in the Interest of T.J.H., W.D.H., and L.B.H., Children , 530 S.W.3d 682 ( 2015 )

NO. 12-15-00062-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
IN THE INTEREST OF § APPEAL FROM THE 145TH
T.J.H., W.D.H., AND L.B.H., § JUDICIAL DISTRICT COURT
CHILDREN § NACOGDOCHES COUNTY, TEXAS
MEMORANDUM OPINION ON REHEARING
The Texas Attorney General’s Office filed a motion for rehearing, which is overruled.
However, we withdraw our opinion of September 16, 2015, and substitute the following opinion
in its place.
C.H. appeals the trial court’s modification order in a suit affecting the parent child
relationship to his children T.H., W.H., and L.H. He raises three issues on appeal. We reverse
and remand.
BACKGROUND
On March 29, 2010, C.H. was named sole managing conservator of T.H., W.H., and L.H.
Their mother, J.S., was appointed possessory conservator of the children. On July 27, 2011, the
children’s maternal grandparents filed a motion to modify the parent-child relationship.
Approximately three years later, the Attorney General’s Office filed a “Notice of Change of
Status and Motion for Further Orders” seeking to modify the trial court’s support order and
require C.H. to pay child support.
On November 25, 2014, an associate judge conducted a hearing, and appointed the
grandparents and J.S. as joint managing conservators and C.H. as possessory conservator of
T.H., W.H., and L.H.1 This appeal followed.
JURISDICTION VERSUS AUTHORITY
In his first issue, C.H. contends the associate judge did not have jurisdiction to hear the
case and there is no authority that supports an “automatic transfer” of a case to an associate judge
“simply because the “[Attorney General] files an intervention.” Jurisdiction is always a
threshold issue, but C.H.’s argument involves more than an identification of the court with
jurisdiction over this case. Because “jurisdiction” differs from a judge’s “authority,” we explain
the difference between the two in order to dispose of C.H.’s first issue.
Jurisdiction
A court acquires continuing, exclusive jurisdiction in a suit affecting the parent-child
relationship on the rendition of a final order. See TEX. FAM. CODE ANN. § 155.001(a) (West
2014). The Nacogdoches County Court at Law has concurrent jurisdiction with the district court
over family law cases. See TEX. GOV’T CODE ANN. 25.1762 (West Supp. 2014).
Subchapter C of Chapter 155 of the family code governs the transfer of cases from courts
of continuing, exclusive jurisdiction. See generally TEX. FAM. CODE ANN. §§ 155.201–.207
(West 2014). Sections 155.201 and 155.202 provide that a transfer of jurisdiction is initiated by
a motion to transfer, and Section 155.204 sets forth the procedures involved in transferring a
proceeding from the court of continuing, exclusive jurisdiction to another court. See generally
TEX. FAM. CODE ANN. §§ 155.201, 155.202, 155.204.
Absent a motion to transfer with a corresponding order, a court with continuing,
exclusive jurisdiction maintains its jurisdiction unless (1) an order of adoption is rendered after
the court acquires continuing, exclusive jurisdiction; (2) suit involved a dissolution of marriage
and the parents remarried and filed a subsequent suit for dissolution of marriage combined with a
suit affecting the parent-child relationship; or (3) another court assumed jurisdiction over suit
and rendered a final order based on incorrect information that there was no court of continuing,
1
Although the grandparents’ motion to modify the parent-child relationship sought the relief the associate
judge granted in his order on the Attorney General’s motion, it is unclear whether the associate judge considered the
grandparents’ pleadings when he issued the order. Our disposition in this case does not turn on whether the
associate judge considered those pleadings when he issued his order.
2
exclusive jurisdiction. See TEX. FAM. CODE ANN. § 155.004 (West 2014); see also TEX. FAM.
CODE ANN. § 155.002 (West 2014) (“Except as otherwise provided by this subchapter, a court
with continuing, exclusive jurisdiction retains jurisdiction of the parties and matters provided by
this title.”).
