reverse its judgment
of dismissal and remand for it to address Mother’s appellate issues.
BACKGROUND
Two days after J.S. was born, the Department received a report
of abuse or neglect by Mother, who had tested positive for
methamphetamines at a prenatal visit. Although both Mother and J.S.
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tested negative at J.S.’s birth, both of J.S.’s parents have a significant
history of drug use and had previously lost custody of another child due
to their drug use.
In August 2019, J.S.’s parents were ordered to complete services
through the Department, including substance abuse and psychological
assessments, parenting classes, and random drug testing. From August
2019 until February 2020, J.S.’s parents refused to participate in those
court-ordered services despite many reminders and encouragements to
do so from the Department’s caseworker. When the caseworker made
an unannounced visit to the home in January 2020, she recorded
numerous safety and sanitation problems.
On February 4, 2020, the Department filed its initial petition to
remove J.S. from Mother and Father’s custody, terminate their parental
rights, and appoint the Department as J.S.’s permanent sole managing
conservator. The trial court signed temporary orders the same day
appointing the Department as temporary managing conservator, and
the Department then took possession of J.S., who required urgent
treatment for an ear infection. The day after coming into the
Department’s custody, J.S.’s hair follicle sample tested positive for
methamphetamines and marijuana, with the methamphetamine test
recording more than thirteen times the level needed to obtain a positive
result. At the time of trial in June 2021, J.S. had been in a foster-to-
adopt home for six months and had improved substantially since being
removed from the custody of his parents.
The Department’s termination suit was set for trial by remote
appearance on February 8, 2021, which was also the initial deadline for
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either commencing trial or dismissing the suit under Section 263.401(a)
of the Family Code. J.S.’s attorney ad litem did not appear. The trial
court asked counsel for both parents to confirm that their clients had
waived their jury trial rights. Both counsel denied that their clients had
done so, but both admitted that they had not filed timely jury demands.
The Department’s counsel noted that the parties had been aware of the
trial setting “since at least October, November.”
After conferring with counsel briefly off the record, the trial court
rescheduled the trial for June 14, 2021, without objection from any
party. Before the February 8 proceeding adjourned, the court asked the
parties if there was “anything else?” Counsel for the Department then
asked the trial court to “find that it’s in the child’s best interests to
remain in the care of the Department and extend the case so that it can
be officially retained on the Court’s docket” given the new orders and
timeline. In doing so, the Department’s counsel was requesting an
extension under Section 263.401 of the Texas Family Code, which
provides in relevant part:
(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 [department’s] suit . . . is
terminated and the suit is automatically dismissed
without a court order. . . .
(b) Unless the court has commenced the trial on the
merits, the court may not retain the suit on the
court’s docket after the time described by
Subsection (a) unless the court finds that
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extraordinary circumstances necessitate the
child remaining in the temporary managing
conservatorship of the department and that
continuing the appointment of the department as
temporary managing conservator is in the best
interest of the child. If the court makes those
findings, the court may retain the suit on the court’s
docket for a period not to exceed 180 days after the
time described by Subsection (a). If the court retains
the suit on the court’s docket, the court shall render
an order in which the court:
(1) schedules the new date on which the suit will
be automatically dismissed if the trial on the
merits has not commenced, which date must
be not later than the 180th day after the time
described by Subsection (a);
(2) makes further temporary orders for the safety
and welfare of the child as necessary to avoid
further delay in resolving the suit; and
(3) sets the trial on the merits on a date not later
than the date specified under Subdivision (1).
TEX. FAM. CODE § 263.401 (emphases added).
Neither Mother’s nor Father’s counsel objected to the
Department’s request for an extension. In response, the trial court made
an oral finding “that it’s in the best interests of the child for this case to
be extended, that the child remain in its current placement and that the
Department remain as the temporary managing conservator of the
child.” The court also set the new automatic dismissal date and ordered
that all of its previous orders would remain in place. The court did not
mention extraordinary circumstances.
Before concluding the February 8 proceeding, the trial court
asked two more times if there was “anything else” the attorneys wanted
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to bring to its attention. Counsel for both Mother and Father answered
no on the first occasion and were silent on the second.
On March 30, 2021, the trial court signed a written order
providing in relevant part:
Pursuant to § 263.401(b), Texas Family Code, the Court
finds that this Court has continuing jurisdiction of this
suit, and that extraordinary circumstances necessitate the
child remaining in the temporary managing
conservatorship of the Department and that continuing the
appointment of the Department as temporary managing
conservator is in the best interest of the child. An order to
retain the case on the Court’s docket should be granted.
The case then proceeded to a jury trial from June 14 to 16, 2021.
Attorneys for both Mother and Father participated, but neither Mother
nor Father appeared or testified at trial.
The jury ultimately found against Mother and Father and in favor
of the Department on all twelve questions submitted to it, returning the
verdict on the same day the trial concluded. The trial court’s final
judgment, signed September 20, 2021, echoed the jury’s findings and
terminated Mother’s and Father’s parental rights to J.S. under
paragraphs (D), (E), (N), (O), and (P) of Section 161.001(b)(1) of the
Family Code. The judgment also appointed the Department as J.S.’s
permanent managing conservator.
