in the Interest of L. J. S., a Child ( 2003 )

NO. 07-02-0274-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

JANUARY 17, 2003

______________________________

IN THE INTEREST OF L.J.S.

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FROM THE 72 ND DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2001-513,802; HONORABLE BLAIR CHERRY, JR., JUDGE

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Before JOHNSON, C.J., QUINN, J. and BOYD, S.J. ^{(footnote: 1)}

CONCURRING OPINION

At the beginning of the termination hearing in June, 2002, Roy Simmons moved to dismiss the second suit on the basis that the TDPRS alleged no new facts when it filed the second suit and that at the time the suit was filed on May 8, 2001, it was “the same case it has always been . . . there were no new grounds to justify removal at the time the Petition was filed, and this case should be dismissed because there wasn’t [sic] grounds to continue it at that time.”

The relevant provisions of Section 263.401 provide that

(a)  Unless the court has rendered a final order or granted an extension under Subsection (b), 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 shall dismiss 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.

.   .   .   .   .

(c) If the court grants an extension, the court shall render a final order or dismiss the suit on or before the date specified in the extension order and may not grant an additional extension.     

In construing a statute, we first look at the statute’s plain and common meaning, and we presume that the Legislature intended the plain meaning of its words.   See National Liab. and Fire Ins. Co. v. Allen , 15 S.W.3d 525, 527 (Tex. 2000); Liberty Mut. Ins. Co. v. Garrison Contractors, Inc. , 966 S.W.2d 482, 484 (Tex. 1998).  If possible, we must ascertain the Legislature’s intent from the language it used in the statute and not look to extraneous matters for an intent the statute does not state. See Helena Chem. Co. v. Wilkins , 47 S.W.3d 486, 493 (Tex. 2001); Allen , 15 S.W.3d at 527.

The language of Sections 263.401(a) and (c), which is the relevant language in this matter, does not negate the general grant of authority extended to TDPRS to file an original suit affecting the parent-child relationship.   See Section 102.003(a)(5),(6); In re L.L. , 65 S.W.3d 194, 196 (Tex.App.--Amarillo 2001, no pet.) (standing of TDPRS to bring or maintain suit for protection of a child or to terminate parental rights is prescribed by the Legislature); In re T.M. , 33 S.W.3d 341, 347 n.5 (Tex.App.--Amarillo, 2000, no pet.) (in creating the suit contemplated by Section 263.401 the Legislature had the authority to determine its parameters). Nor does the plain language of Section 263.401 preclude the TDPRS from dismissing a suit without prejudice.

The Legislature has set out detailed standards and procedures for suits involving protection of children and families.   See , e.g. , Family Code Chapters 262 and 263.  If the collective will of the Legislature had been to preclude the TDPRS from dismissing and then re-filing suit as was done in this instance, it could have easily so provided.  For example, among the many choices which the Legislature could have made in limiting the general authority of the TDPRS to dismiss and file suits, it could have provided in Section 263.401 that (1) the trial court shall dismiss the suit with prejudice; or (2) the suit and any other suit based on the same facts and grounds shall be dismissed; or (3) following dismissal of a first suit, no subsequent suit could be filed or maintained absent allegations of facts which support removal of the child, and which facts occurred after filing [or dismissal of, or the adversary hearing in] the first suit.  The Legislature did not do so.   Compare , e.g ., Tex. Rev. Civ. Stat. Ann . art. 4590i § 13.01(e)(3) (Vernon Supp. 2003) (health care liability action to be dismissed “with prejudice to the claim’s refiling” if claimant does not either timely file expert report or voluntarily non-suit the action).            

In determining that TDPRS’ second suit did not have to be dismissed because new facts were alleged in the second suit, the majority opinion references language of In re T.M. , 33 S.W.3d at 347 and In re Ruiz , 16 S.W.3d 921, 927 (Tex. App.--Waco 2000, no pet.).  However, the Simmons are not complaining that TDPRS improperly maintained possession of L.J.S. via the emergency order signed on May 7th .  Nor do they urge that TDPRS’ possession of L.J.S. throughout the proceedings was improper because TDPRS’ possession of L.J.S. was based on the same facts and grounds as the first suit.   See In re T.M. , 33 S.W.3d at 347; In re Ruiz , 16 S.W.3d at 927.    

Section 263.401 does not require trial courts to determine that a subsequent suit is based on “new facts” of some timing and character, or to otherwise dismiss the suit.  Regardless of whether new facts were pled and regardless of the nature of any new facts pled, the plain language of Section 263.401 neither precluded TDPRS from filing the second suit seeking to terminate the Simmons’ parent-child relationship with L.J.S., nor mandated dismissal of the second suit.  Thus, I concur in the result reached by the majority.

Phil Johnson

Chief Justice

FOOTNOTES

1:

John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.