In re Office of Attorney General of Texas, No. 14-08-00665-CV (Tex. App. 8/19/2008)

• Decision Date: 19 August 2008
• Docket Number: No. 14-08-00665-CV.,14-08-00665-CV.
• Parties: IN RE OFFICE OF THE ATTORNEY GENERAL OF TEXAS, Relator.
• Court: Texas Court of Appeals

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IN RE OFFICE OF THE ATTORNEY GENERAL OF TEXAS, Relator.

No. 14-08-00665-CV.

Court of Appeals of Texas, Fourteenth District, Houston.

Memorandum Opinion filed August 19, 2008.

Original Proceeding Writ of Mandamus.

Petition for Writ of Mandamus Denied, and Motion for Stay Denied as Moot.

Panel consists of Justices YATES, GUZMAN, and BROWN.

MEMORANDUM OPINION

JEFF BROWN, Justice.

Relator, the Office of the Attorney General of Texas ("OAG"), obtained a child-support default judgment against the real party in interest, Edward Bailey, Jr., and placed a lien on Bailey's bank account. On July 15, 2008, the trial court¹ set aside the default judgment and extinguished the lien. In response, the OAG filed this mandamus proceeding, asking that we order the trial court to vacate the portion of its July 15 order that extinguished the child-support lien. We deny the petition, and further deny as moot the OAG's accompanying motion for stay of the July 15 order.

BACKGROUND

In January 2007, the OAG filed an original petition for current and retroactive support of Bailey's minor daughter F.R.B. On October 5, 2007, the trial court entered a default judgment ordering Bailey to pay both monthly and retroactive support. Armed with the default judgment, the OAG issued a notice of lien to Bailey's bank, seeking to levy more than $20,000 in retroactive support.

Bailey, upon discovering the lien, filed an original bill-of-review petition in which he alleged that the OAG had not properly served him with process. On July 15, 2008, the trial court ruled that Bailey was served improperly, and ordered that

the judgment of this Court styled "Default Order in Suit Affecting Parent-Child Relationship," under Cause No. 2007-04278 dated October 5, 2007 is hereby set aside for all purposes and the subject cause is reinstated on the trial docket for further proceedings. It is further ORDERED that the Notice of Lien to Financial Institution issued by the Office of the Attorney General against [Bailey's bank] account ... shall be and is hereby extinguished and the Office of Attorney General [sic]shall cause said lien to be released immediately.²

The OAG promptly filed this mandamus proceeding to challenge the trial court's authority to extinguish the lien.³ Specifically, the OAG contends that the trial court (1) granted more relief than Bailey requested, (2) lacked the statutory authority to extinguish the lien, and (3) lacked the jurisdiction to order the OAG to release the lien.

STANDARD OF REVIEW

Mandamus relief will lie if the relator demonstrates a clear abuse of discretion for which there is no adequate appellate remedy. In re AutoNation, Inc., 228 S.W.3d 663, 667 (Tex. 2007) (orig. proceeding). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to constitute a clear and prejudicial error of law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). That is, a clear abuse of discretion occurs when a trial court issues a decision that lacks any basis or reference to guiding legal principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). With respect to the resolution of factual issues or matters committed to the trial court's discretion, we may not substitute our judgment for that of the trial court. Walker, 827 S.W.2d at 839. However, because a trial court has no discretion in determining what the law is or applying the law to the facts, a clear failure by the trial court to analyze or apply the law correctly constitutes an abuse of discretion. Id. at 840.

MORE RELIEF THAN REQUESTED

The OAG's first issue argues that the trial court abused its discretion by granting more relief than was requested in Bailey's bill-of-review petition. That is, relator contends that Bailey's petition requested only that the OAG be prevented from "proceeding forward with a levy" on the bank proceeds, but not that the lien be extinguished. Accordingly, the OAG asserts that the trial court exceeded its jurisdiction by granting unrequested relief. See Moreno v. Moore, 897 S.W.2d 439, 442 (Tex. App.-Corpus Christi 1995, no writ); Fitzgerald v. Rogers, 818 S.W.2d 892, 895-96 (Tex. App.-Tyler 1991, orig. proceeding) (granting mandamus relief from a discovery order that, inter alia, exceeded the requested relief).