Only Mother appealed, challenging the legal and factual
sufficiency of the evidence supporting the jury’s findings, as well as some
of the trial court’s evidentiary rulings. The court of appeals requested
sua sponte that the parties brief whether the trial court lost jurisdiction
under Section 263.401(a) of the Family Code prior to trial and judgment.
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The court of appeals concluded that the trial court’s jurisdiction
expired on February 8, 2021—the first Monday after the first
anniversary of the date the trial court appointed the Department as
temporary managing conservator. 663 S.W.3d 784, 786 (Tex. App.—
Dallas 2022). Accordingly, it vacated the trial court’s September 2021
judgment and dismissed the case for want of subject-matter jurisdiction.
Id.In the court of appeals’ view, the trial court’s “written findings on
March 30 came too late to extend the jurisdictional period and maintain
the case on the court’s docket” under Section 263.401(a). Id. at 788. In
addition, the trial court’s oral findings on the record on February 8,
though timely, were insufficient to satisfy the requirement that the
court find “extraordinary circumstances.” Id. at 788-89. The court of
appeals interpreted our cases as holding that although some
requirements of Section 263.401(b) are not jurisdictional (including
setting the new dismissal date and trial date and making any necessary
temporary orders), the “extraordinary circumstances” and “best
interest” findings are jurisdictional and not subject to waiver. Id. at 789.
We granted the Department’s petition for review.
ANALYSIS
The Department raises two issues in its petition. First, it argues
that trial courts need not expressly make the twin findings required to
grant an extension under Section 263.401(b); rather, those findings
should be implied when supported by the record. Second, the
Department contends that even if the findings must be made expressly,
the trial court’s failure to do so does not deprive it of subject-matter
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jurisdiction. We address each issue in turn. Because both issues
concern statutory interpretation, and thus raise questions of law, we
review them de novo. Aleman v. Tex. Med. Bd., 573 S.W.3d 796, 802
(Tex. 2019).
I. The findings must be made expressly.
According to the Department, the language of Section 263.401(b)
is insufficiently explicit to require that a trial court make the predicate
findings expressly, so reviewing courts should imply them if supported
by the record. It also contends that there was ample evidence before the
trial court at the February 8 hearing to support an implied finding of
“extraordinary circumstances,” including: Mother’s and Father’s last-
minute requests for a jury trial, the absence of J.S.’s attorney ad litem
when the case was called for trial, and the logistical difficulties
associated with scheduling a jury trial while this Court’s COVID-19
Emergency Orders were in place.
We disagree that the findings may be implied. To the contrary,
our cases hold that trial courts “must make [the two] specific findings to
support the extension order” for “the suit to remain on the court’s docket
beyond the one-year dismissal date.” In re G.X.H., 627 S.W.3d 288, 298-
99 (Tex. 2021) (quoting in part In re Dep’t of Fam. & Protective Servs.,
273 S.W.3d 637, 643 (Tex. 2009) (hereafter “DFPS”)). And for good
reason: the Legislature has amended Section 263.401(b) at least four
times to emphasize the importance of “mak[ing] those findings”—which
involve depriving parents of fundamental constitutional rights—as well
as the close connection between the findings and the trial court’s subject-
matter jurisdiction.
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A. This Court’s precedents require express findings.
We have held twice that implied “best interest” and
“extraordinary circumstances” findings are inconsistent with
Section 263.401(b). In DFPS, we concluded that the trial court “cannot
just enter an extension order . . . . In order for the suit to remain on the
court’s docket beyond the one-year dismissal date, the court must make
specific findings to support the extension order.” 273 S.W.3d at 643
(emphases added). We reaffirmed that holding just two terms ago in
G.X.H., explaining that DFPS “recognized the importance of these two
findings” and quoting the above language from DFPS. 627 S.W.3d at
298-99. We thus concluded that to avoid error, the findings must be
“made orally on the record or in some other writing.” Id. at 299. We do
so again today.
Our decisions addressing implied findings have typically involved
implied findings of fact and conclusions of law to support a judgment,1
not a procedural case-processing requirement like the one at issue here.
In addition, our decision in G.X.H. to presume that the trial court made
the “extraordinary circumstances” and “best interest” findings orally at
a hearing of which no record was taken would have been unnecessary if
the findings could be implied. Id. In that event, we would have reviewed
the entire record of the case ourselves to confirm whether it could have
supported the G.X.H. trial court making those findings when it extended
the automatic dismissal date. But we did no such thing. Instead, we
1 See, e.g., Shields Ltd. P’ship v. Bradberry, 526 S.W.3d 471, 480 (Tex.
2017).
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assumed that the findings had been made orally but simply not
memorialized in a reporter’s record.
In this case, unlike in G.X.H., a record of the hearing is available
and it demonstrates that although the trial court did make the “best
interest” finding, it failed to make the “extraordinary circumstances”
finding. Although this failure was an error, it does not require reversal
for the reasons we explain in Part II.
B. The statute’s text and amendment history show that
express findings are mandatory.
