1 Jo hn T. Boyd , Chi ef Just ice ( Ret.) , Sevent h Court of Appeals, sitti ng by assignmen t. T EX
. G OVT
. C OD E A NN
. §75.002(a)(1) (Ve rnon Sup p. 2002). NO. 07-02-0274-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL E JANUARY

17, 2003

______________________________ IN THE INTEREST O F L.J.S.

_________________________________ FROM THE 72 ND DISTRIC T COURT O F LUBBOCK COUNTY; NO. 2001-513,802; HON. BLA IR CHERRY, JR., PRESIDING

_______________________________ Before JOHNSON, C.J., QUINN, J. and BOYD, S.J. 1 Roy and Janis Simmons (the Simm ons) appeal from an order termina ting their parental rights to L.J.S. Via one issue, they assert th at the trial court was required to dismiss the second petit ion for terminati on because it fail ed to allege new facts that were not all eged i n the fi rst pe titio n for te rminat ion. We affirm. Background On November 10, 1999, th e T exas Department of Protect ive and Regulatory S ervices(TDPRS) r

emoved L.J.S., a child, from the Simmons’ home. Upon remov al , L.J.S. was placed in an emergency shelter and on November 12, 1999, the TDPRS filed its Original Petition for Protection ofChild, for Conservatorship and for T ermination in
cause number 92-539,677 i n the 72 nd District Courtof Lubbock County (the first suit) . By2

its suit, the TDPR S sought to terminate the par ent -child rel ationship betw een Simmons and L.J.S. The TDPRS was appointed temporary managing conservator of L.J.S. Pursuan tto the Texas Famil y Code, if the re was no final judgment, the dismissal date for the f irstsuit was November 13, 2000. See T EX
. F AM
. C ODE A NN . §263.401. However, the dismissal date was ex

tended to May

9, 2001, as permi tted by stat ute. Id

. at§263.401(b). O n May 3, 2001, a hearing on t he TDPRS’ termi nation petition commenced. However, it was continued due to the fact that one of the par ties’ attor ney

had an emergency requiring him to leave the t rial. On M ay 6, 2001, the TDPRS filed a motion for non-suit. T he trial court signed an order granting the non-suit without pr ejudice on May

7, 20 01. O n the same day, the trial court also signed an Order for Protection of a Child in an Emergency and Notice of Hearing in cause number 20 01-513,802 in the 7 2nd Distric t Court (thesecond suit) . The trial court appointed the TDPRS as tempor ary managi ng conservator of L.J.S. Follow ing
a full adversary hearing in the second suit, a family relative was appointed tem porary managing conservator of L.J.S. The dis missal date for the second sui t was extended, and
a termination hearing was se t for June 24, 2002. A pre-trial motion was filed request ing the trial court to dismis s the suit becaus e the second sui t failed to alle ge any new facts from the firs t suit. The motion was ov erruled and the hearing pr oceeded. Following t he hearing, the parent-chil d relationshi p between the S immons and L.J.S. w as terminated. Analysis Assumi ng argue ndo that the TDPRS may be free to non-sui t and reiniti ate proceedings, they cannot d o so in a manner t hat violates statute or p ublic polic y. The public policy here involved is encapsul ated in §263.401(a) of the Texas Famil y Code. T EX
.3

F AM
. C ODE A NN
. §263.401(a) (Vernon 200 2). That statute ex ists to facilitate permane nce an d stability

in the lives of children s ubjected to TDPR S involvement by limi ting the tim e within which the TDPRS can prosecute actions to te rminate parental rights o r h ave it designated con servator

. See In re T.M. , 33 S.W.3d 341, 346 (Tex. App.–Amar illo 2000,
no pet.). And, t h at time is 12 mont hs with, generally , no more than an ex tension of 180 days. T EX
. F AM
. C ODE A NN
. §263.401(a) & ( b); In re T.M. , 33 S.W.3d at 346. Now, to allow

the statutory

time period tobe exceeded thr ough legal maneuvering of the TDPRS or an y other par ty wou ld undoubtedly run afou l of the public policy underlyin g the provi sion. Indeed, thetime limit mus t be heeded despite the desires and machinations of the parties, In re T.M. , 33 S.W.3d at 346-47, and, we are not free to disregard or