Discussion
On May 5, 2010, the presiding judge of the 145th Judicial District signed the final order
in a suit affecting the parent-child relationship concerning C.H. and his children. Thus, the 145th
District Court is the court of continuing, exclusive jurisdiction for this matter. See TEX. FAM.
CODE ANN. § 155.001(a), (c). The record shows that after the final order was rendered,
subsequent pleadings were styled “In the County Court at Law Nacogdoches County,” “In the
District Court 145th Judicial District Nacogdoches County, Texas,” or “In the ____ District
Court of Nacogdoches County, Texas.”
C.H. contends that the case was transferred to the county court at law because it is
identified in the parties’ pleadings, and his citation states that he is being sued in the “County
Court at Law.”
The record contains no motion to transfer this proceeding from the district court to the
county court at law. See generally TEX. FAM. CODE ANN. §§ 155.201–.207. There is no evidence
that an adoption was rendered; that there was a dissolution of marriage, a remarriage, and a
subsequent dissolution combined with a suit affecting the parent-child relationship; or that
another court assumed jurisdiction and rendered a final order based on incorrect information that
there was no court of continuing, exclusive jurisdiction. See TEX. FAM. CODE ANN. § 155.004(a).
Moreover, there is no order that transfers this case to the Nacogdoches County Court at Law, and
every pleading contains the district clerk’s stamp. See TEX. FAM. CODE ANN. §155.207
(requiring clerk of transferring court to send pleadings, final orders, and order of transfer to the
transferee court).
Conclusion
Although the record contains pleadings that suggest the case was heard before the county
court at law, the fact that there are no motions or orders to transfer this case to the county court at
law, and the absence of evidence that one of the intervening events described in Section
155.004(a) occurred, supports our conclusion that this case was never transferred to the
3
Nacogdoches County Court at Law. The 145th District Court was, and continues to be, the court
of continuing, exclusive jurisdiction. See TEX. FAM. CODE ANN. § 155.002.
Authority
The judge who signed the order that is the subject of this appeal is not the presiding judge
of the 145th District Court. Thus, we must determine whether the judge who signed the order,
the Honorable Joe Perkins, had the authority to do so. We construe C.H.’s contention that his
case was automatically “transfer[red]” to mean that his case was automatically “referred.”
Automatic Referral of Cases
The presiding judge of each administrative judicial region shall determine which courts
require the appointment of a full time or part-time associate judge to complete each Title IV-D
case within the required statutory time period. See TEX. FAM. CODE ANN. § 201.101(a) (West
2014). A Title IV-D case is an action in which services are provided by the Title IV-D agency
“relating to the location of an absent parent, determination of parentage, or establishment,
modification, or enforcement of a child support or medical support obligation.” TEX. FAM. CODE
ANN. § 101.034 (West 2014). The Title IV-D agency in Texas is the Attorney General’s Office.
TEX. FAM. CODE ANN. § 231.001 (West 2014).
When an associate judge is appointed to hear Title IV-D cases, all Title IV-D cases shall
be referred to the associate judge by a general order for each county issued by the judge of the
court for which the associate judge is appointed. Id. § 201.101(d). In the absence of that order,
the referral must be by a general order issued by the presiding judge who appointed the associate
judge. Id.2 “Referral of Title IV-D cases may not be made for individual cases or case by case.”
Id.
2
We note that the Legislature amended Section 201.101(d) during its 2015 regular legislative session.
Specifically, the language “[i]f the presiding judge determines that a court requires an associate judge for Title IV-D
cases, the presiding judge shall appoint an associate judge for that purpose,” was removed. 2015 Tex. Sess. Law
Serv. Ch. 1182 (S.B. 1139) (West 2015). Thus, Section 201.101(d) now reads as follows:
Except as provided under Subsection (e), if an associate judge is appointed for a court under this
subchapter, all Title IV-D cases shall be referred to the associate judge by a general order for each
county issued by the judge of the court for which the associate judge is appointed, or, in the
absence of that order, by a general order issued by the presiding judge who appointed the associate
judge. Referral of Title IV-D cases may not be made for individual cases or case by case.