The construction we adopted in DFPS and G.X.H. is well
grounded in the choices the Legislature made in crafting and amending
the text of Section 263.401. As our sister high court recently observed,
“[t]he starting point for determining statutory meaning is to examine
both the literal text and its context; and part of the statutory context
includes the history of the statute in question.” Stredic v. State, 663
S.W.3d 646, 659 (Tex. Crim. App. 2022) (emphasis added). Statutory
history “concerns how the law changed, which can help clarify what the
law means”; unlike legislative history, it “does not concern collateral or
speculative questions such as the policy goals that motivated individual
legislators, the reasons that a given version of a legislative proposal was
not adopted, or the like.” Brown v. City of Houston, 660 S.W.3d 749, 755
(Tex. 2023); see also Ojo v. Farmers Grp., Inc., 356 S.W.3d 421, 445 n.31
(Tex. 2011) (Willett, J., concurring) (“[N]obody should quarrel with
examining how an enacted statute changes over time.”); ANTONIN
SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF
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LEGAL TEXTS 256 (2012) (“[A] change in the language of a prior statute
presumably connotes a change in meaning.”).
In the case of Section 263.401(b), four different changes to
statutory language—in 2005, 2017, 2019, and 2021—demonstrate the
Legislature’s insistence that the “best interest” and “extraordinary
circumstances” findings be made expressly.
1. The 2005 amendments require trial courts to
“make th[e] findings.”
When Section 263.401 was first enacted in 1997, it provided for
an extension of the dismissal deadline if appointment of the Department
as temporary managing conservator was in the best interest of the child.
Act of May 31, 1997, 75th Leg., R.S., ch. 1022, § 90, 1997 Tex. Gen. Laws
3733, 3768-69. In 2001, the Legislature amended the statute to require
an extending court to “find[] that” continuing the appointment was in
the best interest of the child. Act of May 22, 2001, 77th Leg., R.S.,
ch. 1090, § 8, 2001 Tex. Gen. Laws 2395, 2396. And in 2005, it required
a finding of extraordinary circumstances as well. Act of May 29, 2005,
79th Leg., R.S., ch. 268, § 1.40, 2005 Tex. Gen. Laws 621, 636.
But more importantly for present purposes, the 2005 Legislature
also amended subsection (b) to provide that “[t]he court may not retain
the suit on the court’s docket . . . unless the court finds” both
extraordinary circumstances and best interest. Id. It then included a
second sentence: “If the court makes those findings, the court may retain
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the suit on the court’s docket for a period” up to 180 days.2 Id. (emphasis
added). This combination of “make findings” language with “may not
retain on the docket unless the court finds” language appears to be
unique to this particular statute. And the most relevant
contemporaneous definition of “make” involves affirmative and
observable actions by the “maker,”3 a quality that is definitionally
missing when an action is implied.
In addition, the only independent purpose served by the second
sentence is to require that the trial court actually “make[] those
findings” as a prerequisite to retaining the suit. TEX. FAM. CODE
§ 263.401(b). The prior sentence spells out which findings are required
to retain the suit, and the subsequent sentence provides that the
2 That sentence was in the statute in February 2021, when the relevant
trial court proceedings occurred, and it remains there today. See TEX. FAM.
CODE § 263.401(b).
3 Make, BLACK’S LAW DICTIONARY 975 (8th ed. 2004) (“1. To cause
(something) to exist . . . . 2. To enact (something) . . . . 3. To acquire
(something) . . . . 4. To legally perform, as by executing, signing, or delivering
(a document).”). Our concurring colleague criticizes us for giving “make” its
legal rather than its common, ordinary meaning, observing that citizens should
be able to “rely on the statue’s language to mean what it plainly says.” Post at
12. We agree that “[u]ndefined terms in a statute are typically given their
ordinary meaning, but if a different or more precise definition is apparent from
the term’s use in the context of the statute, we apply that meaning.” TGS-
NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011) (emphases
added) (citing In re Hall, 286 S.W.3d 925, 928-29 (Tex. 2009)). Here, context
unambiguously shows that Section 263.401(b)’s requirement to “make”
findings regulates the conduct of trial court judges, who are familiar with the
technical legal meanings of words. We therefore give the word “make” its
contemporaneous legal meaning and decline to hold that a court can make
these findings simply by imagining but not announcing them, as the
concurrence contends.
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extension is limited to 180 days. See id. Adopting an interpretation of
Section 263.401(b) that renders the sentence “pointless” would run afoul
of the presumption against surplusage. See SCALIA & GARNER, supra, at
176; see also State v. Shumake, 199 S.W.3d 279, 287 (Tex. 2006) (“In
construing a statute, we give effect to all its words and, if possible, do
not treat any statutory language as mere surplusage.”).
2. The 2017 amendments provide that the
findings are necessary to retain jurisdiction.
In 2017, the Legislature amended the statute again to provide
that making the “best interest” and “extraordinary circumstances”
findings is a prerequisite to avoiding automatic dismissal and
termination of the court’s jurisdiction. Act of May 28, 2017, 85th Leg.,
R.S., ch. 319, § 12, 2017 Tex. Gen. Laws 713, 718-19. Specifically, the
Legislature provided that “[u]nless the court has . . . granted an
extension under Subsection (b),” its “jurisdiction . . . is terminated and
the suit is automatically dismissed without a court order.” Id. Through
these amendments, the Legislature reaffirmed the hefty stakes of these
proceedings and demonstrated the importance of actually making the
“extraordinary circumstances” and “best interest” findings required by
subsection (b).