We disagree with the OAG's limited reading of Bailey's petition. In addition to asking that the trial court issue a restraining order preventing the OAG from levying his account proceeds, Bailey also requested that the default order which underlies the OAG's lien "be set aside." By its very nature, a bill of review is a proceeding to "set aside" a judgment. See Tex. R. Civ. P. 329b(f); Garza v. Att'y Gen., 166 S.W.3d 799, 810 (Tex. App.-Corpus Christi 2005, no pet.) ("Final judgment in a bill of review proceeding should either deny any relief to the petitioner or grant the bill of review and set aside the former judgment."). Thus, an order setting aside a judgment likewise sets aside the relief awarded by that judgment. See, e.g., A.T. Lowry Toyota, Inc. v. Peters, 727 S.W.2d 307, 308 (Tex. App.-Houston [1st Dist.] 1987, no writ) (concerning bill-of-review petition that sought to set aside default judgment awarding monetary damages); Cook v. Cameron, 703 S.W.2d 690, 695 (Tex. App.-Corpus Christi 1985) (expressly noting that bill of review could be used to set aside divorce award), rev'd on other grounds, 733 S.W.2d 137 (Tex. 1987); Lee v. Thomas, 534 S.W.2d 422, 423 (Tex. Civ. App.-Waco 1976, writ ref'd n.r.e.) (affirming order granting bill of review that set aside previous default judgment and damages awarded under judgment).⁴

Therefore, the trial court's order setting aside the judgment and extinguishing the lien does not exceed the scope of the relief requested by Bailey. We overrule relator's first issue.⁵

AUTHORITY TO EXTINGUISH LIEN

The OAG contends in its second issue that the Family Code does not authorize the trial court to extinguish a support lien. Instead, the OAG points out that section 157.323 permits a party Ato dispute the amount of arrearages stated in the lien." Tex. Fam. Code Ann. § 157.323(a) (Vernon 2002). Because section 157.323 does not expressly provide for extinguishment of a lien, the OAG argues that the trial court abused its discretion by acting outside its statutory authority.

This argument is misplaced. The trial court's authority to release the lien derives not from the Family Code but from the authority to set aside a judgment under Rule 329b(f). Because the default judgment was improperly granted, the trial court correctly set aside both the judgment and the relief awarded pursuant to that judgment, including the support lien.

A claim for child support may not be reduced to judgment without proper notice to the one who is obligated to pay it. United States v. Fleming, 565 S.W.2d 87, 90 (Tex. Civ. App.-El Paso 1978, no writ). Therefore, the OAG's lawsuit to establish paternity and order child support remains subject to the requirements of "strict compliance" with the rules concerning proper citation and return of service. See In re Z.J.W., 185 S.W.3d 906, 906 (Tex. App.-Tyler 2006, no pet.). A child-support default judgment that is procedurally defective because of improper service, then, is void and must be reversed. See In re Hathcox, 981 S.W.2d 422, 426 (Tex. App.-Texarkana 1998, no pet.). This is because the law presumes that a trial court will hear a case, including one involving child support, only after proper notice has been given to the parties. See Welborn-Hosler v. Hosler, 870 S.W.2d 323, 328 (Tex. App.-Houston [14th Dist.] 1994, no writ).

Having found that Bailey was not afforded proper notice, the trial court acted within its broad discretion to grant a new trial. See Turner v. Ward, 910 S.W.2d 500, 504 (Tex. App.-El Paso 1994, no writ) (citing Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex. 1985) (orig. proceeding)). The trial court's authority also extends to the granting of a bill of review that effectively sets aside a default judgment for child support. See, e.g., Postell v. Tex. Dep't of Pub. Welfare, 549 S.W.2d 425, 426, 428 (Tex. Civ. App.-Fort Worth 1977, writ ref'd n.r.e.) (overturning child-support default judgment through motion deemed to be bill of review); see also generally Garza, 166 S.W.3d at 806, 817(permitting father to challenge default judgment for child support, but ultimately concluding that bill-of-review requirements were not satisfied).

In granting Bailey's petition for bill of review, the trial court acted within its authority pursuant to Rule 329b(f). Therefore, we overrule relator's second issue.

TRIAL COURT'S JURISDICTION OVER THE OAG

The July 15 order granting a new trial, which expressly extinguished the support lien, instructed the OAG to release the lien. The OAG contends that the order amounts to a "writ of mandamus" that was outside the trial court's jurisdiction to order. See Tex. Gov't Code Ann. § 22.002(c) (Vernon 2004) (providing that only Texas Supreme Court may issue writs of mandamus against executive officers). However, not every order issued by a trial court is a "writ of mandamus," because the trial court possesses both inherent authority and separate mandamus jurisdiction. See generally Tex. Const. art. V, § 8 (describing district court's writ power separately from its "original jurisdiction of all actions, proceedings, and remedies"). We therefore decline the invitation to construe the trial court's July 15 order as a "writ of mandamus."

A mandamus action filed in the trial court is an "original" proceeding. Anderson v. City of Seven Points, 806 S.W.2d 791, 792 n.1 (Tex. 1991); see also generally Garrett v. Williams, 250 S.W.3d 154, 158 (Tex. App.-Fort Worth 2008, no pet.) (analyzing whether "original [mandamus] proceedings filed in district courts" constitute "suits" for purposes of CPRC chapter 14 inmate litigation). A district court's...