Supreme Court of Texas

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No. 22-0420

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In the Interest of J.S., a Child

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On Petition for Review from the

Court of Appeals for the Fifth District of Texas

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JUSTICE BOYD, concurring.

When the Texas Department of Family and Protective Services 

files suit to terminate a parent-child relationship or to be named as a 

child’s managing conservator, the trial court may enter a temporary 

order appointing the Department to serve as the child’s managing 

conservator until the suit is tried and a final judgment is entered. See

TEX. FAM. CODE § 105.001(a)(1). To ensure the court promptly resolves 

the suit, Section 263.401(a) provides that, on the first Monday that 

occurs one year after the court enters the temporary order, “the court’s 

jurisdiction over the suit . . . is terminated and the suit is automatically 

dismissed without a court order.” Id. § 263.401(a). But Subsection (a) 

provides an exception: the court’s jurisdiction does not terminate on that 

deadline and the suit is not automatically dismissed if the court has 

(1) “commenced the trial on the merits” by the deadline or (2) “granted 

an extension under Subsection (b) or (b-1).” Id. 
2

Subsection (b),1 however, never mentions “grant[ing] an 

extension.” See id. § 263.401(b). Instead, it provides that the trial court 

may “retain the suit on the court’s docket,” but only “for a period not to 

exceed 180 days after the time described by Subsection (a).” Id.

Necessarily, then, Subsection (a)’s reference to “grant[ing] an extension 

under Subsection (b)” means “retain[ing] the suit on the court’s docket.”

To “retain the suit on the court’s docket” (that is, to “grant[] an 

extension under Subsection (b)”), the trial court must find that 

(1) “extraordinary circumstances necessitate the child remaining” in the 

Department’s temporary managing conservatorship and (2) continuing 

the Department’s appointment as temporary managing conservator is 

in the child’s “best interest.” Id. If the court makes those findings, it may 

“retain the suit on [its] docket” even if it has not commenced the trial 

within one year. Id. If it fails to either timely commence the trial or make 

these required findings, “it may not retain the suit on the court’s docket.” 

Id.

The Court holds in this case that (1) the Family Code requires 

trial courts to “expressly” announce the two required findings, either in 

a written order or orally on the record, but (2) a trial court’s failure to 

expressly announce the required findings does not terminate the trial 

court’s jurisdiction, so a parent may waive an objection to the lack of 

findings by failing to timely assert that objection. See ante at ___. As to 

1 Subsection (b-1) authorizes a court that timely commenced trial to 

extend the deadline and retain the case on its docket if it grants a new trial or 

mistrial or receives the case again on remand after an appeal from its final 

judgment. TEX. FAM. CODE § 263.401(b-1). Because the court here did not 

timely commence the trial, this subsection does not apply.
3

both points, I read the Family Code to provide the opposite: (1) a trial 

court’s jurisdiction necessarily terminates if it fails to timely make the 

required findings because the court cannot “grant[] an extension under 

Subsection (b)” unless it makes the required findings, but (2) the Code 

does not require express findings, so the findings may be implied by the 

record and a trial court’s order. Here, the trial court expressly made the 

best-interest finding orally on the record in open court. Based on the 

record and the trial court’s order, I would conclude the court also 

impliedly made the extraordinary-circumstances finding. Like the 

Court, I would reverse and remand this case for the court of appeals to 

address Mother’s other appellate issues, but I would do so for the 

opposite reasons. I therefore concur in the Court’s judgment, but 

respectfully cannot join its opinion.

I. 

Jurisdiction

Subsection (a) of Section 263.401 states that a trial court’s 

“jurisdiction over the suit . . . is terminated” unless the court has timely 

“commenced the trial on the merits or granted an extension under 

Subsection (b).” TEX. FAM. CODE § 263.401(a) (emphasis added). 

Subsection (b), in turn, provides that unless the court has commenced 

the trial or made the required extraordinary-circumstances and 

best-interest findings, the court “may not retain the suit on the court’s 

docket.” Id. § 263.401(b). So to “grant[] an extension under Subsection 

(b),” as Subsection (a) requires, the court must “retain the suit” on its 

docket under Subsection (b). And to do that, the court must make the 

required findings.
4

The Court reads these two provisions separately. The Court 

agrees that, under Subsection (a), a trial court loses jurisdiction if it fails 

to timely commence the trial or “grant[] an extension under Subsection 

(b).” Ante at ___. But, according to the Court, if the trial court grants an 

extension without making the findings required to retain the suit on its 

docket, its jurisdiction is not terminated. Id. at ___. But a court that 

grants an extension without making the required findings has not 

“granted an extension under Subsection (b).” And so, under Subsection 

(a), its jurisdiction terminates, and the suit is automatically dismissed. 