Since 2017, the findings have been “[a] condition[] precedent to
the right of the court to proceed after it has acquired jurisdiction over
the subject-matter and of the person” and a certain time has elapsed.4
Although we conclude in Part II that the findings are not themselves
4 Chandler v. Denton, 747 P.2d 938, 942 (Okla. 1987).
13
jurisdictional, the Legislature’s choice to give them an essential role in
avoiding the automatic termination of jurisdiction highlights their
mandatory nature.
This understanding of the findings requirement is also consistent
with the nature of these proceedings, which incorporate heightened
protections against government interference with parents’ fundamental
liberty interest in the care, custody, and control of their children. In re
N.G., 577 S.W.3d 230, 235 (Tex. 2019). In recognition of this interest,
all branches of Texas government have implemented strong due-process
protections for parents facing termination of their parental rights. See,
e.g., In re C.J.C., 603 S.W.3d 804, 807 (Tex. 2020) (citing TEX. FAM. CODE
§ 153.131(a)). This context also counsels in favor of enforcing plain
statutory prerequisites to the continued exercise of jurisdiction.
3. The 2019 and 2021 amendments add
mandatory “shall” language regarding the
findings.
Amendments passed by the Legislature in the two subsequent
sessions further confirm that the “extraordinary circumstances” and
“best interest” findings must be made expressly. In 2019, the
Legislature added Section 263.401(b-2) to the statute, which provides:
When considering under Subsection (b) whether to find
that extraordinary circumstances necessitate the child
remaining in the temporary managing conservatorship of
the department for a case in which the court orders a
parent to complete a substance abuse treatment program,
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the court shall consider whether the parent made a good
faith effort to successfully complete the program.5
The Legislature’s use of mandatory “shall consider” language in
this new subsection creates an intermediate step that trial courts are
obliged to take before making the “extraordinary circumstances” finding
in Section 263.401(b). Allowing trial courts to make the finding by
implication would collapse this careful, multi-step analysis into a single
on-the-fly call. We are not at liberty to provide trial courts with more
flexibility in these cases than the Legislature clearly specified they
should have.
Also informative are the most recent amendments to the statute,
which the Legislature adopted in the 2021 session. Those amendments
added Section 263.401(b-3),6 which provides:
(b-3) A court shall find under Subsection (b) that
extraordinary circumstances necessitate the child
remaining in the temporary managing
conservatorship of the department if:
(1) a parent of a child has made a good faith effort
to successfully complete the service plan but
needs additional time; and
(2) on completion of the service plan the court
intends to order the child returned to the
parent.
(Emphasis added). Like subsection (b-2), subsection (b-3) uses
mandatory language, in this case describing a non-exhaustive set of
5Act of May 22, 2019, 86th Leg., R.S., ch. 783, § 1, 2019 Tex. Gen. Laws
2228, 2228.
6See Act of Apr. 28, 2021, 87th Leg., R.S., ch. 8, § 9, 2021 Tex. Gen.
Laws 10, 15.
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circumstances under which a trial court “shall” make an “extraordinary
circumstances” finding. Albertson’s, Inc. v. Sinclair, 984 S.W.2d 958,
961 (Tex. 1999) (“We generally construe the word ‘shall’ as mandatory,
unless legislative intent suggests otherwise.”).
Although these 2021 amendments were not in force when the
February 8 hearing occurred, they provide further evidence of the
Legislature’s ongoing efforts to ensure that the “best interest” and
“extraordinary circumstances” findings must be made expressly as a
prerequisite to the trial court granting the extension and retaining the
suit on its docket. In sum, Section 263.401’s unique language,7
7 Our review of Texas statutes suggests that Section 263.401(b)’s
combination of “unless the court finds” language with “retain the suit on the
court’s docket” language is a unique formulation. Thus, our holding that
Section 263.401(b) requires express findings should not be understood to
indicate a view regarding other statutes that specify what actions a court
“shall” take “unless” it makes certain findings. Courts of appeals have taken
different approaches to such language, which appears in a variety of statutes.
Compare In re K.M.M., 326 S.W.3d 714, 715-16 (Tex. App.—Amarillo 2010, no
pet.) (construing Family Code Section 107.021(a-1) as requiring trial court to
make express finding that child’s interests will be adequately represented by
party to private termination suit, such that amicus attorney or attorney ad
litem need not be appointed), In re D.M.O., No. 04-17-00290-CV, 2018 WL
1402030, at *3 (Tex. App.—San Antonio Mar. 21, 2018, no pet.) (same), and
Mason-Murphy v. Grabowski, 317 S.W.3d 923, 928-29 (Tex. App.—Austin
2010, no pet.) (construing Family Code Section 153.317(a) as requiring trial
court to make express finding regarding child’s best interest when conservator
elects to alter standard possession times), with Ruiz v. Ruiz, No. 02-12-00136-
CV, 2013 WL 530958, at *3-4 (Tex. App.—Fort Worth Feb. 14, 2013, no pet.)
