In re Office of Attorney General of Texas

• Decision Date: 22 May 2008
• Docket Number: No. 01-08-00114-CV.,01-08-00114-CV.
• Citation: 264 S.W.3d 800
• Parties: In re the OFFICE OF the ATTORNEY GENERAL OF TEXAS, Relator.
• Court: Texas Court of Appeals

264 S.W.3d 800

In re the OFFICE OF the ATTORNEY GENERAL OF TEXAS, Relator.

No. 01-08-00114-CV.

Court of Appeals of Texas, Houston (1st Dist.).

May 22, 2008.

Michael D. Becker, Rande K. Herrell, Assistant Attorney General, Child Support/Appellate Litigation Section, Austin, TX, Leigh C. Ileson, Assistant Attorney General, Houston, TX, for Appellant.

Alice P. Thompson, Houston, TX, for Appellee.

Panel consists of Justices TAFT, JENNINGS, and BLAND.

OPINION

TIM TAFT, Justice.

Relator, the Office of the Attorney General of Texas ("the Attorney General"), has filed a petition for writ of mandamus challenging two orders of the trial judge:¹ (1) the November 19, 2007 order affirming an associate judge's October 17, 2007 ruling, which had vacated a June 18, 2007 order confirming a non-agreed child-support review order ("CSRO"), and (2) the January 30, 2008 order granting the motion for new trial of the real party in interest, Sean Adrian Preston, and setting a new trial. We determine whether the challenged orders are void for having been entered outside the trial court's plenary power. Answering in the affirmative, we grant the petition and conditionally issue the writ.

Background

On July 17, 2000, the trial court signed an agreed order that, among doing other things, established the parent-child relationship between Preston and the two children who were the subject of a suit affecting the parent-child relationship ("SAPCR") and ordered Preston to pay $344 per month in child support to Rose Sanchez, the children's mother. Some time in early 2007, the Attorney General sought to modify Preston's child-support obligation pursuant to Texas Family Code chapter 233, which provides an expedited administrative procedure for issuing CSROs in certain circumstances. See TEX. FAM.CODE ANN. §§ 233.001-.029 (Vernon 2002). The Attorney General notified the parties that a negotiation conference in the administrative proceeding would be held on February 28, 2007. See id. §§ 233.009(a)-(c), (e) (Vernon 2002) (allowing agency to serve notice on all parties of proposed CSRO and of negotiation conference to discuss said notice and to schedule and to conduct conference), 233.0095(a)-(c) (Vernon 2002) (same, in cases in which paternity has been acknowledged), 233.010(a) (Vernon 2002) (requiring service of notice of negotiation conference). The record supports the trial judge's finding that, although the Attorney General served notice of the negotiation conference on Preston, Preston did not receive that notice.

On February 28, 2007, the negotiation conference was held, but Preston did not attend. At that conference, pursuant to Texas Family Code chapter 233, the Attorney General adopted a non-agreed CSRO that increased Preston's child-support obligation to $640 per month. See id. §§ 233.010(b) (allowing Attorney General to "proceed with the review and file a child support review order according to the information available" to it when party fails to attend negotiation conference), 233.013 (Vernon 2002) (providing guidelines for determining amount of child support), 233.015(a) (Vernon 2002) (allowing for entry of final decision in form of non-agreed CSRO). On March 17, 2007, as required by chapter 233, the Attorney General filed a petition to confirm the non-agreed CSRO with the trial court that had heard the earlier SAPCR. See id. § 233.020 (Vernon 2002) (providing for filing of petition to confirm non-agreed CSRO). Sanchez waived service of process. The record undisputedly supports the trial court's finding that Preston was served with the petition to confirm the non-agreed CSRO on April 11, 2007.

Despite having been served with the petition for confirmation of the non-agreed CSRO, Preston did not answer or file an objection to the petition or request a hearing. See id. §§ 233.022(a) (Vernon 2002) (requiring court to consider any responsive pleading that is intended as objection to confirmation of non-agreed CSRO, including general denial, as request for hearing), 233.023 (Vernon 2002) (providing that request for hearing on petition for confirmation of non-agreed CSRO be filed no later than 20 days after order is delivered to party). Accordingly, on June 18, 2007, an associate judge signed an order confirming the non-agreed CSRO. See id. § 233.0271(a) (Vernon 2002) (requiring that court confirm and sign non-agreed CSRO "not later than the 30th day after the date the petition for confirmation was delivered to the last party entitled to service"). No one appealed the June 18 confirmation order to the referring court.

