Vacate Judgment and Dismiss the Case and Opinion Filed March 3, 2022

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-21-00898-CV

IN THE INTEREST OF J.S., A CHILD

On Appeal from the County Court At Law No. 1

Kaufman County, Texas

Trial Court Cause No. 104418-CC

MEMORANDUM OPINION

Before Justices Myers, Partida-Kipness, and Carlyle

Opinion by Justice Myers

J.S.’s mother appeals the termination of the parent–child relationship between 

her and J.S. A jury found the Texas Department of Family and Protective Services 

proved statutory grounds under paragraphs (D), (E), (N), (O), and (P) of section 

161.001(b)(1) of the Family Code and proved that termination was in the child’s best 

interest. TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (N), (O), and (P); id. § 

161.001(b)(2). Mother brings six issues on appeal contending the evidence was 

legally and factually insufficient to prove the statutory grounds, the evidence was 

legally and factually insufficient to prove termination was in the child’s best interest, 

and the trial court abused its discretion by admitting evidence of drug tests showing 

she, the child, and the child’s father tested positive for methamphetamine. We 
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questioned whether the trial court’s jurisdiction expired under section 263.401(a) of 

the Family Code before the trial and judgment, and we asked the parties to submit 

briefs concerning the trial court’s jurisdiction. We conclude the trial court’s

jurisdiction expired on February 8, 2021, and the trial court had no jurisdiction to 

render the judgment in this case signed September 20, 2021. We vacate the trial 

court’s judgment and dismiss the case for want of subject-matter jurisdiction.

JURISDICTION UNDER FAMILY CODE SECTION 263.401

“A judgment is void when it is apparent that the court rendering judgment 

lacked jurisdiction over the parties or subject matter, had no jurisdiction to enter the 

particular judgment, or had no capacity to act.” In re D.S., 602 S.W.3d 504, 512 

(Tex. 2020) (internal punctuation omitted). Appellate courts have jurisdiction to 

determine whether an order or judgment underlying the appeal is void and to make 

appropriate orders based on that determination. In re P.Z.F., No. 05-21-00161-CV, 

2021 WL 3941667, at *2 (Tex. App.—Dallas Sept. 2, 2021, pet. denied).

The question of jurisdiction is fundamental and may be raised at any time, 

including on appeal. Tullos v. Eaton Corp., 695 S.W.2d 568, 568 (Tex. 1985) (per 

curiam). The court of appeals must ascertain its own jurisdiction.

The supreme court has stated,

The Texas Legislature enacted Texas Family Code section 263.401 to 

encourage prompt resolution of suits in which the Department of 

Family and Protective Services requests termination of the parent–child 

relationship or requests that the Department be named conservator of a 

child. Section 263.401 does this by requiring trial courts presiding over 

such suits to commence the trial on the merits within one year after the 
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initial temporary order. In extraordinary circumstances defined in 

section 263.401(b), trial courts may extend that one-year deadline, or 

“dismissal date” in the parlance of the statute. But if the trial court 

neither commences trial by the dismissal date nor extends it in 

accordance with section 263.401(b), the statute dictates a dire 

consequence: the trial court’s jurisdiction over the suit “is terminated 

and the suit is automatically dismissed.”

Interest of G.X.H., 627 S.W.3d 288, 292 (Tex. 2021) (quoting FAM. § 263.401(a)).

Under section 263.401, subsection (a) provides that the trial court’s 

jurisdiction over the Department’s suit is terminated on the first Monday following 

the first anniversary of the Department’s appointment as temporary managing 

conservator. See FAM. § 263.401(a). If the trial does not commence on or before 

that date, then the suit is automatically dismissed. Id.

Subsection (b) provides a way to extend the dismissal date by up to 180 days. 

Subsection (b) provides:

(b) Unless the court has commenced the trial on the merits, the court 

may not retain the suit on the court’s docket after the time described by 

Subsection (a) unless the court finds

that extraordinary circumstances necessitate the child remaining 

in the temporary managing conservatorship of the department 

and 

that continuing the appointment of the department as temporary 

managing conservator is in the best interest of the child. 

If the court makes those findings, the court may retain the suit on the 

court’s docket for a period not to exceed 180 days after the time

described by Subsection (a). If the court retains the suit on the court’s 

docket, the court shall render an order in which the court:

(1) schedules the new date on which the suit will be 

automatically dismissed if the trial on the merits has not 
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commenced, which date must be not later than the 180th day after 

the time described by Subsection (a);

(2) makes further temporary orders for the safety and welfare of 

the child as necessary to avoid further delay in resolving the suit; 

and

(3) sets the trial on the merits on a date not later than the date 

specified under Subdivision (1).

Id. § 263.401(b) (paragraph structuring in first sentence added).