(construing Family Code Section 153.317(a) as allowing trial court to make
implied best-interest findings), In re F.R.N., No. 10-18-00233-CV, 2019 WL
3801630, at *5 (Tex. App.—Waco Aug. 7, 2019, no pet.) (construing Family
Code Section 153.131(a) as allowing trial court to make implied best-interest
findings when deciding not to appoint child’s parent(s) as sole managing or
joint managing conservator(s)), In re J.R.W., No. 05-15-01479-CV, 2017 WL
16amendment history, and fundamental-rights context, taken together,
demonstrate that trial courts must expressly make the “extraordinary
circumstances” and “best interest” findings either in a written order or
orally at a hearing, and their failure to do so is error.
C. The Department’s and concurrence’s arguments do
not alter the statute’s meaning.
The Department and the concurrence cite various cases and other
statutes in support of their position that the findings can be implied.
But their arguments are beside the point: they wrongly conflate a
requirement that the findings be made expressly with a requirement
that they be made in writing, and they incorrectly assume that if the
findings must be made expressly, they must be jurisdictional.
First, the Department and the concurrence contend that the
Legislature uses different language when it wishes to require express
findings, pointing to other provisions of the Family Code that direct trial
courts to issue orders stating certain findings. See, e.g., TEX. FAM. CODE
§§ 261.504(b), 263.002(b), 263.109(b)(1), 263.403(a)(1), (b)(1), (d),
264.203(n)(1). For instance, Section 263.109(b)(1) requires the trial
court to “render an order that . . . states the reasons for finding that
visitation [between a child and a parent] is not in the child’s best
interest,” and Section 263.403(b)(1) requires a court that orders a
3083930, at *5-6 (Tex. App.—Dallas July 20, 2017, pet. denied) (same), and
Estate of Nunu, 542 S.W.3d 67, 85-87 (Tex. App.—Houston [14th Dist.] 2017,
pet. denied) (construing trial court’s opinion as making implied finding under
Estates Code Section 405.001(b)). We take no position regarding whether
“unless the court finds” language, standing alone, requires a trial court to make
express findings.
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monitored return of a child to the child’s parent(s) to “include in the
order specific findings regarding the grounds for the order.” (Emphases
added).
All these statutes require trial courts to issue written findings.
The Department and the concurrence also point to a statute that
requires trial courts to “make findings in the record.”8 But no party in
this case contends that Section 263.401(b) requires trial courts to make
the required findings only in written orders or only on the record.
Rather, the question raised here is whether a trial court seeking to
retain a termination suit on its docket needs to actually “make” these
findings at all.
Two terms ago in G.X.H., we observed that trial courts could
comply with Section 263.401(b) by making the required findings orally
during a hearing, and no party has asked us to reconsider that holding.
627 S.W.3d at 299. “[I]n cases involving statutory construction, stare
decisis has its greatest force,” and we see no reason to depart from that
principle here. Bush v. Lone Oak Club, LLC, 601 S.W.3d 639, 655 (Tex.
2020) (internal quotation omitted). G.X.H. applied a presumption that
the trial court actually had made those findings orally because no
reporter’s record was available, and we explained that even though the
findings should be made in a written order “as a matter of course . . . ,
the failure to do so is not error, provided the findings are made orally on
the record or in some other writing.” 627 S.W.3d at 299.
8 TEX. FAM. CODE § 266.005 (requiring court declining to follow
recommendation of health care professional regarding child in the
Department’s conservatorship to “make findings in the record supporting the
court’s order”).
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Simply put, Section 263.401(b) gives trial courts some flexibility
regarding how they make the required findings. We agree with the
concurrence that the statute is “silent” in the sense that, unlike the
other statutes cited above, it allows courts to choose whether to express
their findings orally or in writing. But the unique language that the
Legislature selected for Section 263.401(b)—which combines “may not
retain the suit on the court’s docket” with “unless the court finds”—does
not give courts discretion to choose whether to express those findings.
Rather, it requires that the courts “make[] those findings” in some form.
Thus, there is no statutory silence that speaks to that issue. Cf. post at
14 (Boyd, J., concurring in judgment).9
Second, the Department argues that construing
Section 263.401(b) to allow implied findings would be consistent with
“the modern direction of policy,” which “is to reduce the vulnerability of
final judgments to attack on the ground that the tribunal lacked subject
matter jurisdiction.” Tex. Mut. Ins. Co. v. Chicas, 593 S.W.3d 284, 286
(Tex. 2019) (quoting Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex.
2000)). But this argument incorrectly assumes that if the findings are
9 As both our Court and the Supreme Court of the United States have
explained, “the force of any negative implication . . . depends on context.”
ConocoPhillips Co. v. Koopmann, 547 S.W.3d 858, 877 (Tex. 2018) (citing Marx
v. Gen. Revenue Corp., 568 U.S. 371, 381 (2013); Forest Oil Corp. v. El Rucio
Land & Cattle Co., 518 S.W.3d 422, 429 (Tex. 2017)). “[T]he expressio unius
canon does not apply unless it is fair to suppose that [the Legislature]
considered the unnamed possibility and meant to say no to it.” Forest Oil, 518
S.W.3d at 429 (internal citations and quotation marks omitted). Given the
differences between Section 263.401(b) and the other statutes on which the
Department and the concurrence rely, we conclude that the canon does not
apply.