Subsections (a) and (b) expressly require us to read them 

together. By terminating the court’s jurisdiction unless it has timely 

commenced trial or “granted an extension under Subsection (b),” 

Subsection (a) expressly refers to and incorporates Subsection (b)’s 

requirements for granting an extension. See TEX. FAM. CODE

§ 263.401(a) (emphasis added). This was our exact holding just two 

terms ago: Subsection (b) “sets forth the circumstances in which the 

automatic dismissal date—and thus the trial court’s jurisdiction over the 

suit—may be extended.” In re G.X.H., 627 S.W.3d 288, 296 (Tex. 2021) 

(emphasis added). And under Subsection (b), the court cannot extend 

the dismissal date and retain the suit on its docket “after the time 

described by Subsection (a),” unless it makes the two required findings. 

See TEX. FAM. CODE § 263.401(b). Reading Subsections (a) and (b) 

together, as their plain language requires, the court loses jurisdiction if 

it fails to grant an extension, and the only way it can grant an extension 

is by making the required findings. The findings, in other words, are a 

“prerequisite for granting an extension of the dismissal date” under 
5

Subsection (a). G.X.H., 627 S.W.3d at 297. So, if the court fails to make 

the required findings, it cannot have granted an extension “under 

Subsection (b),” as Subsection (a) requires, and it thus loses jurisdiction 

and cannot retain the suit on its docket. 

Under the Court’s construction, Subsection (b)’s declaration that 

the court “may not retain the suit on the court’s docket” must mean 

something different than Subsection (a)’s declaration that the court’s

“jurisdiction over the suit . . . is terminated and the suit is automatically 

dismissed without an order.” See ante at ___. According to the Court, a 

trial court that fails to timely commence trial loses jurisdiction if it also 

fails to “grant[] an extension under Subsection (b),” but it does not lose 

jurisdiction if it grants an extension without making the findings 

Subsection (b) requires (even though the court cannot “grant[] an 

extension under Subsection (b)” unless it makes the findings). See id. at 

___. Instead, the Court asserts, a trial court that grants an extension 

without making the findings Subsection (b) requires has nevertheless 

“granted an extension under Subsection (b)” and thus retains 

jurisdiction; but still, it “may not retain the suit” on its docket, whatever 

that means. See id. at ___. 

I agree that, as a general rule, we must presume that different 

statutory phrases carry different meanings. See In re D.S., 602 S.W.3d 

504, 514 (Tex. 2020). But that presumption cannot prevail when one of 

the phrases can only mean the same as the other. Here, the statute 

provides that a trial court’s failure to make the required findings has 

two effects: (1) under Subsection (b), the court cannot retain the case on 

its docket, and (2) under Subsection (a), the court cannot grant an 
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extension that preserves its jurisdiction. See TEX. FAM. CODE

§ 263.401(a), (b). Read together, “cannot retain the suit on its docket” 

can only mean “loses jurisdiction,” and the case is automatically 

dismissed. 

In fact, Section 263.403 supports this reading by providing that if 

the court enters an order that temporarily returns the child to the 

parent, then “[n]otwithstanding Section 263.401, the court may retain 

jurisdiction and not dismiss the suit.” Id. § 263.403(a). Section 263.403 

confirms that Section 263.401 uses the phrases “jurisdiction over the 

suit . . . is terminated,” “the suit is automatically dismissed,” and “the 

court may not retain the suit on the court’s docket” interchangeably to 

describe that the court no longer has the power to hear the case.

The Court contends that we recently held otherwise in G.X.H.

Ante at ___. But we did not. We held in G.X.H. that, “while a trial court’s 

failure to timely extend the automatic dismissal date before that date 

passes—through a docket-sheet notation or otherwise—is jurisdictional, 

claimed defects relating to the other requirements of [Section] 263.401(b)

are not.” 627 S.W.3d at 301 (emphasis added). But the “other 

requirements of [Section] 263.401(b)” to which we referred in that 

holding were “other” requirements that apply after a court makes the 

required findings and retains the suit on its docket, not the required 

findings themselves.

The parents in G.X.H. argued, first, that the trial court did not 

extend the dismissal date under Subsection (b) and thus lost jurisdiction 

under Subsection (a) because the court did not enter an order and 

instead, after conducting an oral hearing in open court, noted on its 
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docket sheet that it was granting an extension and continuance. Id. at 

298. In response to that argument, we held that the docket-sheet entry 

sufficiently granted the extension and, because the parties failed to 

provide the record of the oral hearing, we presumed that “the trial court 

made the necessary findings to support the extension orally on the 

record at the hearing.” Id. at 299. 

