### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00239- CV

In re Charles Nor ris

ORI GINAL P ROCEEDI NG F ROM WI LLIAM SO N COUNTY

C O N C U R R

I N G O P I N I O N

I join J ustice Pemberton’s opinion. I write separ ately to addre ss an issue that I believe

war rants leg islative attention.

I n a suit aff

ecting the pare nt-child rela tionshi p , s e c ti o n 1 0 9

. 0 0 1 (a) of the Family Code
g rants the tria l court authority to make “a

ny order nece ssary

to prese rve a

nd protec t the safe ty

and welfa re of the child” during the pendenc y of an appea l, but the order must be made “[n] ot later than the 30th day

afte r the da te an a

ppeal is per fec ted.” Under Rule 25.1 of the c urre nt Texas Rul es of Appellate Procedur e (TRAP), “[a]n appea l is perf ecte d when a written notice of appea l is filed with the trial cour

t clerk.” I n the pre sent ca se, the trial court’s orde r aw arding appellate attorney ’s fe es

was made more than 30 day s afte r the notice of appea l was filed. Norris arg ues, howeve r, that the n o t i ce of appeal was “pre maturely filed.” TRAP Rule 27.1 provides that a “premature ly filed notice of appea l is

. . . deeme d filed on the day of, but afte r, the event that beg ins the period for perf ecting the appea l.” Under TRAP Rule 26.1, the signing of t h e j u d gment is the event that beg ins the period for perf

ecting the appea l. Thus, as J ustice Pemberton’s opinion explains, a notice of appea l is “pr em ature ” under the curr ent rules only if it is filed befor e the judgme nt is signe d.
Her e, the notice of appea l was fi l ed afte r the judgme nt was signe d. There fore , Rule 27.1 has noapplication. Acc ording ly , under the curr ent proce dural rules, there is no way to avoid the conclusion

that the trial court in the prese nt case lacke d authority to make the order for appellate attorney ’s fee s.

But I believe that is not what the 69th L eg is l at u re envis ioned in 1985 when it

enac ted t he langua g e that is now containe d i n s ec t i o n 1 09.001(a) of t he Family Code. See Act of May 2, 1985, 69th L eg ., R.S., ch. 615, § 3, 1985 Tex. Gen. L aws 559, 560. The Rules of Appellate Procedur e wer e not promulg ated as a separ ate set of rules until 1986, the y ear after the lang uag e now in section 109.001(a) was enac ted. When the L eg islature chose the section 109.001(a) lang uag e in 1985, the opera tive proce dural rule for deter mining when an appea l was “per fec ted” was Rule 306c of the Texas Rules of Civil Procedur e. At that time, Rul e 3 0 6 c p rovi ded that appea l bonds, notices of appea l, and other appea l-perf ecting instruments “shall be deeme d to have be en filed on the date of but subsequent to the date of signing of the judgme nt or the date of t h e overruling of

m otion for new trial , if such a motion is filed.” (Emphasis added.) The Texas Supreme Court had 1 previously construed Rule 306c to apply to any timely notice of appea l, reg ardle ss of whether it preda ted the judg ment:

The contention that the notice of appea l g iven in the judgme nt cannot be used when a motion for new trial is filed rea lly amounts to an asser tion that the notice was prema turely

g iven. . . . The a

nswer to this is found in Rule 306c. . . . A motion for new trial was filed in this case . Under rule 306c, the g iving of the notice in the judgme nt was not prema ture; and that rule say s that the notice shall be dee med to have be en g iven af ter the ove rruling of a motion for ne w trial.

