NO. 07-03-0124-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL B JANUARY 22, 2004

______________________________ IN THE IN TEREST OF A.N., J .A.N., E.E .N., and F .A.N.

_________________________________ FROM THE 237 TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2001-515,625; HON. JOHN T. FORBIS, PRESIDING

_______________________________

Opinion

_______________________________ Before JOHNSON, C.J. and QUINN and CAMPBELL, JJ. Joe A. Narvais and SusannaNarvais , the bio logical parentsof A.N., J .A.N., E.E .N., and F.A.N. (referred to as the children), appeal to this court from an order terminating their parental relationship with the mentioned children. In one issue, they contend that they were denied due process. This allegedly occurred when the district court adopted the findings of the associate judge without affording either parent opportunity to contest them through appeal. We dismiss the appeal for want of jurisdictio n. Background The Texas Department of Protective and Regulatory Services (Departme nt) ini tiated suitto terminate the parental rights of Joe and Susanna. The matter was referred to an associate judge by the di str ict court. The latter convened a trial without a jury, received2

evidence, and executed a document entitled “Order of Termination.” Therein, it found and recommended thatit would be in the best interests of the children to end the parent/child relationship between them and t heir biological parents. The order and recommendation
was signed by the as sociatejudge on February 7, 2003. Later that same day, the referring court, allegedly through in ducement b y the Department, signed an order adopting the associate judge’s report. The referring court’s order adopting the report stated: [t]he above and foregoing orders [ of the associate judge] having been presented to this Court, and no demand for hearing having been made in the time and mann er permit ted by law, it is ORDERED that said orders be and are hereb y adopted as the or ders of th is Court. On February

10, 2003 , Joe fil ed a “Not ice of Ap peal from A ssoc iate Judge’s Hearing. ” Among other things, he alleged in the notice that he objected to the ruling of the associate judge and the conclusion that clear and con vincing evidence s upported termination of his parental rights. This Fe brua ry 10 th notice of appeal was followed by another filed on March 6, 2003. Thr ough it, Joe again sought to appeal “from [the] Associate Judge’s

finding s and con clusion s . . . .” However, he was not alone in do ing that. On February

12, 2003 , Susanna als o filed anotice of appeal , therein objectin g to various fin dings of the associate judge. This notice was followed by another filed o n February 27, 2003. In the l att er, she evinced her desire to appeal “from the judgment signed o n Februa ry 7[] 200 3" to thi s court of appeals

. Whatfollowe d next u nderlies the hear t of the issue before us. Within 30 days of the date the district court adopted and finalized the associate judge’s reco mmendati on, Joe moved for

a new trial. Though the grounds stated in the motio n were so mewhat un clear, he apparently believed himself entitled to relief b ecause the decision of the associate judge1 Sta tute afford s a p arty the right to “app eal a n as soc iate judge’ s repor t by fi li ng noti ce of ap peal not lat er than t he thi rd day aft er t he date t he part y rece ives noti ce of t he sub sta nc e o f the ass oc iate judg e’s report

. . . . ” T EX
. F AM
. C ODE A NN . §201.0 15(a) (V ernon 2002 ). 3 was not suppo rted by clear and convincing evidence and the associate judge erred in admitting evidence of a cri minal co nviction that wassubject to an ong oing app eal. Byorder signed on April 8, 2003, the trial court granted Joe an d Susanna a new trial “on all issues.”Thereaf ter, a non-jury trial was convened which resulted in the execution of another “Order of Termination” signed on April 11, 2003 . Throug h it, the dist rict court ordere d th at the parental relationship between Joe, Susanna, a nd the children be terminate d. No on e filed s eparate n otices of appeal from that o rder. Issue – Deprivation of Due Process A s previously mentioned, Joe and Susanna assert that they were denied d u e process becau se they w ere not afforded opportunity to contest the associate judge’s recommendation and findings. Furthermore, they purportedlywere den ied that opportun ity because the district judge adopted the recommendation and findings before ex piration of the statutoryperiod in which they had to contes t them. 1 That the district court eventually granted them a new trial a llegedl y did no t amelior ate the wron g since i ts plena ryjurisdiction to afford them that relief had expired. And, therein li es t he pivotal issue at bar. Did the trial court’s plenary jurisdiction over the termination proceedin g expir e bef ore itgranted a new trial? Joe and Susan na say it did since an appeal from an order te rminat ing the parent/child relationship is an accelerated o ne, and because it is accelerated, the time within which the trial co urtmay exercise its plenary jurisdiction is shortened . Of cours e, the De partment d isagrees

.2 A mo tion for n ew trial is time ly if filed no la ter tha n 30 day s from the d ate th e jud gm ent o r order

com plaine d of is s igne d. T EX
. R. C IV
. P. 329 b(a).