We then turned to the parents’ separate argument that “the 

extension was invalid because the trial court” failed to satisfy 

Subsection (b)’s “other requirements”; that is, it “failed to enter an order 

setting a new dismissal date and trial date before the initial dismissal 

date passed.” Id. at 300–01. In support of this argument, the parents 

relied not on Subsection (b)’s first sentence, which requires the findings

as “a prerequisite for granting an extension of the dismissal date” under 

Subsection (a), nor on its second sentence, which “limits the length of 

the extension to 180 days,” but on its third sentence, which “directs the 

trial court that has [made the required findings and] granted an 

extension to render an order that does three things: schedules the new 

dismissal date, makes further temporary orders as necessary for the 

children's safety and welfare, and sets the trial date.” Id. at 297 

(describing TEX. FAM. CODE § 263.401(b)). Referring only to the third 

sentence’s requirements—which apply only after the court has made the 

required findings and granted an extension and thus retained the case 

on its docket and its jurisdiction over the case—we explained that 

“claimed defects relating to the other requirements of [Section] 

263.401(b) are not” jurisdictional. Id. at 301.
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G.X.H. thus confirms that a trial court loses jurisdiction if it fails 

to timely extend the dismissal date, and that the court must make the 

extraordinary-circumstances and best-interest findings to extend the 

dismissal date. Once the court has made the findings and thus “granted 

an extension under Subsection (b),” its jurisdiction does not terminate, 

the suit is not automatically dismissed, and the court may retain the 

suit on its docket. At that point, Subsection (b)’s third sentence requires 

the court to enter an order that schedules a new dismissal date, makes 

further temporary orders as necessary for the children’s safety and 

welfare, and sets a trial date. See TEX. FAM. CODE § 263.401(b). But its 

failure to meet those requirements does not terminate the court’s 

jurisdiction because those requirements are not necessary to “grant[] an 

extension under Subsection (b).” The court’s failure to make the findings 

required to extend the dismissal date, however, does.

Before today, the Court has never held that the findings 

Subsection (b) requires to extend the dismissal date under Subsection 

(a) are not jurisdictional. But we have confirmed in G.X.H. that “a trial 

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

date passes . . . is jurisdictional.” G.X.H., 627 S.W.3d at 301. And under 

Subsection (a), the court cannot extend the dismissal date by “grant[ing] 

an extension under Subsection (b)” unless it makes the findings 

Subsection (b) requires. See TEX. FAM. CODE § 263.401(a). Because a 

court’s jurisdiction terminates if it fails to extend the dismissal date 

“under Subsection (b),” and it cannot extend the dismissal date under 

Subsection (b) unless it makes the required findings, a court that grants 
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an extension without making the required findings loses jurisdiction 

and cannot retain the suit on its docket.

II.

Implied Findings

Because a trial court’s jurisdiction terminates if it fails to 

commence the trial before the dismissal date or grant an extension 

under Subsection (b), a party may challenge any order entered after that 

date as void, even if the party did not preserve that objection. In this 

case, the trial court orally announced a finding that extending the 

dismissal date and keeping the Department as temporary managing 

conservator was “in the child’s best interest,” and it ordered that the 

dismissal date be extended, but it did not expressly announce the finding 

that “extraordinary circumstances necessitate the child remain[]” in the 

Department’s temporary managing conservatorship. This raises the 

issue of whether Section 263.401 requires a trial court to expressly 

announce the required findings, either in a written order or orally on the 

record, or whether we may infer that it made the finding in light of the 

record and the court’s order extending the dismissal date.

The Court holds that Section 263.401(b) requires trial courts to 

expressly announce the required findings, even though nothing in that 

subsection’s language imposes that requirement. See ante at ___. In the 

Court’s view, the failure to expressly announce the findings necessarily 

equates to a failure to “make” the findings. I disagree. Although I do 

agree that, as we advised in G.X.H., courts should expressly announce 

their findings in a written order to avoid any risk of confusion or 

misunderstanding, 627 S.W.3d at 299, I cannot agree that Subsection 

(b) requires them to do so. In holding otherwise, the Court relies on our 
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precedent and on the subsection’s “amendment history.” See ante at ___. 

I do not agree that either supports the Court’s conclusion.

As to our precedent, the Court first relies on our statement that, 

“for the suit to remain on the court’s docket beyond the one-year 

dismissal date,” the court “cannot just enter an extension order” but 

instead “must make specific findings to support the extension order.” Id.

at ___ (quoting In re Dep’t of Fam. & Protective Servs., 273 S.W.3d 637, 

643 (Tex. 2009) [hereinafter In re DFPS]). I completely agree with that 

statement. Section 263.401 expressly requires trial courts to make two 

specific findings as a prerequisite to granting an extension. See TEX.