When the Rules of Appellate P rocedure wer e promulg ated in 1986, the quoted portion 1 of Rule 306c was moved essentially verba tim to TRAP Rule 41(c)

. I n 1990 Rule 41(c) was amende d to repla ce “date of signing ” with “time o f s i gn i n g” and to repla ce “date of the overr uling” with “time of the overr

uling,” but the rule was otherwise left unchang ed. I t was not until 1997, with the promulg ation of the “new ” Rules of Appellate Procedur e, that the rule addre ssing prema turely filed documents wa s moved to TRAP Rul e 27.1(a ) and the curr ent lang uag e wa s adopted. 2Puck

ett v. Frizzell , 402 S.W .2d 148, 153 (Tex. 1966); see also Bolton’s Estate v. Coats , 608 S.W .2d 722, 726 (Tex. Civ. App.—Ty ler 1980, writ ref ’d n.r.e.) (“Since a motion for reinstateme nt is in leg al eff ect the e quivalent of a

motion for new tria l, unde r rule 306c, an appea l bond or its e quivalent is deeme d to have be en filed a fter ove rruling of the motion and is not to be considere d prema ture.” ).

Thus, at the time the section 109.001(a) lang uag e was enac ted in 1985, the proce dural backdr op was that for case s in which a motion for n ew t ri al was filed, a notice of appea l or
appea l bond was not deeme d to have been “filed” until the day of, but afte r, the motion for new trial

was overr uled. Acc ordingl y , t h e ap p eal was not “per fec ted” until that date. See City of Corpus Christ i v. Gregg , 289 S.W .2d 746, 749 (Tex. 1956) (holding that wher e motion for new trial is filed, Rule 306c mandates that “the appea l is perf ecte d at the time of the order overr uling the motion for

new trial, instead of when [t he notice of appea l was] first g iven at the rendition of the judgme nt.”).
T h e only logic al conclusion is that when the 69th L eg islature enac ted the section 109

. 0 0 1 (a ) lang uag e t o au t h o rize trial courts to rende r order s “nec essar y to prese rve and protec t the safe ty and welfa re o f the child” “within 30 day s afte r the date an appea l is perf ecte d,” it intended that a trial court’s power to rende r such order s should extend for 30 day s beyond the date a motion for new tria l was over

ruled, if one was filed. This conclusion is consistent with the orig inal purpose of the p redece ssor to section 109.001(a)

. Once an appea l is perf ecte d, a trial court loses jurisdiction to take any action in

a case except what is expressly authorized by rule or s t at u t e. Amme x W arehouse Co. v. Archer , 381 S.W .2d 478, 482 (Tex. 1964). Thus, without a specif ic provision like section 109.001(a ), the filing of a notice of appea l (or, in 1985, an appea l bond) would immediately cut off the trial court’s authority to make various ty pes of order s, such as providing for the pay ment of appellate attorney ’s

3fee s, that the court might conclude are nece ssary for the safe ty and welfa re o f a child during the

pendenc y of the appea l. The L eg islature in 1985 expressly rec og nized this problem and enac ted the lang uag e now in sec tion 109.001(a) in an e ffor t to solve it:
[P ]resent law withdraws power to enfor ce order s and to take testimony from the trial court when an appe al has be en filed. This lea ds to risk ex posure to the pa rties and to their proper

ty in the event the appellate court fails to act t o p re s er v e t he status quo. Appellate courts are ill-equipped to take testimony and to issue detailed order s prese rving or protec ting pe rson and pr operty

. Senate Jurisprudence Comm., Bill Analy sis, Tex . S.B. 638, 69th L eg ., R.S. (1985).
The Family Code

. . . does not deal with temporar y order s afte r a decr ee is enter ed and an a ppeal is pending . Under

prese nt la

w, tempora

ry order s during the pending of an appeal in a divorce or child custody suit can only be obtained throug h a proce dure involving both the appea ls court and the district c ourt.
House Judiciary

Comm., Bill Analy sis, Tex . S.B. 638, 69th L eg ., R.S. (1985).
As J us t i ce Pemberton’s opinion corr ectly notes, Texas courts presume that the
L eg islature was awa

re o f t h e backg round law and acte d with ref ere nce to it. Wit h respe ct to the intended operation of s ec t i o n 109.001(a) , in 1985 the backg round l aw included Rule 306c and its provision that an appe al-pe rfe cting instrument would not be deeme d to have be en filed—a nd thus
an appe al not “per fec ted”—until the motion for new tr ial, if filed, wa s overr uled. Under the curr ent proce dure, howeve r, surely not anticipated in 1985, an appea l can be “per fec ted” long befor e a m o t i o n for new trial is overr uled or, indeed, befor e such a motion is

