NO. 07-04-00267-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL A JANUARY 13, 2005

______________________________ IN THE INTEREST OF L.W.B., II, A CHILD

_________________________________ FROM THE 72 ND DISTRICT COURT OF LUBBOCK COUNTY; NO. 2003- 520,737; HONORAB LE KEVIN C. HART , JUDGE

_______________________________ Before JO HNSON, C .J., and R EAVIS an d CAMPBE LL, JJ.
MEMORAND UM OPINION Appella nts Louis L arry

Baldwin and Mary Yvonne Baldwin challenge the trial court’s judgment terminating their parental rights to their son, L.W.B. , II and appointing the Departmentof Family and Protective Services permanent mana ging cons ervator of the child. Presenting a sole issue, the Baldwins contend reversal is required because the trial court had a sta tutory dut

y to dismi ss the pe tition to terminatethe parent-child relationship in cause number 2003-520,737 after the Depa r tment’s petition for termination was1 Counsel renewed his objection to the trial court’s jurisdiction that had been raised

at the original adversary hearing. 2 dismissed in cause

number 2 001-514, 702. The Department questions whether (1) the trial court can conside r facts tha t occurred prior tothe adversary hearing in the first case when itrequestsemergenc

y relief in a seco nd case, and (2) f act s that occurred after the first adversary

hearing existed to support the trial court’s order granting emergency relief in the second c ase. We a ffirm.
On July 30, 2001, the Department filed an original petition for protection of achild, conservatorship, and termination of the parent-child relationship. Before rendition of a final judgment, on January 27, 2003, the Department filed a notice of

non-suit without prejudice and on that samedate, thetrial co urtsigned an order dismissing the case withou t prejudice to the refiling of the non-suited claims. Also on January 27, the D epartment filed a second original pet ition for protection of a child, for conservatorship, and for termination of the parent-child relationship. In response, by their original answer, the Baldwins presented a general denial without raising res judi cata or any ot her affirm ative de fense.
When the 2003 case was called for trial, theBaldwins’ attorney objected to the trial court’s jurisdiction to pursue the case after dismissal of the first case. 1 The Dep art ment and other

parties announced ready. The Baldwins’ attorney did not file a written motion or plea to the jur isdictio n, plead res j udicata , nor reference Rule 162 of the Texas Rul es of Civil Procedure nor sections 263.401 or 26 3.402 of t he Texas Family Code. Followi ng2 Although the summary of argument references the 2001 case, the context of the

issue applies to the 2003 case. 3 argument, the trial court proceeded to hear evidence and rendered judgment terminating the Baldwins’ parental rights. Bytheir only issue, the Baldwins contend t he trial court had a statuto ry duty to dismiss the Department’s petition to terminate the parent-child relat ionship. Specifically they contend the 2001 and 2003 cases were based on the same facts and absent a new factual basis, th e trial court had a statutory duty to dismiss the 2003 2 case upon their timely objection. We disagree.
The Baldwins do not suggest that allegations of new facts were essential on grounds that res judi

cata applied ; rather, t heir argument is grounded on the dismissal date of the termination per sections 263.401 and 263.402 of the Code. As we understand the
a rgument, they contend the statutory termination date for the 2001 case appl ied to th e 2003 case because th e latter wa s based o n the same allegat ions as t he first. However , the Baldwins overlook the well-established rule that a non -suit withoutprejudice is not an adjudication of the rights of the parties but instead merely places theparties in the position they were in before the court’s jurisdiction was invoked just as if the suit had neve r b een instituted. See Crofts v. Court of Civil Appeals , 362 S.W. 2d 101, 1 04 (Tex. 1962); see also Yanez v. Milburn, 932 S.W.2d 725, 728 (Tex.App.--Amarillo1996, writ denied) (holding that4

in performing its ministerial function to dismiss the action upon a motion for non-suit, the trial cou rt does no t adjudicate the me rits of th e case).
Under Rule 162 the Department was authorized to take anon-suitat any ti me before ithad presented all of its evidence. In Rexrode v. Bazar, 937 S.W.2d 61 4, 619 (T ex.App.-
- Amarillo 1997, no writ), we observed that Rule 162 was designed to allow a plai ntiff to avoid unexpected events or occurrences shortlybefore or during trial without proceeding to trial
on the merit

s and suf fer an un favorabl e judgmen t. Recently, we held that after a non-suit the Departme nt could file a s econd su it for term ination. See In re L.J.S., 96 S.W.3d 692, 694 (Tex.Ap p.--Amaril lo 2003, pet. den ied). In his co ncurrence, Chief Justice Johnson noted that sect ion 263. 401 does not require new facts be alleged in a subsequent proceedi ng. Id . at 696. Apply ing section 263.401, we have held that a Ru le 11 agreement in an initial proceeding would not support judgment beyond the mandatory dismissal date in a second suit. See In re T.M., 33 S.W.3d 341, 345 (Tex.App.--Amarillo 2000, no pet.). We al so held that the Legislature did not provide for any judicial discretion but imposed a duty o n the trial court to dismiss the proceeding. See In re L.L ., 65 S.W.3d 194, 197 (Tex.App.--Amarillo 2001, pet. dism’d). However, because nei ther sec tions 26 3.401 no r 263.402 prohibi t a second suit by th e Department following a non-suit without prejudice, nor con tain a provision abrogating Rule 162 for purposes of those sections, wehold the trial court did not have a statutory du ty to dism iss the 2 003 proce eding.3 Prior to t he 2001 amendmen t, sub-par agraph (b ) provide d in part : [o]n or before the time desc ribed by S ubsection (a) for the dismissal of the suit, the court may

extend the court’ s jurisdi ction of the suit

. . . . See Act of May 31, 1977, 75th Leg., R.S., ch. 1022, § 90, 1997 Tex. Gen. Laws3733, 3769. 5 We have not overlooked the question of the trial co urt’s jurisdiction implied by t he Baldwins’ attorney in the trial co urt. How ever, because the 2001 amendment to section 263.401(b) 3 removed the reference to the trial court’s jurisdiction and theBaldwins did not present a rgument, i t is not p resented for review. The B aldwins ’ sole i ssue is o verruled

. Our disposi tion of th e Baldw ins’ iss ue preter mits consideration of the Department’s contentions. Accordingly, the judgment of the trial court is affirmed.

Don H. Reavis Justice Campbell, J., concurring.

NO. 07-04-00267-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL A6 JANUARY 13, 2005

______________________________ IN THE INTEREST OF L.W.B., II, A CHILD

_________________________________ FROM THE 72 ND DISTRICT COURT OF LUBBOCK COUNTY; NO. 2003- 520,737; HONORAB LE KEVIN C. HART , JUDGE

_______________________________ Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
CONCURR ING OPINIO N
I concur with the result reached by the majority. In my view, thoug h, wh en the Department of

Family and Protective Services seeks termination of the p arent-child relationship, it may no t take a n onsuit w ithout th e approva l of the t ri al co urt. Tex . Fam. Code Ann. § 161.203 ( Vernon 2002 ). Here, a s the cou rt’s opin ion note s, the tri al court signed an order dismissing cause number 2001-514,702 wi thout prejudice in responseto the notice of nons uit file d by the D epartment

. James T. Campbell Justice