Id. Our analysis and disposition are not affected by the amendments to subsection (d).
4
Here, Presiding Judge Mary Murphy of the First Administrative Judicial Region signed
an order on February 14, 2014, referring all Title IV-D cases to associate judges for courts in the
First Administrative Judicial Region.3 On February 18, 2014, Judge Murphy signed another
order re-appointing Judge Perkins to “devote full-time service to the duties of a Title IV-D
Associate Judge.”4
When the Attorney General filed its notice of changed status, it instituted a Title IV-D
case. See TEX. FAM. CODE ANN. § 101.034. Thus, C.H.’s case was automatically referred to
Judge Perkins because the referral is mandatory under Section 201.101(d).
C.H. complains that he was never put on notice to object to Judge Perkins’s appointment,
and cites to Section 201.005 of the family code. Section 201.005 grants a judge the authority to
refer “any aspect” of a suit affecting the parent-child relationship to an associate judge. See TEX.
FAM. CODE ANN. § 201.005(a) (West 2014). This section also provides that an objection to the
referral is required to prevent the associate judge from hearing “the trial on the merits or preside
at a jury trial.” Id. § 201.005(b), (c). However, Section 201.005 does not apply because this was
a Title IV-D case and referral was mandatory. See TEX. FAM. CODE ANN. § 201.101(d).
Nevertheless, automatic referral of a case to a Title IV-D associate judge does not grant
the associate judge authority to rule on all issues presented in the pleadings without express
authority to do so.
A. Authority of the Title IV-D Associate Judge
An associate judge appointed to preside over Title IV-D cases may hear and render an
order on (1) a suit to modify or clarify an existing child support order; (2) a motion to enforce a
child support order or revoke a respondent’s community supervision and suspension of
commitment; (3) a respondent’s compliance with the conditions provided in the associate judge’s
report for suspension of the respondent’s commitment; or (4) a motion for postjudgment relief if
neither party has requested a de novo hearing before the referring court. TEX. FAM. CODE ANN.
§ 201.104(e) (West 2014). The family code does not authorize a Title IV-D associate judge to
modify conservatorship. See generally TEX. FAM. CODE ANN. § 201.101–.113 (West 2014).
3
The First Administrative Judicial Region includes Nacogdoches County. TEX. GOV’T CODE ANN.
§ 74.042(b) (West Supp. 2014).
4
Pursuant to Rule 34.5(c)(1), the clerk’s record was supplemented to include the February 2014 orders of
referral and appointment. See TEX. R. APP. P. 34.5(c)(1) (“If a relevant item has been omitted from the clerk’s
record, the trial court, the appellate court, or any party may by letter direct the trial court clerk to prepare, certify,
and file in the appellate court a supplement containing the omitted item.”)
5
The order that Judge Perkins signed modifies child support and conservatorship.
Specifically, Judge Perkins appointed the children’s maternal grandparents and their mother as
joint managing conservators, and appointed C.H. as possessory conservator of the children.
Judge Perkins was appointed “pursuant to Section 201.101” of the family code, which
means he was authorized only to “complete each Title IV-D case.” See TEX. FAM. CODE ANN.
§ 201.101(a). Conservatorship does not fall within the enumerated categories of a Title IV-D
case, and was not included in Presiding Judge Murphy’s order of referral. See TEX. FAM. CODE
ANN. § 101.034; 201.104.
Conclusion
At all times, this case has been subject to the 145th District Court’s jurisdiction. It has
never been subject to the jurisdiction of the county court at law. It was not error to refer this case
to Associate Judge Perkins upon the Attorney General’s initiation of the Title IV-D case.