even fil ed

. See Tex. R. Civ. P. 329b(a) (re quiring motion for new trial to be filed within 30 day s afte r judgme nt is signe d). Having the 30-day deadline in section 109.001(a) run fr o m the date the notice of appea l is actua lly submitt ed and filed, instead of the date a motion fo r n ew t ri al is
4overr

uled, cre ates at least two p ractical dilemmas. First, when a motion for new trial is filed, the parties—a

nd even the attorney s—tend not to think of the a ppeal a s “pending ” until the motion for

new trial is overr

uled, even if a notice of appea l has alre ady been filed. As a result, the parties and attorney s may not fee l any urg ency in obtaining temporar y ord er s , s i n ce the judgme nt may be modified or set a side in response to the motion for ne w trial. This trap may lull the party desiring tempora ry relief during an appea l into overlooking the need to obtain such relief so ear ly in the
proce ss and could result i n that party ’s l osing the ability to obtain relief altog ether

. That scenario seems to have play ed out in the pre sent ca se.

Second, when a noti ce of appea l is filed early in the process, the cur rent proc edure requir es the party desiring temporar y relief under section 109.001(a) to seek such relief while the motion for new trial, if one is filed, is likely still pending

. This forc es the party seeking temporar y relief to file a motion that eff ectively say s to the trial court, “I k n o w y o u haven’ t ruled on my motion for new trial y et, and I still want y ou to g rant it, but in case y ou do not g rant it or modify the judgme nt in some way , I need y ou to hold a hear ing, take evidenc e, make a ruling , sign an order , and put this temporar

y relief in place now, rec og nizi ng that such temporar y relief may become moot

or inappropria

te if y ou do g rant my motion for new trial or modify the judgme nt in some way .” Such

a proce ss is wastef

ul, to say the least. Cf. Park v. Essa Tex. Corp. , 311 S.W .2d 228, 230 (Tex. 1958) (“I f a litiga n t has a rig ht to file a motion for new trial and does so, it would cause considera ble confusion if his time for appea l beg an upon the rendition of judgme nt rathe r than upon the overr uling of his motion. He would, at the same time, be urg ing his motion in the trial court and appea ling. He would have to r equest the prepa ration of the statement of fac ts a nd the transcr ipt with its a ttendant
expense without knowing whether they would be nece ssary or not. He would have to attend to and

5bear the expense of court costs and the appea l bond without knowing whether his motion would be

g rante d or not .”). I t would be f ar b et t er to allow t he trial court to rule on the m otion for new t rial first, and then, i f n ece ssary , later take up the issue of whether to g rant an order to “pre serve and protec t the safe ty and welfa re of the child” during the pendenc y of the appea l. And that appea rs to be exactly what the 69th L eg islature had in mind in 1985 when it enac ted the provision that is now section 109.001(a)

. I t is only throug h the Texas Supreme Co u rt ’s subsequent rule chang e, which simply altere d the date when an appea l is deeme d “per fec ted,” that the L eg islature’s orig inal intent has been inadver

tently frustra ted. I would encour ag e the L egi s lature to adjust the lang uag e of section 109.001(a ) to reinstate what I believe was the clea r intent of the 69th L eg islature in 1985. 2

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J . Woodfin J ones, Chief Just ice
Be fore Chief J ustice Jones, J ustices Pemberton a nd Rose Filed: June 7, 2012

The same 1985 bill that amende d what is now section 109.001(a) also amende d what is 2 now section 6.709(a) of the Family Code to add virtually the i d en t i cal lang uag e, except that the amendment authoriz ed t h e t ri al court to make any order nece ssary for the “pre serva tion of the proper

t y and for the protec tion of the parties” during the pendenc y of the appea l. See Act of May 2 , 1985, 69th L eg ., R.S., ch. 615, § 1, 1985 Tex. Gen. L aws 559, 560. The subsequent rule chang e by the supreme court has cre ated the same proce du ra l d i l emm a as to that statute and also war rants leg islative attention. 6