## NUMBER 13 - 20 - 00268 - CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI

– EDINBURG

IN THE INTEREST OF J.M.G. , J.G. III , AND J.X.G. , CHILDREN
On appeal from the 319th District Court of Nueces County , Texas.



## MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Silva Memorandum Opinion by Chief Justice Contreras Appellant , the Office of the Attorney General (OAG) , brings this restricted appeal challenging an order modifying the parent

- child relationship that eliminated appellee J.G. Jr. ’ s (J.G.) obligation to pay child and medical support arrears to appellee J.M.O. on behalf of their minor children. By five issues , OAG argues that: (1) the OAG satisfied the jurisdictional requirements to bring a restricted appeal; and (2

– 5) error is apparent on the face of the record because , among other things , the order was entered over OAG ’ s2 objections and without a hearing. We d ismiss for want of jurisdiction. See T EX

. R. A PP

. P. 42.3(a) , 43.2(f). I. B ACKGROUND In 2007 , the trial court appointed J.M.O. and J.G. joint managing conservators of their children , awarded J.M.O. the right to designate the children ’ s primary residence , and ordered J.G. to pay $245.00 per month in child support and $91.00 per month in cash medica l support to J.M.O. In July 2011 , the OAG filed a motion for enforcement of child and medical support , alleging that J.G. owed $9 , 768.51 in child support arrears and $4 , 247.66 in medical support arrears. The trial court granted the motion in favor of OAG i n November 2011. In 2014 , J.G. moved for an order modifying the parent

- child relationship to award him the exclusive right to designate the children ’ s primary residence. The trial court ordered all relief requested in favor of J.G. and further ordered that neither J.G. nor J.M.O. was obligated to continue paying child support. In 2016 , J.G. again petitioned the court for an order modifying the parent

- child relationship. In 2017 , J.G. and J.M.O. attended mediation which resulted in a mediated set tlement agreement providing , among other things , that any child support arrears owed by J.G. to J.M.O. would be waived. In March 2018 , the OAG filed a petition in intervention in the case , asserting that it is a necessary party to the action because J.G. ’ s action seeks to “ establish , modify , or enforce a support right assigned to the [OAG] pursuant to Texas Family Code Chapter 231. ” See T EX

. F AM

. C ODE A NN

. §§ 231.001

– .309. In its filing , OAG sought a modification of the 2014 order and a judgment verifying J.G. ’ s child support arrears as $2 , 196.57 and medical support arrears as $3 , 718.17.3 In June 2018 , J.M.O. and J.G. submitted , and the trial court signed , a temporary order consistent with their 2017 mediated settlement agreement. On December 27 , 2019 , J.G . and J.M.O. filed a proposed final order , which included as one of its terms the waiver of J.G. ’ s child support arrears. Three days later , the OAG filed its objection to the proposed order , asserting that the “ proposed order does not contain a signature from a representative of the [OAG] .

. . and the OAG is a necessary party with active pleadings on file. ” The OAG further contended that “ the proposed order was not previously submitted to the OAG for review before filing with the C our t ,” and that “ the OAG is not in agreement with the Order in its current form. ” The OAG requested “ that the Court grant the objection of the OAG and require the OAG[ ‘ s] approval and signature of any Order submitted to this Court. ” On January 8 , 2020 , the t rial court adopted J.G. and J.M.O. ’ s December 27 , 2019 proposed order and signed a final judgment in the case. Five months later , on June 11 , 2020 , the OAG filed its notice of restricted appeal from the trial court ’ s January 8 order. 1 II. R ESTRICTED A PPEAL Subject to limited exceptions , a party seeking to appeal a trial court ’ s judgment must file a notice of appeal within thirty days after the judgment is signed. See T EX

. R. A PP

. P. 26.1. One such exception is a restricted appeal. See id. R . 26.1(c) , 30. To establish its entitlement to a restricted appeal , an appellant must prove that : (1) it filed its notice of restricted appeal within six months after the judgment was signed; (2) it was a party to the underlying suit; (3) it did not participate in the hearing that resulted in the

1 J.G. has filed an appellee ’ s brief. Pro se appellee J.M.O. was given an opportunity to file a brief but did not do so.4 complained

- of judgment and did not file any post

- judgment motions or request findings of fact and conclusions of law; and (4) error is apparent on the face of the record. See id. R. 30; Ex parte E.H. , 602 S.W.3d 486 , 495 (Tex. 2020) . The first three requirements are jurisdictional. Ex parte E.H. , 602 S.W.3d at 495. Failure to satisfy any of the th ree requirements precludes an appellate court ’ s ability to entertain the appeal. Id. at 497. It is undisputed that OAG filed a notice of the restricted appeal within six months after the judgment was signed and , as the state ’ s Title IV