FAM. CODE § 263.401(b). But Section 263.401 does not require the trial 

court to expressly announce those findings, and we did not hold or 

suggest in In re DFPS that it does. Indeed, that case did not present that 

issue, or anything related to it. Instead, it involved a suit in which the 

trial court timely commenced the trial but then granted a new trial after 

the one-year deadline without ever making any findings or granting an 

extension. See In re DFPS, 273 S.W.3d at 640.

Next, the Court relies again on G.X.H., suggesting that we held 

there that, “to avoid error, the findings must be ‘made orally on the 

record or in some other writing.’” Ante at ___ (quoting G.X.H., 627 

S.W.3d at 299). Actually, what we held was that a trial court’s failure to 

“make the findings in a written order . . . is not error, provided the 

findings are made orally on the record or in some other writing.” G.X.H., 

627 S.W.3d at 299 (emphasis added). We announced this holding 

because the trial court there did not announce its finding in a written 

order, and the parties failed to provide a transcript of the oral hearing. 
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See id. Relying on our well-established rule that all findings necessary 

to support a judgment “are implied” when express findings are neither 

issued nor requested, we presumed that “the trial court made the 

necessary findings to support the extension orally on the record at the 

hearing.” Id. (first citing Shields Ltd. P’ship v. Bradberry, 526 S.W.3d 

471, 480 (Tex. 2017) (“When neither party requests findings of facts and 

conclusions of law following a nonjury trial, all fact findings necessary 

to support the trial court’s judgment are implied.” (emphasis 

added)); and then citing BMC Software Belg., N.V. v. Marchand, 83 

S.W.3d 789, 795 (Tex. 2002) (“When a trial court does not issue findings 

of fact and conclusions of law with its special appearance ruling, all facts 

necessary to support the judgment and supported by the evidence are 

implied.” (emphasis added))). 

In light of the limited issue G.X.H. presented, we held that it 

would not be error for the trial court to fail to expressly announce the 

findings in a written order if the court expressly announces the findings 

orally on the record. But we did not address whether—much less hold 

that—it would be error for the trial court to fail to expressly announce 

the findings at all, because G.X.H. did not present that issue. Instead, 

we relied on our well-established rule requiring that necessary findings 

be implied when express findings are neither issued nor requested.2 If 

2 The Court suggests that a trial court cannot impliedly make the 

required findings because “[o]ur decisions addressing implied findings have 

typically involved implied findings of fact and conclusions of law to support a 

judgment, not a procedural case-processing requirement like the one at issue 

here.” Ante at ___ (footnote omitted) (citing Shields, 526 S.W.3d at 480). But as 

the above quotations from Shields and BMC Software demonstrate, we 

expressly relied in G.X.H. on those exact decisions, reasoning that because 
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that well-established rule supports G.X.H.’s holding that we can 

presume that the trial court “made” the findings when the record is 

missing, it certainly supports the conclusion that an available record can 

establish that the findings were implied.

Next, the Court relies on the fact that the legislature has 

amended Section 263.401 several times throughout the years, first to 

add a requirement that the trial court “find[] that” continuing the 

Department’s temporary conservatorship is in the child’s best interest, 

then to add a requirement that the court find that extraordinary 

circumstances necessitate that decision, then to require that the court 

“make” those findings to retain the case on its docket, and later to 

require the court to “consider” certain facts when making the findings. 

Ante at ___. No doubt, the legislature has repeatedly and increasingly 

stressed that trial courts must thoughtfully “make” the required 

findings as a prerequisite to granting an extension, but through all of 

those amendments it has never once addressed how courts must make 

them. Although the legislature is deemed to be aware of our 

well-established rule that necessary findings are implied when express 

findings are neither issued nor requested, it has never amended the 

such findings can be implied, they can also be presumed when the record is 

missing. The Court also suggests that if trial courts could impliedly make the 

findings, we would have had no need to presume that the trial court made the 

findings in G.X.H. and instead “we would have reviewed the entire record of 

the case ourselves to confirm whether” the trial court implied made the 

findings. Id. at ___. But we had no record to review in G.X.H. The reason we 

had to presume that the trial court made the findings in that case was because 

we had no record to confirm the findings were expressed or implied.
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statute to require that trial courts expressly announce the required 

findings.