On August 20, 2007, Preston moved the associate judge to vacate his June 18 confirmation order. Preston's motion to vacate was premised on Texas Family Code section 233.0271(a), which requires that the trial court sign an order confirming a non-agreed CSRO "not later than the 30th day after the date the petition for confirmation was delivered to the last party entitled to service." Id. § 233.0271(a). In that motion, Preston urged that, because the associate judge had failed to sign the confirmation order within 30 days of its delivery to Preston—that is, before May 11, 2007, 30 days after Preston had been served with the confirmation petition—the associate judge's June 18 confirmation order was void for having been rendered after the court had "lost its special authority to confirm the [non-agreed CSRO]." That is, Preston viewed the 30-day requirement for signing a confirmation order under section 233.0271(a) to be jurisdictional. Preston requested that the associate judge vacate his June 18 confirmation order for its being void.

The associate judge apparently agreed with Preston because, on October 17, 2007, he entered an order vacating his June 18 confirmation order. The Attorney General appealed the October 17 ruling to the referring court, contesting the associate judge's implicit conclusions that the trial court (1) had jurisdiction to entertain and to grant a motion to vacate that had been filed more than 30 days after the June 18 confirmation order had been signed and (2) lacked subject-matter jurisdiction to sign the non-agreed CSRO more than 30 days after Preston had been served. See TEX. FAM.CODE ANN. §§ 201.015, 201.1042 (Vernon Supp.2007) (allowing and providing procedures for de novo hearing before referring court to appeal associate judge's rulings).

The trial judge of the referring court held a de novo hearing on the Attorney General's appeal on November 9, 2007, during which the judge ruled verbally to affirm the associate judge's ruling on the basis that the associate judge had not signed the confirmation order within 30 days of service on Preston. Ten days later, the trial judge signed an order reflecting this ruling:

After hearing evidence presented and argument of counsel, [t]he Court ... finds that the ruling by the Associate Judge ... should be affirmed and that [the non-agreed CSRO] of June 18, 2007 should be vacated. The Court bases its ruling upon the finding that the plenary power of the ... Court expired before the Court was presented with the [non-agreed CSRO] for confirmation over 65 days following service of the last party entitled to service in this proceeding. The Court finds that Respondent, Sean Preston, was served with the Petition for Confirmation of [the non-agreed CSRO] on April 11, 2007 but that the ... Court did not sign [the non-agreed CSRO] until June 18, 2007. The Court further found that it was incumbent upon the moving party, the Office of the Attorney General, to check service and to ensure that the return of service be timely filed with the papers in this cause so that the Order of Confirmation can be timely signed by the ... Court as required by [Texas Family Code section] 233.0271.

On December 18, 2007, the Attorney General moved to vacate the trial judge's November 19, 2007 order affirming the associate judge's October 17 ruling. On January 17, 2008, the trial judge of the referring court entered findings of fact and conclusions of law concerning its November 19 order of affirmance. Therein, the trial judge found (1) that the Attorney General sent notice of the instigation of the child-support review proceeding and of the negotiation conference to Preston, but he did not receive the notice; (2) that Preston's wages were less than had been determined at the negotiation conference for which he did not receive notice; (3) that Preston was served on April 11, 2007 with the Attorney General's petition for confirmation of the non-agreed CSRO; (4) that the return of citation on Preston was filed on May 3, 2007, but was not entered into the Judicial Information Management System ("J.I.M.S.") of Harris County until May 15, 2007;² and (5) that the associate judge signed the order confirming the non-agreed CSRO on June 18, 2007. The trial judge concluded (1) that it was the responsibility of the Attorney General, as the moving party, to ensure that the return of service was timely filed with the papers of the cause so that the confirmation order could be signed within the time period required by Texas Family Code section 233.0271³ and (2) that the order confirming the non-agreed CSRO was not signed within 30 days of Preston's being served with the Attorney General's confirmation petition, so that the "jurisdiction and plenary power of the court had expired and therefore the [confirmation] order entered on June 18, 2007 is void and therefore should be vacated as it was presented for confirmation after the plenary power of the ... Court had expired."

The Attorney General's motion to vacate was heard on January 30, 2008, but the trial judge of the referring court never expressly ruled on it. However, on the same day on which she held the hearing, the trial judge signed an order granting Preston's motion for new trial. The Attorney General then sought mandamus relief in this Court. We stayed further proceedings in the trial court pending the outcome of this mandamus...