- D agency , 2 was a party to the underlying lawsuit. Accordingly , we proceed to consider the non

- participation requirement

— OAG ’ s first issue on appeal. III. N ON - P ARTICIPATION By its first issue , OAG contends that it met the non

- participation requirement to bring a rest ricted appeal. Specifically , it argues that its filing of an objection to J.G. and J.M.O. ’ s proposed final order did not constitute “ participation ” because the trial court acted outside “ its authority to enter a final order in a [suit affecting the parent

- child relationship] without holding a hearing , receiving evidence , or making a record. ” J.G. contends that OAG ’ s December 30 , 2019 filing objecting to J.G. and J.M.O. ’ s proposed final order amounted to participation for purposes of a restricted appeal , and , as such , notwithstanding any “ purported errors in the January 8 Order ,” OAG should have brought a timely appeal or timely filed a motion to modify or correct the judgment. A. Applicable Law A restricted appeal is limited to a “ party who did not participate

— either in person

2 “ The OAG is the designated [Title] IV

- D agency in Texas and has the power to enforce child support orders and collect and distribute support payments. ” Office of Att ’ y Gen. v. Scholer , 403 S.W.3d 859 , 862 (Tex. 2013) (citing T EX

. F AM

. C ODE A NN

. §§ 231.001 , .101(a)(5)

– (6)).5 or through counsel

— in the hearing that resulted in the judgment complained of .

. . . ” T EX

. R. A PP

. P. 30. The “ policy behind the non[

- ]participation requirement is to deny appeal by writ of error[ 3 ] to those who should reasonably resort to the quicker method of appeal. ” Texaco , Inc. v. Cent. Power & Light Co. , 925 S.W.2d 586 , 5 90 (Tex. 1996) (citing Lawyers Lloyds v. Webb , 152 S.W.2d 1096 , 1098 (Tex. 1941) ); see T EX

. R. A PP

. P. 26.1. “ Those who participate in the trial leading up to the rendition of judgment are familiar with the record , and are therefore in position to prepare for appeal on short notice; whereas , those who do not so participate .

. . and are ther efore unfamiliar with the record , may need additional time

. . . to [so] familiarize themselves ” and prepare for appeal. Texaco , 925 S.W.2d at 590; see also Cox v. Cox , 298 S.W.3d 726 , 731 (Tex. App.

—Austin 2009 , no pet.). What exactly “ participat[ion] .

. . in the hearing ” consists of under Rule 30 requires

a case - by

- case, fact

- specific determination

. See T EX

. R. A PP

. P. 30. The Texas Supreme Court has ruled that the primary inquiry is “ whether the appellant has participated in ‘ the decision

- making event ’ that results in judgment adjudicating the appellant ’ s rights

. ” Texaco , 925 S.W.2d at 589

– 90. “ [ B ] ecause trial courts decide cases in a wide variety of procedural settings ,” “ [t]he nature and extent of participation that precludes appeal by [restricted appeals] in any particular case is a matter of degree. ” Id. at 589 (citing Stubbs v. Stubbs , 685 S.W.2d 643 , 645 (Tex. 1985) , abrogated on other grounds by Ex parte E.H. , 602 S.W.3d at 486 ). Accordingly , the focus of our analysis is on whether the record

3 The issue in Texaco arose in the context of a writ of error. See Texaco , Inc. v. Cent. Power & Light Co. , 925 S.W.2d 586 , 590 (Tex. 1996)

. Writ of error practice in Texas was replaced by that of restricted appeals in 1997. See T EX

. R. A PP

. P. 30 ( “ Restricted appeals replace writ of error appeals to the court of appeals. Statutes pertaining to writ of error appeals to the court of appeals apply equally to restricted appeals. ” )

.6 reflects that OAG participated in the relevant “ decision

- making event. ” Id. at 589

– 90. We conclude that it d oes

. B. Analysis The decision

- making event in this case was the trial court ’ s Janu ary 8 , 2020 order modifying the parent

- child relationship. As detailed above , the record reflects that the January 8 order was based on J.G. and J.M.O. ’ s proposed final order filed on December 27 , 2019. OAG filed its objection to the proposed order on December 30 , 2019 , in which it argued that the “ proposed order does not contain a signature from a representative of the [OAG] ,” “ OAG is a necessary party with active pleadings on file ,” “ the proposed order was not previously submitted to the OAG for review before filing with the C ourt ,” and “ the OAG is not in agreement with the Order in its current form. ” The OAG requested “ that the Court grant the [OAG ’ s] objection. ” On January 8 , 2020 , with both par ties ’ filing s before it , the trial court adopted J.G. and J.M.O. ’ s December 27 proposed order and rendered final judgment in the case. In arguing that its written objection does not constitute participation , OAG cites Phagan v. Aleman , 29 S.W.3d 632 (Tex. App.

