in the Matter of the Marriage of A.L.F.L. and K.L.L., and in the Interest of K.A.F.L., a Child ( 2014 )

Fourth Court of Appeals
San Antonio, Texas
August 13, 2014
No. 04-14-00364-CV
IN THE MATTER OF THE MARRIAGE OF A.L.F.L. AND K.L.L., AND IN THE
INTEREST OF K.A.F.L., A CHILD,
From the 438th Judicial District Court, Bexar County, Texas
Trial Court No. 2014-CI-02421
Honorable Barbara Hanson Nellermoe, Judge Presiding
CORRECTED ORDER
Sitting: Marialyn Barnard, Justice
Rebeca C. Martinez, Justice, Dissenting With Opinion To Follow
Patricia O. Alvarez, Justice
This is an accelerated appeal from the trial court’s denial of appellant’s plea to the
jurisdiction. On June 9, 2014, appellant, the State of Texas, filed a “Motion to Stay or Abate
Appeal.” In the motion, appellant claimed the issues in this appeal are similar to issues in two
cases pending before the Texas Supreme Court — In the Matter of the Marriage of J.B. & H.B.,
326 S.W.3d 654 (Tex. App.—Dallas 2010, pet. granted), and State v. Naylor, 330 S.W.3d 434
(Tex. App.—Austin 2011, pet. granted). We agreed the issues to be presented in this appeal are
similar to those issues pending before the Texas Supreme Court, i.e., the constitutionality of
Texas marriage law under article I, section 32 of the Texas Constitution and section 6.204 of the
Texas Family Code.
Thus, after reviewing the motion, appellee’s response, appellant’s reply, the clerk’s
record, and the cases pending before the supreme court, we agreed abatement was warranted. We
therefore granted the appellant’s motion and ordered the appeal abated and removed from this
court’s active docket. We advised that the appeal would be reinstated, at an appropriate time, by
order of this court.
On August 11, 2014, appellant filed an emergency motion asking this court to lift our
abatement for the limited purpose of granting an emergency stay. Specifically, appellant asserts
the trial court is continuing to conduct proceedings in this matter and this threatens our
jurisdiction with regard to the previously abated appeal. Appellant requests that we issue an
order staying the trial court’s order and all proceedings relating to the underlying divorce action
until this court ultimately rules on the accelerated appeal, i.e., the plea to the jurisdiction.
Appellee filed a response, in essence arguing we should not lift the abatement at appellant’s
request because appellant requested the abatement in the first instance — essentially an estoppel
argument.
After considering appellant’s motion and the response. We ORDER our previous
abatement lifted for the sole purpose of rendering this order. The abatement and removal from
our active docket remains in full force and effect but for the issuance of this order. We further
GRANT appellant’s motion and ORDER the trial court to stay all proceedings in this matter.
Specifically, we ORDER the trial court not to take any action relating to its June 30, 2014 order
or to take any other action with regard to the matters at issue in this interlocutory appeal. At issue
in this appeal is, among other things, the trial court’s subject matter jurisdiction over this matter.
Thus, we ORDER all trial court proceedings relating to this matter stayed, including trial on the
merits.
We order the clerk of this court to serve a copy of this order on all counsel and the trial
court.
_________________________________
Marialyn Barnard, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 25th day of August, 2014.
___________________________________
Keith E. Hottle
Clerk of Court