19
mandatory, they are also jurisdictional. As we discuss next, these are
two different inquiries. We have often explained that “just because a
statutory requirement is mandatory does not mean that compliance
with it is jurisdictional.”10 Because a trial court’s failure to make the
mandatory Section 263.401(b) findings expressly does not affect the
separate jurisdictional inquiry, we reject the Department’s invitation to
collapse these issues.
II. Failing to make a mandatory finding does not deprive the
trial court of jurisdiction.
In its second issue, the Department urges us to reverse the court
of appeals’ dismissal because the trial court’s failure to make an express
“extraordinary circumstances” finding prior to the initial automatic
dismissal date did not divest the trial court of subject-matter
jurisdiction. It points out that statutory requirements are
presumptively non-jurisdictional and that jurisdictional language
originally appearing in Section 263.401(b)—which requires the
findings—was later removed by the Legislature. In addition, the
Department argues that we already held in G.X.H. that the findings,
although prerequisites to maintaining jurisdiction, are not themselves
jurisdictional requirements.
Mother counters that G.X.H. confirmed that Section 263.401(a) is
jurisdictional and expressly held that the finding requirements in the
10Albertson’s, 984 S.W.2d at 961; see also S.C. v. M.B., 650 S.W.3d 428,
443 (Tex. 2022); Chicas, 593 S.W.3d at 286; AC Ints., L.P. v. Tex. Comm’n on
Env’t Quality, 543 S.W.3d 703, 710 (Tex. 2018); City of DeSoto v. White, 288
S.W.3d 389, 395 (Tex. 2009); Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 494
(Tex. 2001).
20
first sentence of Section 263.401(b) are prerequisites for granting an
extension of the automatic dismissal date. See G.X.H., 627 S.W.3d at
297. Thus, she argues deductive reasoning suggests that the first
sentence in Section 263.401(b) must also be jurisdictional. Mother
further claims that the “other requirements” that G.X.H. held were not
jurisdictional referred to the requirements in the third sentence of
Section 263.401(b), rather than every single requirement other than the
“failure to timely extend the automatic dismissal date before that date
passes.” See id. at 301. In arguing that the findings are jurisdictional,
Mother favorably cites the Beaumont Court of Appeals’ recent decision
in In re F.S., which held that Section 263.401(b)
apparently allow[s] a party to collaterally attack a
judgment terminating a parent’s rights in the rare case
when the automatic-one-year-dismissal deadline has
passed and the trial court failed to state its extraordinary
circumstances and good cause findings on the record even
though it granted a party’s request to extend the statutory
deadline.
No. 09-22-00114-CV, 2022 WL 4371008, at *5 (Tex. App.—Beaumont
Sept. 22, 2022, pet. filed).
A review of the statutory text, amendment history, and our
precedent shows that the Department is correct. We presume that
statutory requirements are not jurisdictional absent “clear contrary
legislative intent.” Chicas, 593 S.W.3d at 287; see also Engelman
Irrigation Dist. v. Shields Bros., 514 S.W.3d 746, 752 (Tex. 2017); In re
United Servs. Auto. Ass’n, 307 S.W.3d 299, 306 (Tex. 2010); City of
DeSoto v. White, 288 S.W.3d 389, 393 (Tex. 2009). The only
jurisdictional language in Section 263.401 appears in subsection (a),
21
which provides that “the court’s jurisdiction . . . is terminated” on the
automatic dismissal date “[u]nless the court has . . . granted an
extension under Subsection (b) or (b-1).” TEX. FAM. CODE § 263.401(a).
That language was added to the statute in the 2017 amendments,11
which came sixteen years after the Legislature removed expressly
jurisdictional language from subsection (b) in 2001.12
The 2001 amendments to the statute—which deleted the phrase
“extend the court’s jurisdiction” from subsection (b) and replaced it with
“retain the suit on the court’s docket”13—demonstrate that a trial court’s
failure to make the required findings is a non-jurisdictional error. “[W]e
should always refrain from rewriting text that lawmakers chose, but we
should be particularly unwilling to reinsert language that the
Legislature has elected to delete.” Entergy Gulf States, Inc. v. Summers,
282 S.W.3d 433, 443 (Tex. 2009). In addition, the Legislature’s 2017
decision to make subsection (a) explicitly jurisdictional without
revisiting its removal of jurisdictional language from subsection (b)
provides further confirmation that the requirements of the latter
subsection are not jurisdictional.14
11
Act of May 28, 2017, 85th Leg., R.S., ch. 319, § 12, 2017 Tex. Gen.
Laws 713, 718-19.
12
Act of May 22, 2001, 77th Leg., R.S., ch. 1090, § 8, 2001 Tex. Gen.
Laws 2395, 2396.
13 See id.See Act of May 28, 2017, 85th Leg., R.S., ch. 319, § 12, 2017 Tex. Gen.
14
Laws 713, 718-19.
