Petition for Writ of Mandamus Denied and Opinion filed October 6, 2016.

In The

Fourteenth Court of Appeals

NO. 14-16-00622-CV

IN RE THE OFFICE OF THE ATTORNEY GENERAL, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

311th District Court

Harris County, Texas

Trial Court Cause No. 2015-39181

MEMORANDUM OPINION

On June 6, 2016, the associate judge of the 311th District Court of Harris 

County, Texas issued an order in a suit to modify the parent–child relationship.

The Order implemented a mediated settlement agreement by the father and the 

mother and ordered relator, the Office of the Attorney General of Texas (OAG), to 

reimburse the father for child-support payments already remitted to the mother and 

to provide notice of a zero child- support arrearage judgment to three credit 

agencies.
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On August 9, 2016, the OAG filed a petition for writ of mandamus in this 

court. See Tex. Gov’t Code Ann. § 22.221 (West 2004); see also Tex. R. App. P. 

52. In the petition, the OAG asks this court to compel the Honorable Alicia 

Franklin York, presiding judge of the 311th District Court of Harris County, to 

vacate the part of the Order pertaining to the OAG.

 In its first issue, the OAG argues that the trial court lacked jurisdiction over 

it because it was not served with citation and the motion to modify that resulted in 

the Order, and that the part of the Order pertaining to the OAG is therefore void. 

In its second issue, the OAG argues that the Order granted injunctive relief 

against the OAG, and that the trial court lacked subject matter jurisdiction to enjoin 

the OAG because the OAG is an executive officer of the State, and under section 

22.002(c) of the Government Code, only the Supreme Court of Texas may issue an 

injunction against an executive officer of the State. For this reason, the OAG 

asserts that the injunction against it is void due to lack of subject matter 

jurisdiction.

The OAG did not appear in the trial court and did not request the trial court 

to vacate the part of the Order pertaining to the OAG for the reasons stated in its 

petition for writ of mandamus.

“Mandamus relief generally requires a predicate request for an action and a 

refusal of that request.” In re Le, 335 S.W.3d 808, 814–15 (Tex. App.—Houston 

[14th Dist.] 2011, orig. proceeding) (citing Axelson, Inc. v. McIlhany, 798 S.W.2d 

550, 556 (Tex. 1990). “But, the requirement that there be a predicate request and 
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adverse ruling is excused when such a request would have been futile and the trial 

court’s refusal little more than a formality.” Id. at 815. The OAG has not shown 

that requesting the trial court to vacate the part of the Order pertaining to the OAG

would be futile.

Even after the expiration of plenary power over a judgment, a trial court still 

may sign an order declaring the judgment to be void because the trial court lacked 

subject-matter jurisdiction to render the judgment. See In re Martinez, 478 S.W.3d 

123, 126 (Tex. App.—Houston [14th Dist.] 2015, orig. proceeding); In re S.A.H., 

465 S.W.3d 662, 665–667 (Tex. App.—Houston [14th Dist.] 2014, no pet.) 

(affirming order in which the trial court declared that its prior final judgment was 

void for lack of subject-matter jurisdiction based on a collateral attack filed in 

same case more than five years after rendition of judgment). The Supreme Court of 

Texas also has indicated that a collateral attack is available if there was “a 

complete failure or lack of service” that violates due process. See PNS Stores, Inc. 

v. Rivera, 379 S.W.3d 267, 273–74 (Tex. 2012); In re E.R., 385 S.W.3d 552, 566 

(Tex. 2012).

Because the OAG has not first requested the relief it seeks in its petition for 

writ of mandamus from the trial court, we deny the petition without prejudice to 

refiling after the issues stated in the petition have been presented to and ruled on by

the trial court.

 PER CURIAM

Panel consists of Chief Justice Frost and Justices Boyce and Christopher.