In The 

Court of Appeals 

Seventh District of Texas at Amarillo

No. 07-14-00344-CV 

IN RE JOSHUA EPPS, RELATOR 

 

OPINION ON ORIGINAL PROCEEDING FOR WRIT OF MANDAMUS 

 

October 13, 2014 

 

MEMORANDUM OPINION 

 

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. 

Pending before the court is Joshua Epps’ petition for writ of mandamus wherein 

he requests that we “issue a writ of mandamus directing the Honorable Jim Bob Darnell 

to vacate his orders in Cause 2013-506,729, as any action by the district court in that 

matter is void.” Through four issues, Epps contends that 1) the trial court erred in 

entering temporary orders because it no longer had plenary power over the cause, 2) a 

bill of review does not revive jurisdiction, 3) the trial court abused its discretion by 

ordering Epps to pay attorney’s fees if he “appeal[ed] that other matter,” and 4) Epps 

had no adequate remedy at law because the trial court’s order is void. We deny the 

petition for writ of mandamus.

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1

Appended to the petition were six tabs. Several of the tabs contained a morass of documents

unaccompanied by an index or table of contents. So, we were left to scroll up, down and through those 

tabs to determine their content and the relevance, if any, of the items included. This general, unindexed 

tender did little to facilitate disposition of the proceeding, especially since many of the items were 

duplicates of others. Given the advent of e-filing, parties would do well to index each separate item 

contained in an appendix or otherwise derive a method through which the appendix may be easily 

searched. 
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Background

On April 29, 2013, real party in interest, Melissa Jimenez (Jimenez) had her 

parental rights terminated to the minor child, R.S.E, per her affidavit relinquishing her 

interest in the child. Via a separate proceeding, Adoption Covenant (an adoption 

agency) unsuccessfully sought to terminate Epps’ parental rights to the child. 

Thereafter, the trial court appointed Epps as sole managing conservator on July 15, 

2013, via a third and independent proceeding that he commenced. Adoption Covenant

had served as the child’s managing conservator until that time. 

On September 4, 2013, Jimenez filed an original petition for bill of review 

requesting that the judgment or final order in the termination proceeding be set aside. 

Adoption Covenant initially opposed the petition but then filed its own “counter-petition” 

for bill of review also requesting that the decree be nullified. The trial court, via written 

order, denied the bill of Jimenez but granted that of Covenant on February 18, 2014. 

That is, it specified that: “[t]he relief for a Bill of Review as requested by the CounterPetitioner ADOPTION COVENANT be GRANTED and that the April 29, 2013 Order of 

Termination be set aside and that a new trial be granted.” (Emphasis in original). The 

order made no mention of Epps’ conservatorship. 

On March 12, 2014, Jimenez petitioned to modify the parent-child relationship,

and the trial court heard same on September 16th and 17th of 2014. Thereafter, it 

orally pronounced temporary orders through which Jimenez was granted visitation to 

the child beginning on September 19, 2014. So too was she appointed joint managing 

conservator of the child and given the exclusive right to make educational decisions for 

the child over whom she had previously relinquished her parental rights. This petition 

for writ of mandamus followed before the trial court’s oral pronouncements were 
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memorialized in writing. In effect, Epps complains of the decision to grant the child’s 

biological mother rights as a conservator and to visitation. 

Analysis

Epps initially contends that the trial court had no jurisdiction to render an order 

granting Jimenez rights of a conservator in Cause Number 2013-506,729. The latter 

was the cause through which Covenant attempted to terminate the parental relationship 

between Jimenez and the child. As previously mentioned, termination was ordered 

through a final judgment that Jimenez did not timely appeal. So, in Epps’ view, the trial 

court lost jurisdiction over that proceeding long ago, and orders entered therein after 

jurisdiction expired were void. Yet, the mandamus record before us illustrates that the 

foregoing cause was consolidated with cause numbers 2013-506,809 and 2013-

507,082 at the behest of Epps. In so consolidating the proceedings, the trial court also 

ordered that cause number 2013-506,729 be the controlling number. Cause number 

2013-507,082 involved Epps’ effort to be 1) declared father of the child and 2) assigned 

managing conservator over his offspring. Continuing jurisdiction over that dispute 

exists. In re Chester, 398 S.W.3d 795, 802 (Tex. App.—San Antonio 2011, orig. 

proceeding) (stating that a trial court has continuing jurisdiction over orders designating 

conservatorship). So, given the consolidation order, the trial court does indeed have 

jurisdiction to issue orders under cause number 2013-506,729. 