avoid the l imitation. In re L.L. , 65 S.W.3d 194, 197 (Tex. App.–Amaril lo 2001,
no pet.). And, it is for this reason that the Simm ons believe the trial court erred in refusing to dismiss the second suit initiated by the TDPRS shor

tly after non- suiting th e first. Indeed,
one can only w

onder about the effect wr

ought upon the publ ic policy underlyi ng §263.401 if the TDPRS is free to non-suit on th e eve of the §263.401 deadline and then re-file a like suit immed iate ly thereafter . That surely is not an effort to bring stabil ity to the lives of children. Nor does it resolve the suitin a timely manner as contemplated by the legis lature. Nevertheless, we need not address w hether the ac ts of th e TDPRS const itute some machination to thwart legislative edict. This is so because authority cle arl y allow s it to reinitiatethe proceeding if new facts ar e alleged justifyin g relief on t he same grounds averred in the first a ction. In re T.M. , 33 S.W.3d at 347; In re Ruiz , 16 S.W.3d 921, 927 (Te x . App.–W aco 2000, no pet.). Here, the TDPRS purported to aver such new facts in its second suit, as evinced by the affid avit accompanying the petition. Additionally, those4

new facts purportedl y arose after the first sui t was filed (tho ugh som e involved a continuation of the conduct prec ipitating the first suit ) and alleg edly just ified termination of the parental ri ghts of the Simmon s. More i mportantly, neither of the Simmonstendered argument

or supporting authority in their appell ate brief address ing all

of these new facts and expla inin g why none of them were truly new or why none independently warranted the relief sough t by the TD PRS in the second suit. Nor did they discuss the evidence presented at the trial of the second actio n. Instead, the Si mmons discussed t he ba ckgr ound of this case, menti oned evidence presented to the as sociate judg e at the hearing to determine w hether the chil d should be temporarily remov ed, mention e d legal authority interpreti ng §263.401 and the need to dismiss when the per tinent time li mitation is exceeded, and t hen opined t hat dismissal was appropriate because th e second suit “involved the sa me child, and . . . the [TDPRS] soug ht the same reli ef.” Yet, w hether the
same parties are involved or relief sought is not determinati ve. Agai n, we and other courts have recogniz ed that a second suit can be initiated if new facts exist. And, if another suit to terminate is

filed, it israther cer

tain that the same parties and r elief wil l be invol ved. In short, 1) t he TDPRS purpor ted to alleg e new facts w arranting termination and 2) the Simmons did not establi sh on appeal that t he facts presented at the trial of

the second suit and upon whic h the judgment at bar was founded were no ne o ther than those underlyin g the first sui t. So, we canno t conclude that the TDPRS failed toalleg e and prove new fac ts as cont emp late d by In re T.M. and In re Ruiz and that the tri al cour t sho uld h ave dismissed the s econd suit. The j udgment of the tri al court is affirmed.
Brian Quinn Johnson, C.J., concurs. Justice2 John T. Boyd, Chi ef Justi ce (Ret. ), Seventh C ourt of Appeals, s itting by

assignment. NO. 07-02-0274-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL E JANUARY

17, 2003

______________________________ IN THE INTEREST O F L.J.S.

_________________________________ FROM THE 72 ND DISTRIC T COURT O F LUBBOCK COUNTY; NO. 2001-513,802; HONORABLE BLA IR CHERR Y, JR., J UDGE

_______________________________ Before JOHNSON, C.J., QUINN, J. and BOYD, S.J. 2
CONCURR ING OPINION
Atthe beginning of the terminat ion hearing in June, 2002, Roy Simmons moved to dismiss the second suit on the basis th at the TDPRS all eged no new facts when it fil ed the second suit and that at the time the sui t was filed on May 8, 2001, it was “the same case ithas always been . . . there were no new grou nds to justi fy rem oval at the time the Petition
was filed, and this case should be di smissed because t here w asn’t [sic] grounds to continue it at that time.”6

The relevant p rovisi ons of Section 263.401 provide tha t (a) Unless the court has rende red a final order or granted an extension under Subsection (b), on the f irs t M onday after the first anniversaryof

the date the cour

t rendered a tempor

ary order appointing t he department

as temporary managing conservator, the court shall dismi ss the suit affecting the parent-child rel ationship filed by the depa rt ment that reque sts termination of the parent-chil d relationshi p or reques ts that th e department be named cons ervator of thechild.