— Houston [1st Dist.] 2000 , no pet.) and Attorney General of Texas v. Orr , 989 S.W.2d 464 (Tex. A pp.
—Austin 1999 , no pet.) for the proposition that “‘ non - participation ’ is satisfied when the trial court does not convene proceedings required by law

. ” We find Phagan and Orr distinguishable and , in fact , detrimental to OAG ’ s argument in this case

. The courts in Phagan and Orr both encountered issues regarding child support orders. See Phagan , 29 S.W.3d at 633; Orr , 989 S.W.2d at 466. In both of those cases , however , the trial courts referred the matters to associate judges , as authorized by the7 Texas Family Code. See generally T EX

. F AM

. C ODE A NN

. §§ 201.001

– .20 9; Phagan , 29 S.W.3d at 633; Orr , 989 S.W.2d at 466. The associate judges held evidentiary hearings on the parties ’ motions and issued reports and recommendations for the referring courts ’ review. Phagan , 29 S.W.3d at 633; Orr , 989 S.W.2d at 467. Under Texas Family Code §§ 201.015 (de novo hearing before referring court) and 201.1042 (de novo hearing before referring court in Title IV

- D c ases ) , a party may appeal the associate judge ’ s report to the referring court. 4 See T EX

. F A M

. C ODE A NN

. §§ 201.015 , .1042. A party who files a timely appeal is entitled to a de novo hearing before the referring court

. See id. § 201.015(f) ( “ The referring court , after notice to the parties , shall hold a de novo hearing ” ); § 201.1042(a). The cour ts in Phagan and Orr held that parties who participate in a hearing before an associate judge , but not before the referring court after a request for de novo hearing , have not participated for purposes of a restricted appeal because the relevant “ decision

making event ” is the second , de novo hearing. P hagan , 29 S.W.3d at 634

– 35; Orr , 989 S.W.2d at 468. In other words , the appealing parties took no part in the relevant decision

making events because they (1) were entitled to a “ new and independent action ” before the referring court , Orr , 898 S.W.2d at 467 , and (2) presented no arguments and filed no pleadings before the referring court on that action. Further , the courts in both Phagan and Orr noted that “ if , notwithstanding the timely filing of a notice of appeal , the referring court renders judgment without holding a de novo

4 “ Judicial review by trial de novo is not a traditional appeal , but a new and independent action ch aracterized by all the attributes of an original civil action. ” Attorney General of Texas v. Orr , 989 S.W.2d 464 , 467 (Tex. App.

—Austin 1999, no pet.) (citing Key W. Life Ins. Co. v. State Bd. of Ins. , 350 S.W.2d 839 , 846 (Tex. 1961)).8 hearing , the ‘ hearing ’ that leads to the judgment [for purposes of a restricted appeal] occurs when the referring court considers the matter. ” Orr , 989 S.W.2d at 468 ; see also Phagan , 29 S.W.3d at 634

– 35 . That is because , unless expressly required by the language of a rule , “ t he word ‘ hearing ’ does not n ecessarily contemplate either a personal appearance before the court or an oral presentation to the court

. ” Orr , 989 S.W.2d at 468

n .3 (citing Martin v. Martin , Martin & Richards , Inc. , 989 S.W.2d 357 , 359 (1998); Gulf Coast Inv. Corp. v. Nasa 1 Bus

. Ctr. , 754 S.W.2d 152 , 153 (Tex. 1988) (per curiam) ). Indeed , in myriad procedural settings , Texas courts have found “ participation ” in the restricted appeal context even in the absence of personal appearances or oral presentations before a court ’ s entry o f final judgment

. See , e.g. , Lake v. McCoy , 188 S.W.3d 376 , 378 (Tex. App.

— Dallas 2006 , no pet.) (holding that appellant participated in the decision

- making event when he filed a response to a motion for summary judgment , even though he did not attend a hearing); Starks v. Tex. Dep ’ t of Crim

. Just

. , 153 S.W.3d 621 , 624 (Tex. App.