3 Th is is no t t rue i n accel erat ed appea ls f rom a qu o warranto proceedi ng, however. I n such cases, motions for

new tri al ar e overr uled byoperat ion of law 5 0 da ys afte r the jud gm ent is s igne d. T EX
. R. A PP
. P. 28.2. Ordinar il y, a motion f or new t ri al i s not ov erru led byoperat ion of law u ntil 75 d ays has lapse d. T EX
. R. C IV
. P. 329b(c) . So, because t he peri od wit hin whi ch the c ourtmust actto avoi d a moti on for new tri al f rom being ov erru led byoperat ion of law i s short er i n an appeal fr om a quo warr anto proceeding , t he durat ion of the trial c ourt’s p lena ry po we r in suc h ca ses is redu ced som ew hat. 4 To res olve the question, we look to Rule 32 9b(e) of the Texas Rules of Civil Procedur

e and the opinion in Boris v. Boris , 642 S.W.2d 855 (Tex. App.--Fort Worth 1982,
no writ). The former states that if a motion for new trial is timely filed “by any party,” then the trial court “has plenary power to grant a new tri al or to vacate, mod ify, corre ct, or refo rm the judgment until thi rty days a fter all s uch timel y-fi le d motions are overruled, either by a written and signed order or by operation of law, w hichever occu rs fir st.” 2 T EX
. R. C IV
. P. 329b(e). More importantly, this plenary power exists “regardless of whether an appeal has been perfected ”, id. , even on e that isaccelera ted. See Boris v. Boris , 642 S.W.2d 855, 856 (Tex. App.--Fort Worth 1982, no writ) (involving an accelerated appeal and holding that the appellate court had no jurisdiction over the cause since the motion for new trial extended the duration of the trial court’s plenary jurisdiction an d the cou rt granted the motion within the extended period). So, initiating an a ccelerated appeal does not reduce the duration of the trial court’s plenary jurisdiction. 3 Next, to the extent Joe and Susanna suggest that no one timel y filed a motion for
newtrial from the district judge’s F ebruary 7th order, we would disagree. Joe moved for
a new trial on March 7, 2003, or approximately 28 days after the order was signed. Again, the rules of civil proc edure gra nt a party 30 days to move fo r a new tr ial. T EX
. R. C IV
. P. 329b(a ). Consequently, the filing was timely. An d though Joe alluded to the deci sion o f4 Had the t ri al court de nied the m otion befo re it would have b een overr uled byoperat ion of law, then the dura tion of th e trial co urt’s ple nary pow er w ould hav e sh runk prop ortion ally. See T EX
. R. C IV
. P. 329b(e) (st ati ng that

the t ri al cour

t r etai ns it s plena ry power to gr ant a new tr ial for 30 days f rom the dat e a moti on for new trial is ove rruled by ord er or o pera tion of la w). 5 the associate judge in it, we nonethel ess hold the motion sufficient to extend the district court’s plenary

power. This is so because, for all intents and purposes, the decision of the associate judge was that of the district judge. The latter, as previously illustrated, neither held a hearing nor re ceived o ther evid ence once the ass ociate ju dge madeits recommendations. Rather, the district court adopted the order of the associate judge on the day it was issue d. So, to attack th e admissi bility a nd quant um of t he evid ence underlying the district court’s decision, Joe of necessity had to a ttack the evidence presented to the associate judge, and that is what he di d in his motion for new trial. Simply put, in attacking the associate judge’s decision vi a his request for a new trial, Joe was also attacking that of th e distric t judge. Finally, bytimely moving for a new trial, Joe vested the trial court with plenary power to grantsuch relief for at least 105 days from February 7th. 4 See L.M. Healthcare, Inc. v. Childs , 929 S.W.2d 442, 444 (Tex. 1996) (stating that the trial court’s plenary jurisdiction cannot ex tend beyond 105 days after the trial court signs the judgment). Th e reco r d illustrates that a new tri al was granted on April 8, 2003, well within the 105-day period. And, because Joe and Susanna received a new trial on all issues, we cannot saythey wer e ha rme d by the initial failure to accord them opportunity to a ttack the associate judge’s report an d recommen dation.5 An order grant ing new tr ial depri ves an appel lat e court of j uri sdict ion ove r the a ppe al. Bo ris v. Bo ris , 642 S.W .2d 8 55, 8 56 (T ex. A pp.--F ort W orth 1 982 , no w rit). 6 Accordingly, we overrule the sole issue before us and dismiss the appeal for want of jurisdiction. 5

Brian Quinn Justice