. . . . . (c) If the court grants an extension, the co urtshall render a final order or dismiss the suit on or before the date specified in th e extension order and may not gr

ant an additional extension.
In constru ing a statute, we first look at the statute’s plain and common meanin g, and
we presume that the Le gislatur e intend e d the plain meaning of its wor ds. See National Liab. and Fire Ins. Co. v . Allen , 15 S.W.3d 525, 527 (Tex. 2000) ; Libe rty Mut . Ins . Co. v. Ga rriso n Contractors, Inc. , 966 S.W .2d 482, 484 (Tex. 1998 ). If possible, we must ascertain the Legisl ature’s inten t from the language i t used in the statute and not look to extraneousmatters for an i ntent the statute do es not state. S ee Helena C hem . Co. v. Wilkins , 47 S.W.3d 486, 493 (Tex. 2001); Allen , 15 S.W.3d at 527.
The language of Sec

tions 263.401(a) and (c), which is the relevant language in this matter, does not negate the general g rant of authority ex t ended to TDPRS to fil e an original suit affecting t he parent-chil d relationshi p. See Section 102.003( a)(5),(6) ; In re L.L. , 65 S.W.3d 194, 196 (Tex.App.--A marillo 2001, no pet.) (standing of TDPRS to bri ng or maintain suit for protection of a child or to terminate par ental rig hts is pres cribed by the Legislature); In re T.M. , 33 S.W .3d 341, 347 n.5 (T e x.App.--Amarillo, 2000, no pet.) (in creating the suit contempl ated by Secti on 263.401 the Legi slature had the a ut hority to7

determine its parameter s). Nor does theplain lang uage of Section 263. 401 preclude the TDPRS from dismis sing a sui t without prejudice.
The L egislat ure has set out detailed standar ds and procedure s for suits i nvolvi ng protection of children and families. See , e.g. , Family Code Chapters 262 and 263. If the colle ctive will of the Legislature had been to preclude the TD PRS from dismiss ing and then re-filing suit a s was do ne in this i nsta nce, it cou ld ha ve easily so provid ed. For exampl e, among the m any c hoices w hich the Legi slature coul d have made in l imiting thegeneral authority of the TDPRS to dismiss a nd file suits, it could have provided in Section 263.401 that(1) the trial court shall dismiss the suit with prejudice; or (2) the suit and any other suit base d on the same facts and g rounds shall be dismissed; o r (3) follow ing dismis sal of a first suit, no subsequent suit could be filed or maintained absent all egations of facts which support removal of the child, and w hich facts occur red after filing [or di smissal of , or the adversary

hearing i n] the first suit. The Legislatur e did not do so. Compare , e.g ., T EX
. R EV
. C IV
. S TAT
. A NN . art. 4590i § 13.01(e)(3) (Vernon Supp. 2003) (health car

e liab ility actio n to be dismi ssed “with p rejudice to the cla im’s ref iling” if claimant does not either time ly file expert rep ort or voluntarily non-suit the a ction).
In determining that TDPRS’ s econd suit did not have to be d ismissed becaus e new facts were all eged in the se cond suit, the maj ority opi nion refere nceslan gua ge o f In re T.M. , 33 S.W.3d at 347 a nd In re Ruiz , 16 S.W.3d 921, 927 (Tex. App.--Waco 2000, no pet.). However, the Simmons ar e not complaining that TDPRS i mproperl y maintained possession of L.J .S. via the emer gency or der signed on May 7th . Nor do they urge that TDPRS’ possession of L.J .S. throughout theproceedings was impr

oper because TDPR S’8

possession of L.J.S. wasbased on the same facts and grounds as the first suit

. See In re T.M. , 33 S.W.3d at 347; In re Ruiz , 16 S.W.3d at 927.
Section 263.401 does not r equire tr ial courts to determine that a subsequent suit is based on “new facts ” of some timing and character , or to otherw ise dismiss the sui t

. Regardless of whether new facts were pled and regar dless of the natureof any new facts pled, the plain lang uage of Section 263. 401 neither prec luded TDPRS from f iling the second suit seekin g to terminate the Simmons’ par ent-child r

elatio nship wi th L.J.S., nor mandated dismissal of the seco nd suit. Thus, I concur i n the result r eached by the majority.
Phil Johnson Chief Justice