Under this statute, the trial court may commence the trial after the initial 

dismissal date by following a two-step process. First, the court must take action to 

retain the case on the court’s docket after the initial dismissal date. The court does 

this by making two findings before the initial dismissal date: (1) “that extraordinary 

circumstances necessitate the child remaining in the temporary managing 

conservatorship of the department,” and (2) “that continuing the appointment of the 

department as temporary managing conservator is in the best interest of the child.” 

Id. If the trial court makes these two findings before the end of the initial dismissal 

date, then the court retains jurisdiction of the case for up to 180 days after the initial 

dismissal date. Id. If the trial court does not make these findings before the end of 

the initial dismissal date, then the trial court’s jurisdiction is terminated and the case 

is automatically dismissed. Id. § 263.401(a). see G.X.H., 627 S.W.3d at 301 (“trial 

court’s failure to timely extend the automatic dismissal date before that date passes 

. . . is jurisdictional”). The court also sets the date of the new dismissal date (which 

must be no later than 180 days after the initial dismissal date), sets the date for the 
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trial to commence, and makes any necessary temporary orders for the child’s safety 

and welfare. These actions are not jurisdictional, and the trial court’s defects in 

performing them are subject to being waived if not timely objected to. See G.X.H., 

627 S.W.3d at 301.

The findings necessary to keep the case on the docket—extraordinary 

circumstances and best interest of the child—are best made in writing in written 

findings or in an order, but they may also be made “orally on the record or in some 

other writing.” Id. at 299. The supreme court has recognized only one situation in 

which the making of the findings may be presumed, and that is when the trial court 

grants an extension after holding a hearing and there is no reporter’s record of the 

hearing. Id.

In this case, the Department filed a petition to terminate the parents’ parental 

rights on February 4, 2020. The trial court appointed the Department to be the 

child’s temporary managing conservator the same day. The first Monday after the 

first anniversary of February 4, 2020, was February 8, 2021, which was the initial 

dismissal date for the Department’s suit for termination.

The “Case Summary” in the clerk’s record shows the case was set for trial on 

February 8, 2021.1 The reporter’s record for the hearing on that date shows the trial 

did not commence. Instead, the parents each requested a jury trial. The trial court 

1 Unless otherwise specified, all dates hereafter in this opinion are in the year 2021.
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conferred off the record with the parties’ attorneys and then announced on the record 

that the parents would receive a jury trial and that the trial would take place on June 

14. The attorney for the Department asked the court to make findings so the case 

could be retained on the court’s docket:

[Department’s attorney]: . . . Given the new orders on the plan, the 

timeline for the case, I’m asking that the Court find that it’s in the 

child’s best interest to remain in the care of the Department and extend 

the case so that it can be officially retained on the Court’s docket.

The Court: Any objection?

[Father’s attorney]: No objection, Judge.

[Mother’s attorney]: No objection.

The Court: All right. I will find that it’s in the best interest of the child 

for this case to be extended, that the child remain in its current 

placement and that the Department remain as the temporary managing 

conservator of the child.

The new dismissal date will be—

[Department’s attorney]: It would be 180 days from today.

The Court: Yes, 180 days from today.

On March 30, the trial court signed an order finding “that extraordinary 

circumstances necessitate the child remaining in the temporary managing 

conservatorship of the Department,” “that continuing the appointment of the 

Department as temporary managing conservator is in the best interest of the child,” 

setting the new dismissal date for August 7 (which was 180 days after February 8), 

and setting the case for trial on June 14. The jury trial was held on June 14 and 15, 

which was less than 180 days after February 8. 
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Because the initial dismissal date was February 8, the trial court’s written 

findings on March 30 came too late to extend the jurisdictional period and maintain 

the case on the court’s docket. Thus, the question is whether the trial court’s oral 

findings on the record on February 8 were sufficient to satisfy the requirements of 

section 263.401(b) and thereby extend the jurisdictional period and maintain the case 

on the court’s docket. 

The court orally made this finding during the February 8 hearing: “I will find 

that it’s in the best interest of the child for this case to be extended, that the child 

remain in its current placement and that the Department remain as the temporary 

managing conservator of the child.” This finding may satisfy the requirement that 

the court find “that continuing the appointment of the department as temporary 

managing conservator is in the best interest of the child.” But it does not satisfy the 

requirement that the court find “that extraordinary circumstances necessitate the 

child remaining in the temporary managing conservatorship of the department.” A 

finding that it is in the child’s best interest for the case to be extended and for the 

Department to remain as temporary managing conservator is not a finding of 

extraordinary circumstances as required by subsection (b). 