However, the family code does not list conservatorship as a matter to be resolved in a Title IV-D
case, and conservatorship was not included in the order of referral. Therefore, Judge Perkins did
not have authority to modify conservatorship in this case. See TEX. FAM. CODE ANN. §§
101.034, 201.104.5 Accordingly, we sustain C.H.’s first issue in part and overrule it in part.
ACCESS TO THE COURTS
In his third issue, C.H. contends the associate judge erred because he did not allow him to
participate in the final hearing.6 The Attorney General agrees there is no record evidence that the
trial court considered C.H.’s request for participation at the November 25, 2014 hearing.
Standard of Review and Applicable Law
It is well established that litigants cannot be denied access to the courts simply because
they are inmates. In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003). An inmate does not have an
automatic right to personally appear in court, but he should be allowed to proceed by affidavit,
deposition, telephone, or other means. See In re R.C.R., 230 S.W.3d 423, 426 (Tex. App.—Fort
5
Section 201.104(a) provides that “[o]n the motion of a party or the associate judge, an associate judge
may refer a complex case back to the judge for final disposition after the associate judge has recommended
temporary support.” TEX. FAM. CODE ANN. § 201.104(a) (West 2014).
6
C.H. also contends the trial court abused its discretion in denying his requests for a bench warrant and a
continuance. Resolution of these issues is not necessary to the disposition of the case. Therefore, we do not address
them. See TEX. R. APP. 47.1.
6
Worth 2007, no pet.). This is because access to the courts entails the opportunity to present
evidence or contradict the evidence of the opposing party. See id.
We review a court’s denial of an inmate’s request to participate by alternate means for an
abuse of discretion. See In re Z.L.T., 124 S.W.3d at 165.
Discussion
It is undisputed that C.H. was incarcerated when the Attorney General instituted the Title
IV-D case. In its pleadings, the Attorney General sought to modify support and conservatorship
orders.
C.H. filed a pro se original answer, a request for an attorney, and a motion for issuance of
bench warrant. C.H. requested the court to issue a bench warrant or grant a continuance to allow
him to participate in the proceedings. Alternatively, he asked to participate “by means of
telephone or video conference, or other means of participation from the prison unit.”
On November 25, 2014, the associate judge signed an order on the Attorney General’s
Notice of Changed Status in which the court explicitly denied C.H.’s request for a bench warrant
and implicitly denied his request for participation by alternative means. In a section denoted
“Possession and Access,” a handwritten notation provides as follows:
The Court finds that [C.H.] is currently incarcerated. The Court orders no
contact between [C.H.] and the children at this time.
It is also ORDERED that the maternal grandparents shall have possession
of the children at all times and places as [J.S.] shall agree.
An audio recording of the hearing was transcribed and included in the appellate record.
The transcript reflects that C.H. was not present during the hearing. The clerk’s record shows
that C.H. filed an affidavit with each of his two answers. But the transcript of the hearing makes
no reference to C.H.’s affidavit. Moreover, the docket sheet contains the following entry for
November 25, 2014: “Resp. [C.H.] sued; maternal grandparents & mother present; hearing
s[i]gned Default Ord[er] on change of status; motion for bench warrant denied.”
Conclusion
The record contains no evidence that the associate judge considered C.H.’s request to
participate in the hearing by alternate means. See, e.g., Urquidez v. Urquidez, No. 08-02-00444-
CV, 2004 WL 1933339, at *5 (Tex. App.—El Paso 2004, no pet.). Therefore, we conclude the
7
associate judge abused his discretion in denying C.H.’s request for participation in the hearing by
alternate means. See In re Z.L.T., 124 S.W.3d at 165. Accordingly, we sustain Appellant’s third
issue.
DISPOSITION
Having sustained C.H.’s first issue in part and having sustained his third issue, we
reverse the judgment and remand the case for further proceedings consistent with this opinion.
See TEX. R. APP. P .43.2(d).
BRIAN HOYLE
Justice
Opinion delivered October 30, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(PUBLISH)
8