In that regard, the Court’s suggestion that the statute’s use of the 

word “make” somehow requires courts to expressly announce the 

findings is likewise unavailing. Relying on select definitions from 

Black’s Law Dictionary, the Court suggests that the word “make”—

which the statute does not define—necessarily requires “affirmative and 

observable actions by the ‘maker.’” Id. at ___ & n.3. Setting aside 

whether the term’s “legal” definition actually supports that assertion, 

we must construe undefined words in a statute by applying their 

common, ordinary meaning, not a limited or obscure legal definition, so 

that ordinary citizens can rely on the statute’s language to mean what 

it plainly says. See PHI, Inc. v. Tex. Juv. Just. Dep’t, 593 S.W.3d 296, 

303 (Tex. 2019); Tex. State Bd. of Exam’rs of Marriage & Fam. 

Therapists v. Tex. Med. Ass’n, 511 S.W.3d 28, 34–35 (Tex. 2017). The 

common, ordinary meaning of “make,” of course, includes “to frame or 

formulate in the mind” and “to form and hold in the mind.” Make, 

MERRIAM WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2003).

The Court suggests that the statutory context requires us to give 

“make” a technical legal meaning because the term governs judges’ 

actions, and judges understand legal meanings. Ante at ___ & n.3. But 

if that were true, no statute would ever need to expressly require judges 

to make findings in a written order or on the record, yet numerous 

Family Code provisions do just that. These include, for example:

• “If the court makes an affirmative finding under Subsection 

(a), the court shall issue a protective order that includes a 

statement of that finding.” TEX. FAM. CODE § 261.504(b). 
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• “If the court finds that visitation between a child and a parent 

is not in the child’s best interest, the court shall render an 

order that: (1) states the reasons for finding that visitation is 

not in the child’s best interest . . . .” Id. § 263.109(b)(1).

• “Notwithstanding Section 263.401, the court may retain 

jurisdiction and not dismiss the suit or render a final a final 

order as required by that section if the court renders a 

temporary order that: (1) finds that retaining jurisdiction

under this section is in the best interest of the child.” Id.

§ 263.403(a)(1).

• “If a court finds that a health care professional has been 

consulted regarding a health care service, procedure, or 

treatment for a child in the conservatorship of the department 

and the court declines to follow the recommendation of the 

health care professional, the court shall make findings in the 

record supporting the court’s order.” Id. § 266.005.

These provisions demonstrate that the legislature knows how to 

require express findings in a written order or in the record when it 

intends to impose that requirement. Yet despite the repeated 

amendments the Court so meticulously describes, the legislature has 

never amended Section 263.401 to impose such a requirement. In my 

view, this silence necessarily speaks volumes. See Lippincott v. 

Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015) (“We presume the 

Legislature included each word in the statute for a purpose and that 

words not included were purposefully omitted.”). For these reasons, I 

conclude that although Section 263.401(b) requires a trial court to make 

the extraordinary-circumstances and best-interest findings as a 

prerequisite to granting an extension and retaining its jurisdiction, it 
15

does not require that the court expressly announce those findings in a 

written order or orally on the record. 

I also conclude that the record in this case establishes that the 

trial court impliedly made the extraordinary-circumstances finding. The 

parents made an eleventh-hour request for a jury trial, the child’s 

attorney ad litem was absent when the case was called, and logistical 

issues related to the COVID-19 pandemic complicated the court’s ability 

to timely commence the trial. Considering these obstacles to a timely 

trial, the Department asked the trial court to find that extending the 

deadline, retaining the case on the court’s docket, and keeping the 

Department as managing conservator would be in the child’s best 

interest. As the Court concedes, the Department was indisputably 

“requesting an extension under Section 263.401.” Ante at ___. After 

neither parent objected, the trial court orally made that requested 

finding and extended the dismissal date. And all parties confirmed—

twice—that there was not “anything else” they wanted to bring to the 

court’s attention. Under these facts and our well-established rule 

requiring implication of findings necessary to support a ruling, I 

conclude that the trial court implicitly but necessarily found that 

extraordinary circumstances required that the child remain in the 

Department’s temporary managing conservatorship.

III.

Conclusion

Under the Family Code’s plain language, a trial court’s 

jurisdiction terminates if it fails to timely make the findings required to 

extend the automatic dismissal date, but the trial court need not 

expressly announce those findings. Here, the trial court impliedly made 
16

the extraordinary-circumstances finding, so I agree with the Court that 

the court of appeals’ judgment should be reversed, and the case should 

be remanded so the court of appeals can address Mother’s other 

appellate issues. But because I respectfully disagree with the Court’s 

reasoning, I join only in its judgment. 

Jeffrey S. Boyd

Justice

OPINION FILED: June 16, 2023