Fourth Court of Appeals

San Antonio, Texas

OPINION

No. 04-11-00893-CV

Arthur and Enedelia MARTINEZ,

Appellants

v.

Gloria ESTRADA,

Appellee

From the 73rd Judicial District Court, Bexar County, Texas

Trial Court No. 2010-PA-00693

Honorable Solomon Casseb, III, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Catherine Stone, Chief Justice

Sandee Bryan Marion, Justice

Rebecca Simmons, Justice

Delivered and Filed: December 5, 2012

REVERSED AND RENDERED

In this appeal, Arthur and Enedelia Martinez (“the Martinezes”) challenge the trial 

court’s “Order Granting Grandparent Possession or Access Contemporaneous to Adoption” in 

favor of Gloria Estrada. The circumstances of this case are unfortunate because they pit the 

paternal grandmother against the maternal grandparents, and because the result dictated under 

the Texas Family Code is harsh. We reverse and render. 
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BACKGROUND

Estrada is the paternal grandmother of the children, and the Martinezes are the maternal

grandparents. The parental rights of the biological mother and father to the children were 

terminated prior to the adoption. Both the Martinezes and Estrada filed an original petition for 

adoption. When Estrada filed her original petition seeking adoption of the children, she also 

sought possession and access to the children in the alternative. The Martinezes filed a motion to 

dismiss Estrada’s petition. On the date of trial, the trial court heard the Martinezes’ motion to 

dismiss and held trial on the merits on the Martinezes’ original petition for adoption and on 

Estrada’s original petition for adoption or access. The trial court denied the Martinezes’ motion 

to dismiss and granted the Martinezes’ original petition for adoption, thereby denying Estrada’s 

request for adoption. The trial court also signed an “Order Granting Grandparent Possession or 

Access Contemporaneous to Adoption,” allowing Estrada possession and access to the children. 

It is from this Order the Martinezes appeal.

STANDING 

In two issues on appeal, the Martinezes argue the trial court (1) did not have subjectmatter jurisdiction to hear the matter because Estrada lacked standing to file an adoption suit, and 

(2) did not have subject-matter jurisdiction to hear the request for grandparent access because 

Estrada did not have standing to request the relief.1

Standing is a component of subject-matter jurisdiction and must be established in order to 

maintain a lawsuit under Texas law. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 

443–44 (Tex. 1993). Whether a court has subject-matter jurisdiction is an issue of law, which is 

reviewed de novo. Tex. Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 646 (Tex. 

 1 In a third issue on appeal the Martinezes argue the trial court violated the public policy of the State of Texas by 

granting grandparent access to Estrada. We decline to address the Martinezes’ third issue as it is not dispositive to 

this appeal. TEX. R. APP. P. 47.1.
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2004). An absence of standing deprives the trial court of subject-matter jurisdiction and renders 

any action of the trial court void. In re H.G., 267 S.W.3d 120, 124 (Tex. App.—San Antonio 

2008, no pet.). Subject-matter jurisdiction is an issue that may be raised for the first time on 

appeal and it may not be waived by the parties. Tex. Ass’n of Bus., 852 S.W.2d at 445. 

The plaintiff has the initial burden of alleging facts that affirmatively demonstrate 

jurisdiction. Jasek v. Tex. Dep’t of Family and Protective Servs., 348 S.W.3d 523, 528 (Tex. 

App.—Austin 2011, no pet.). On review, we must also consider evidence the parties presented 

below that is relevant to jurisdiction. Id. The Texas Legislature has provided a comprehensive 

statutory framework for standing in suits involving the parent-child relationship. In re H.G., 267 

S.W.3d at 124. When standing is conferred by statute we use that statutory framework to 

determine whether a particular party has standing. Jasek, 348 S.W.3d at 528. The party seeking 

relief must allege and establish standing within the parameters of the language used in the 

statute. In re H.G., 267 S.W.3d at 124. 

Texas Family Code section 102.005 details the standing requirements to request 

adoption. See TEX. FAM. CODE ANN. § 102.005 (West 2008). Estrada argues she has standing to 

seek the adoption under both section 102.005(5), granting standing to request adoption to an 

adult who has had “substantial past contact with the children,” and section 102.006(c), allowing 

an original suit for adoption to be filed within 90 days after the parental rights are terminated. 

However, we do not reach the issue of whether Estrada had standing to adopt the children 

because the trial court did not award adoption to Estrada in its order. Instead, the court ordered 

access and possession. Therefore, the issue presented is whether Estrada met the standing 

requirements for grandparent access. See In re Derzapf, 219 S.W.3d 327, 332 (Tex. 2007) 

(concluding that because trial court granted relief under grandparent access provision, standing 
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had to be determined under that provision and not under general provisions for filing a Suit 

Affecting the Parent-Child Relationship).

Estrada argues the standing requirements under the grandparent access requirements do 

not apply because she is seeking access as an alternative to her request for adoption in the event 

adoption is not granted. We disagree. Family Code section 102.004(c) specifically states, 

“[p]ossession of or access to a child by a grandparent is governed by the standards established by 

Chapter 153.” TEX. FAM. CODE ANN. § 102.004(c); see TEX. FAM. CODE ANN. §§ 153.432–.434 

(governing grandparent access). Our review, therefore, must be guided by the requirements set 

forth in the grandparent access provisions of Chapter 153.

Grandparents must meet specific standing requirements to pursue a claim seeking access 

or possession. See TEX. FAM. CODE ANN. § 153.433. Family Code section 153.434 places 

additional standing limitations on grandparents: 

A biological or adoptive grandparent may not request possession of or access to a 

grandchild if: (1) each of the biological parents of the grandchild has: (A) died; 

(B) had the person’s parental rights terminated; or (C) executed an affidavit of 

waiver of interest in the child . . . ; and (2) the grandchild has been adopted . . . by 

a person other than the child’s stepparent. 

TEX. FAM. CODE ANN. § 153.434.

Here, both the biological mother and father to the children had their parental rights 

terminated and the Martinezes, persons other than a stepparent, had their petition for adoption 

granted at the outset of the hearing. The statute is clear: a biological grandparent may not 

request access to grandchildren if each of the biological parents of the grandchildren has had 

their parental rights terminated and the grandchildren have been adopted by a person other than 

the children’s stepparent. See TEX. FAM. CODE ANN. § 153.434. Accordingly, Estrada did not 

meet the standing requirements to pursue a claim under the grandparent access statute. Because 
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Estrada did not meet the standing requirements to seek grandparent access, the trial court did not 

have subject-matter jurisdiction to enter an order granting grandparent access to Estrada. See In 

re H.G., 267 S.W.3d at 124. 

CONCLUSION

We recognize courts must take statutes as they find them although the result may seem 

harsh or unfair. See Moran v. City of Houston, 58 S.W.3d 159, 162 (Tex. App.—Houston [14th 

Dist.] 2001, pet. denied) (same). Here, the Martinezes and Estrada both petitioned to adopt the 

children. Unfortunately, Family Code section 153.434 dictated a winner-take-all result. 

Although Estrada may have had standing to petition for adoption, she lost standing to request 

access the moment the Martinezes’ petition for adoption was granted. Therefore, we are 

constrained to conclude Estrada does not have standing to request access to her grandchildren, 

and we must reverse the trial court’s order and render judgment that her request for access to the 

children be dismissed for lack of jurisdiction.

Sandee Bryan Marion, Justice