22
Our recent decision in G.X.H. supports this conclusion. There, we
held that although
a trial court’s failure to timely extend the automatic
dismissal date before that date passes—through a docket-
sheet notation or otherwise—is jurisdictional, claimed
defects relating to the other requirements of 263.401(b) are
not. Accordingly, with the exception of a trial court’s
failure to extend the automatic dismissal date before it
passes, complaints regarding the trial court’s compliance
with the requirements in subsection (b) must be preserved
for appellate review.
627 S.W.3d at 301. The “other” non-jurisdictional requirements of
Section 263.401(b) include all the requirements of that subsection except
the requirement that the trial court grant an extension of the initial
automatic dismissal date before it passes—a requirement that also
appears in subsection (a), which does contain jurisdictional language as
just discussed. See TEX. FAM. CODE § 263.401(a). Thus, although
subsection (b)’s requirements that the trial court make the
“extraordinary circumstances” and “best interest” findings are
mandatory, they are not jurisdictional. See M. P. v. Tex. Dep’t of Fam.
& Protective Servs., No. 03-22-00163-CV, 2022 WL 4281617, at *5 (Tex.
App.—Austin Sept. 16, 2022, pet. filed) (applying G.X.H. to hold that
trial court’s failure to make best interest finding before initial automatic
dismissal date passed was not jurisdictional error and was subject to
waiver by parents). We disapprove the contrary holding of F.S., 2022
WL 4371008, at *5.
G.X.H. explained that the trial court in that case did not need to
issue a written order expressly addressing the three matters
enumerated in the final sentence of Section 263.401(b). 627 S.W.3d at
23
300-01. In doing so, we declined to “loop” those requirements through
the jurisdictional language of Section 263.401(a), and we see no reason
to treat the “extraordinary circumstances” and “best interest” findings
any differently. Because there is no clear indication that the Legislature
wished to expand the jurisdictional requirements of Section 263.401
beyond the one we identified in G.X.H.—specifically, the requirement
that trial courts extend the automatic dismissal date before the date
passes through a docket sheet notation or otherwise—we hold that the
findings requirement is not jurisdictional.
This conclusion is also consistent with our decision in DFPS, in
which we held that the Section’s “retain the suit on the court’s docket”
language—which at the time also applied to the automatic dismissal
date—was not jurisdictional. 273 S.W.3d at 642. As we observed in
G.X.H., the Legislature’s 2017 amendments to subsection (a) changed
the consequence of the expiration of the dismissal deadline (absent an
extension or the commencement of trial) so that it is now jurisdictional.
627 S.W.3d at 295 n.4. But the same “retain the suit on the court’s
docket” language that we held was non-jurisdictional in DFPS continues
to apply to subsection (b)’s requirement that the court make
“extraordinary circumstances” and “best interest” findings. See TEX.
FAM. CODE § 263.401(b).
The concurrence disagrees, arguing that the findings under
subsection (b) must be jurisdictional because they are a “prerequisite” to
granting an extension of the automatic dismissal date, and such an
extension is necessary to avoid termination of jurisdiction under
subsection (a). Post at 4-5. But as discussed above, we presume the
24
opposite: statutory requirements are not jurisdictional absent clear
legislative intent to the contrary. Chicas, 593 S.W.3d at 287. And here,
the Legislature expressed its intent in 2001 by removing jurisdictional
language from subsection (b), which requires the findings.15 That
subsection now provides that a court “may not retain the suit on the
court’s docket” unless the findings are made. TEX. FAM. CODE
§ 263.401(b).
The concurrence contends this language must mean the same
thing as subsection (a)’s declaration that the court’s “jurisdiction over
the suit . . . is terminated.” Post at 4-5. To the contrary, “retain the suit
on the court’s docket” language generally refers to non-jurisdictional
dismissals “for want of prosecution without reference to the merits of
the case.” DFPS, 273 S.W.3d at 653 (Hecht, J., dissenting).
We recognized at the beginning of this century that “[t]he
classification of a matter as one of [subject-matter] jurisdiction . . . opens
the way to making judgments vulnerable to delayed attack for a variety
of irregularities that perhaps better ought to be sealed in a judgment.”
Dubai Petroleum Co., 12 S.W.3d at 76 (quoting RESTATEMENT (SECOND)
OF JUDGMENTS § 12 cmt. b, at 118 (1982)). We therefore adopted the
“modern direction of policy . . . to reduce the vulnerability of final
judgments to attack on the ground that the tribunal lacked subject
matter jurisdiction,” id. (quoting RESTATEMENT (SECOND) OF JUDGMENTS
§ 11 cmt. e, at 113 ), which is the reason we require “clear legislative
15 See id.
25
intent” to make a provision jurisdictional, Chicas, 593 S.W.3d at 287
(quoting United Servs. Auto. Ass’n, 307 S.W.3d at 306).
The concurrence’s view that a statutory prerequisite to a
jurisdictional requirement must likewise be jurisdictional would expand
the number of jurisdictional requirements significantly—contrary to our
policy of reducing the vulnerability of judgments to collateral attack.