The Department argues that the trial court made the 

extraordinary-circumstances finding on March 30 and that Mother waived the timing 

of making the finding by not objecting in the trial court. The Department relies on 

G.X.H. in support of this argument. In G.X.H., the supreme court distinguished 
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between the findings necessary to maintain the case on the trial court’s docket and 

the orders necessary to reset the trial date, which are numbered (1), (2), and (3) in 

subsection (b). The supreme court said:

we conclude that, while a trial court’s failure to timely extend the 

automatic dismissal date before that date passes—through a docketsheet notation or otherwise—is jurisdictional, claimed defects relating 

to the other requirements of 263.401(b) are not. Accordingly, with the 

exception of a trial court’s failure to extend the automatic dismissal date 

before it passes, complaints regarding the trial court’s compliance with 

the requirements in subsection (b) must be preserved for appellate 

review.

G.X.H., 627 S.W.3d at 30. The findings of extraordinary circumstances and best 

interest are the actions necessary “to timely extend the automatic dismissal date 

before that date passes,” which the supreme court said were jurisdictional. What the 

supreme court said were not jurisdictional were the other requirements of subsection 

(b), including setting the new dismissal date and date of trial and rendering any 

necessary temporary orders. Those latter requirements are not jurisdictional, and 

“complaint regarding the trial court’s compliance with [those requirements] must be 

preserved for appellate review.” Id. (“[W]e hold their complaints regarding the 

timing and form of the order resetting the trial and dismissal dates are waived.”).

But the trial court’s failure to make the extraordinary-circumstances and best-interest 

findings are jurisdictional and not subject to waiver.

Section 263.401(a) and (b) clearly mandate that at the end of the initial 

dismissal date, if the trial on the merits has not commenced, the trial court’s 

jurisdiction is terminated and the suit for termination is dismissed unless the trial 
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court has made both findings required by subsection (b). In this case, the record 

does not show that the trial court, before the end of the initial dismissal period on 

February 8, commenced the trial or made the finding “that extraordinary 

circumstances necessitate the child remaining in the temporary managing 

conservatorship of the department.” Therefore, at the end of February 8, the trial 

court’s jurisdiction terminated and the case was automatically dismissed.2 The trial 

court had no jurisdiction over the case when it signed the judgment on September 

20, 2021, and that judgment is void.

When a party appeals a void judgment due to lack of subject-matter 

jurisdiction, we have jurisdiction to vacate the judgment and dismiss the case for 

lack of subject-matter jurisdiction. Pappas v. Shamoun & Norman, LLP, No. 05-16-

01405-CV, 2018 WL 2749691, at *3 (Tex. App.—Dallas May 31, 2018, no pet.) 

(mem. op.); Duggan v. Tanglewood Villa Owners Ass’n, No. 05-16-00300-CV, 2017 

WL 2610032, at *2–3 (Tex. App.—Dallas June 16, 2017, no pet.) (mem. op.); see 

Freedom Commc’ns, Inc. v. Coronado, 372 S.W.3d 621, 623 (Tex. 2012) (“appellate 

courts do not have jurisdiction to address the merits of appeals from void orders or 

2 The Texas Supreme Court’s Thirty-Third Emergency Orders Regarding the COVID-19 State of 

Disaster, which was effective from January 14, 2021, to April 1, 2021, permitted trial courts to extend 

deadlines, but the order said trial courts could “extend the initial dismissal date as calculated under Section 

263.401(a) only as provided by Section 263.401(b) or (b-1).” See Thirty-Third Emergency Order 

Regarding the COVID-19 State of Disaster, 629 S.W.3d 179, 180 (Tex. Jan. 14, 2021) (mem.). Nothing in 

the emergency order shows the extensions were automatic. As discussed above, there was no order in this 

case extending the dismissal date “as provided by Section 263.401(b).”
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judgments; rather, they have jurisdiction only to determine that the order or 

judgment underlying the appeal is void and make appropriate orders based on that 

determination”). 

CONCLUSION

Because the trial court lacked subject-matter jurisdiction over this case after 

February 8, 2021, we vacate the trial court’s judgment signed September 20, 2021,

and we dismiss the case for lack of subject-matter jurisdiction.

210898f.p05

/Lana Myers/

LANA MYERS

JUSTICE
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

IN THE INTEREST OF J.S., A 

CHILD

No. 05-21-00898-CV 

On Appeal from the County Court At 

Law No. 1, Kaufman County, Texas

Trial Court Cause No. 104418-CC.

Opinion delivered by Justice Myers. 

Justices Partida-Kipness and Carlyle 

participating.

In accordance with this Court’s opinion of this date, we VACATE the 

judgment signed September 20, 2021, and DISMISS the cause for lack of subjectmatter jurisdiction.

Judgment entered this 3

rd day of March, 2022.