Next, Epps contends that Jimenez lacked standing to obtain any type of 

conservatorship over the child because her rights were terminated via a final judgment. 

Yet, she petitioned for a bill of review to set aside that final judgment. The effect of the 

order granting that petition was to nullify the judgment or order terminating her parental 

rights. Caldwell v. Barnes, 154 S.W.3d 93, 96-98 (Tex. 2004) (stating that an order 

granting a bill of review nullifies the judgment being attacked and leaves the parties to 
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adjudicate the original controversy). So, because her parental rights to the child have 

not been terminated, it cannot be said that she lacks standing to seek and obtain 

conservatorship over the child because her parental rights were finally terminated.

Finally, Epps contends that the trial court abused its discretion in ordering that he 

pay Jimenez “$2,500 . . . if you do appeal that other matter.”2 That allegedly chilled his 

right to seek relief through a petition for writ of mandamus. Yet, a writ of mandamus is 

largely governed by equitable principles. In re Prudential Ins. Co. of America, 148 

S.W.3d 124, 138 (Tex. 2004). An appeal is a legal remedy. In re Pannell, 283 S.W.3d 

31, 35 (Tex. App.—Fort Worth 2009, orig. proceeding). One is not the other. Ordering 

he pay attorney’s fees should an “appeal” of some order be undertaken is not ordering 

that he pay Jimenez’ attorney’s fees if he petitions for a writ of mandamus. So, it does 

not logically follow that a directive to pay fees if a party eventually “appeals” an issue 

when the issues becomes appealable chills the right to seek interim relief through a writ 

of mandamus.

Additionally, a trial court has broad discretion to award reasonable attorney's fees

in matters involving the parent-child relationship (like that here). London v. London, 192

S.W.3d 6, 19 (Tex. App.—Houston [14th Dist.] 2005, pet. denied); TEX. FAM. CODE ANN.

§ 106.002(a)(1) (West 2014) (stating that in a suit under title 5, “the court may render 

judgment for reasonable attorney's fees and expenses and order the judgment and 

post-judgment interest to be paid directly to an attorney”). And, though the decision to 

award fees to a prevailing party under that statute is discretionary, In the Interest of 

Pecht, 874 S.W.2d 797, 803 (Tex. App—Texarkana 1994, no writ), fees may also be 

awarded an unsuccessful party, depending upon the circumstances. See London v. 

 

2 What the “other matter” means was not defined. Nor do we have before us a written order 

signed by the trial court purporting to explain what was meant.
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London, 192 S.W.3d at 19 (stating that “[a]ttorney's fees rendered in the prosecution or 

defense of a suit affecting the parent-child relationship may be awarded as necessaries 

to the child, even where the fees are incurred by the unsuccessful party” if warranted by 

good cause); accord Nichol v. Nichol, No. 07-12-00035-CV, 2014 Tex. App. LEXIS 492, 

at *13-14 (Tex. App.—Amarillo 2014, no pet.) (stating that attorney’s fees cannot be 

awarded an unsuccessful party absent good cause). So, to the extent that Epps 

suggests that the trial court abused its discretion because it may not award appellate 

fees irrespective of whether Jimenez prevailed, he is mistaken. More importantly, he 

says nothing about why good cause would not support the assessment here.

Finally, by our rejection of his contentions regarding jurisdiction and standing, 

Jimenez prevailed in this mandamus. Assuming arguendo that the trial court’s award of 

fees if Epps appealed those decisions encompassed review via a writ of mandamus, we 

cannot conclude that the trial court abused its discretion. Again, it may award 

reasonable fees to a prevailing party. 

Accordingly, we deny Epps’ petition for writ of mandamus.

Brian Quinn

Chief Justice