“Importantly, the principal justification for this Court’s general
reluctance to view statutory requirements as jurisdictional—ensuring a
judgment’s finality—is even more pronounced” in cases involving child
custody and parental rights. In re D.S., 602 S.W.3d 504, 520 (Tex. 2020)
(Lehrmann, J., concurring). Holding that the express finding
requirements of Section 263.401(b) are jurisdictional would permit
relitigation of parental rights terminations years after judgments are
signed and children are permanently placed elsewhere, or even adopted.
“Such uncertainty harms children and parents alike.” Id.In sum, the only understanding of the scope of Section 263.401’s
jurisdictional requirements that comports with the text, structure, and
amendment history of that provision as well as our precedent is the one
urged by the Department. We therefore reject the alternative
interpretation urged by the court of appeals, Mother, and the
concurrence, which would make it an incurable jurisdictional error for
the trial court to fail to make the “extraordinary circumstances” and
“best interest” findings prior to the initial automatic dismissal deadline.
26
III. A court of appeals may not consider for the first time on
appeal whether the trial court failed to make a required
finding by the automatic dismissal deadline.
Applying these holdings here, we conclude that Mother did not
timely apprise the trial court of her complaint that it failed to make the
required “extraordinary circumstances” finding when it extended the
automatic dismissal deadline. Therefore, she could not present that
complaint for appellate review. See TEX. R. APP. P. 33.1(a). And the
court of appeals erred in raising this non-jurisdictional issue sua sponte.
See Pike v. Tex. EMC Mgmt., LLC, 610 S.W.3d 763, 782 (Tex. 2020).
The record of the February 8 hearing shows that Mother did not
mention the “extraordinary circumstances” finding, much less bring the
failure to make the finding to the trial court’s attention. When the court
asked if there were any objections to the Department’s motion for an
extension of the automatic dismissal deadline to accommodate Mother’s
jury trial request, Mother’s counsel answered “no.” Yet even if Mother
had opposed the extension, that would not have made the trial court
aware that she had a complaint regarding the missing finding.16 The
trial court asked three times at the hearing—twice after granting the
extension—whether there was “anything else” the parties needed it to
consider at the hearing. Mother’s counsel answered “no” once, and
Mother did not bring the missing finding to the trial court’s attention
16 We need not and do not decide today whether a parent who opposes
an extension must bring the missing finding to the trial court’s attention before
the initial dismissal deadline, or whether doing so during trial court
proceedings that occur after the deadline is sufficient to preserve the complaint
for appellate review.
27
either during or after the hearing. Because Mother did not object to the
trial court’s failure to comply with the non-jurisdictional findings
requirement prior to the initial automatic dismissal deadline, that error
cannot be addressed for the first time on appeal.17
Holding otherwise in this case would penalize the trial court for
doing its best to honor the parents’ last-minute requests for a jury trial,
“‘a substantive liberty guarantee of fundamental importance’ that holds
‘a sacred place in English and American history.’”18 Trial courts should
not fear reversal when they grant a parent’s last-minute jury trial
request and fail to use the magic words “extraordinary circumstances”
in discussing the resulting logistical difficulties. Nothing in
Section 263.401 requires that oral findings of extraordinary
circumstances and best interest be stated in precisely those terms. See
F.S., 2022 WL 4371008, at *6.
For these reasons, we hold that Mother did not preserve a
complaint that the trial court failed to make an express finding of
extraordinary circumstances when it extended the automatic dismissal
deadline. The court of appeals therefore erred in rendering a judgment
17 See In re C.J.P., No. 05-22-00233-CV, 2022 WL 7936574, at *4 (Tex.
App.—Dallas Oct. 14, 2022, pet. filed) (holding parent failed to preserve
complaint regarding trial court’s failure to make Section 263.401(b) findings);
M. P., 2022 WL 4281617, at *5 (“Mother did not raise her complaint about the
lack of a best interest finding until after the initial dismissal date had passed,
and a jury trial could have commenced before the initial dismissal date but was
reset based on Mother’s attorney’s request. In this context, Mother has not
preserved her arguments for our review.”).
18In re Troy S. Poe Tr., 646 S.W.3d 771, 781 (Tex. 2022) (Busby, J.,
concurring) (quoting Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 144 n.19
(Tex. 1994) and White v. White, 196 S.W. 508, 512 (Tex. 1917)).
28
of dismissal on the ground that the trial court lost jurisdiction on the
automatic dismissal date.
CONCLUSION
The text, structure, and amendment history of Section 263.401,
as well as our precedent, demonstrate that a trial court’s failure to make
the mandatory “extraordinary circumstances” and “best interest”
findings prior to the initial automatic dismissal deadline is a non-
jurisdictional error. Although these findings must be made expressly,
our normal error-preservation rules require that a failure to make them
must be brought to the trial court’s attention. Mother did not do so.
Because the trial court timely extended the automatic dismissal
date before it passed, it retained jurisdiction to hold the June 2021 jury
trial and render a judgment. We therefore reverse the court of appeals’
judgment dismissing the Department’s termination suit and remand to
that court for further proceedings on the merits of Mother’s appeal.
J. Brett Busby
Justice
OPINION DELIVERED: June 16, 2023
29