— Amarillo 20 04 , no pet.) (concluding that an inmate participated in the decision

- making event , dismissal for a frivolous complaint , even without a hearing , when he made at least nine filings prior to trial , including a motion to consolidate complaints and an applicati on to proceed in forma pauperis ); see also Orr v. Barrett , Burke , Wilson , Castle , Daffin & Frappier , L.L.P. , No. 09

- 03

- 073

- CV , 2004 WL 637898 , at *3 (Tex. App.

— Beaumont Apr. 1 , 2004 , no pet.) (mem. op.) ( concluding that appellants participated in the decision

- making event , even without a hearing , when they filed their motion to retain their cause on the court ’ s docket , since the trial court dismissed the suit by ruling on that motion); Bonton v. Wittmer , No. 14

- 03

- 00932

- CV , 2004 WL 906492 , at *1 (Tex. App.

— Houston [14th Dist.] Apr. 29 , 2004 , pet. denied) (mem. op.) (concluding9 that appellant ’ s motion in response to a motion to dismiss constituted participation for purposes of restricted appeal , even without a hearing). In this case , unlike in Phagan and Orr , there was no such split hearing process

— the trial court retained the case to which OAG was a party for over eight years without referring it to an associate judge. Most relevantly , unlike in Phagan and Orr , the OAG made a filing in the hearing le ading to the final judgment

— its objection to J.G. and J.M.O. ’ s proposed final order. As in Phagan and Orr , notwithstanding the fact that no personal appearance or oral presentation occurred in this case , the hearing for purposes of a restricted appeal occu rred when the trial court considered the parties ’ filing s on the proposed final order. 5 Phagan , 29 S.W.3d at 634

– 35; Orr , 989 S.W.2d at 468. Accordingly , OAG ’ s argument that “‘ non - participation ’ is satisfied when the trial court does not convene proceedings required by law ” is inapposite , as the relevant proceeding occurred here. In sum , the relevant inquiry in this case is whether OAG participated in the

“ decision

- making event. ” See Texaco , 925 S.W.2d at 589

– 90. The requisite amount of participation for purposes of a restricted appeal is “ a matter of degree. ” Id. at 589. Here , OAG ’ s filing of an objection to J.G. and J.M.O. ’ s proposed final order , the same proposed

5 We note that Texas Family Code § 105.003 does not expressly call for personal appearances or oral hearings. See T EX

. F AM

. C ODE A NN

. § 105.003. In suggesting that there is such a requirement , OAG cites Ex parte E.M.P. , 572 S.W.3d 361 , 364 (Tex. App.

—Amaril lo 2019 , no pet.). However , that case is distinguishable in at least two respects. First , Ex parte E.M.P. arose in the context of an expunction order , which , unlike § 105.003 , has been interpreted to disallow a ruling on the pleadings. Id. (citing Tex. Dep ’ t of Pub. Safety v. Moran , 949 S.W.2d 523 , 526 (Tex. App.

— San Antonio 1997 , no writ); Tex. Dep ’ t of Pub. Safety v. Steele , 56 S.W.3d 352 , 353 (Tex. App.

— Beaumont 2001 , no pet.)); see T EX

. F AM

. C ODE A NN

. § 105.003. Second , unlike this case , where the OAG filed both an intervention and an objection to J.G. and J.M.O. ’ s proposed final order , the pleading in Ex parte E.M.P. consisted of only an answer. Ex parte E.M.P. , 572 S.W.3d at 36 4 ; see Stubbs v. Stubbs , 685 S.W.2d 643, 646 (Tex. 1985) ( “ Filing an answer .

. . is not participation [for purposes of a restricted appeal]. ” ).10 order the trial judge adopted in disposing of the case two weeks later, constituted sufficient “ participation ” for purposes of restricting this Court ’ s jurisdiction to entertain OAG ’ s appeal. We also conclude such a finding is consistent with Rule 30 ’ s underlying policy conside rations , given OAG ’ s ongoing relationship with this case for a span of over eight years. See T EX

. R. A PP

. P. 30; Texaco , 925 S.W.2d at 5 90. A ccordingly , we cannot reach the merits of OAG ’ s appeal , as we lack jurisdiction to do so. See Ex parte E.H. , 602 S.W.3d at 497. III. C ONCLUSION We dismiss the appeal for want of jurisdiction. See T EX

. R. A PP

. P. 42.3(a) , 43.2(f).

DORI CONTRERAS Chief Justice Delivered and filed on the 7th day of October , 2021.