in the Interest of A.C.R. and J.A.R., Jr., Children ( 2009 )

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MEMORANDUM OPINION
No. 04-08-00643-CV
IN THE INTEREST OF A.C.R. and J.A.R.
From the 407th Judicial District Court, Bexar County, Texas
Trial Court No. 2008-CI-03285
Honorable Peter A. Sakai, Judge Presiding
Opinion by: Sandee Bryan Marion, Justice
Sitting: Sandee Bryan Marion, Justice
Phylis J. Speedlin, Justice
Marialyn Barnard, Justice
Delivered and Filed: April 15, 2009
DISMISSED FOR LACK OF JURISDICTION
In this restricted appeal from the trial court’s Order in Suit Affecting the Parent-Child
Relationship (“the Order”) appellant raises two issues: (1) her signature on the Order was not
sufficient to constitute “participation” in the underlying hearing and (2) there is error on the face of
the record because no record was made of the underlying hearing. We conclude the first issue is
dispositive; therefore, we address only that issue. See TEX . R. APP . P. 47.1. Because appellant is
precluded from obtaining review in this court by restricted appeal, we dismiss for lack of
jurisdiction.
04-08-00643-CV
DISCUSSION
To be entitled to a restricted appeal, appellant must establish that: (1) she filed a notice of
restricted appeal within six months after the Order was signed; (2) she was a party to the underlying
suit; (3) she did not participate in the hearing that resulted in the Order and did not timely file any
post-judgment motions or requests for findings of fact and conclusions of law; and (4) error is
apparent on the face of the record. Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex.
2004). The extent of participation sufficient to disqualify a party from entitlement to a restricted
appeal is a matter of degree. Stubbs v. Stubbs, 685 S.W.2d 643, 645 (Tex. 1985). On appeal,
appellant contends she did not “participate” in the hearing that resulted in the Order because she did
not receive notice of citation, did not waive citation, and she signed the Order prior to the hearing.
The Order’s recitation that appellant made a general appearance and that “[a]ll persons entitled to
citation were properly cited” contradicts appellant’s contention that she did not receive notice of
citation. Although appellant may have signed the Order prior to the hearing, she “approved and
consented to [the Order] as to both form and substance,” therefore, we presume she read the Order
and had knowledge of its contents prior to its entry. See Blankinship v. Blankinship, 572 S.W.2d
807, 808 (Tex. Civ. App.—Houston [14th Dist.] 1978, no writ); see also Kisinger v. Kisinger, 748
S.W.2d 2, 4 (Tex. App.—Houston [14th Dist.] 1987, no writ) (“deeming it significant that there is
nothing in the order itself or elsewhere in the record which indicates that it was an agreed order or
that appellant ‘approved’ it other than appellant’s signature standing alone.”). As such, appellant
was not in “the position of those who ‘discover that a judgment has been rendered against them after
judgment has been rendered.’” Blankinship, 572 S.W.2d at 808 (quoting Lawyers Lloyds of Tx. v.
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04-08-00643-CV
Webb, 137 Tex. 107, 152 S.W.2d 1096, 1097-98 (1941)). On this record, we conclude appellant
sufficiently participated in the underlying hearing; therefore, she is not entitled to a restricted appeal.1
CONCLUSION
We overrule appellant’s issues on appeal and dismiss the appeal for lack of jurisdiction.
Sandee Bryan Marion, Justice
1
… Even if appellant proved herself entitled to a restricted appeal, she raises no complaint on appeal about
the trial court’s Order. Therefore, with no basis on which to find harmful error, we could not reverse the Order and
remand to the trial court.
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