COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-14-00265-CV

IN THE INTEREST OF D.A., A 

CHILD

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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

TRIAL COURT NO. 323-100117-14

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DISSENTING MEMORANDUM OPINION1

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I respectfully dissent from the majority opinion’s conclusion that the trial 

court erred by dismissing Grandmother’s suit for lack of standing. In this case, 

standing is conferred by statute; thus, we must analyze whether the petition was 

filed by a proper party under the statutory framework. See In re J.C., 399 S.W.3d 

235, 238 (Tex. App.—San Antonio 2012, no pet.). “The party seeking relief must 

allege and establish standing within the parameters of the statutory language.” 

Id. (emphases added).

 

1See Tex. R. App. P. 47.4.
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Grandmother alleged in her petition, in a section entitled “Residence 

Requirement,” that “[t]he child will have lived in the home of [Grandmother] for at 

least six (6) months when this cause is heard.” As statutorily required, she 

attached an affidavit to her petition in which she detailed where D.A. had lived 

since 2006. See Tex. Fam. Code Ann. § 152.209(a) (West 2014). After the 

Department filed its motion to dismiss Grandmother’s petition based on a lack of 

standing, Grandmother did not respond and failed to appear for the hearing 

although she had actual notice of the motion and the hearing. The Department 

noted that Grandmother did not “state under what provision she is asserting 

standing.” But the Department then argued that although Grandmother had not 

alleged standing under section 102.005, she could not meet that statutory 

standard. See id. § 102.005 (West 2014). In her motion for new trial, 

Grandmother again did not allege section 102.005 other than to state in a 

conclusory manner that she had “established a substantial past contact with 

child.” She then specified, however, that she based her standing on the fact that 

she had care, control, and possession of D.A. for at least six months, which had 

ended less than ninety days before she filed her petition. See id. § 102.003(a)(9) 

(West 2014).

I would hold that Grandmother failed to sufficiently allege and establish 

standing. As the person asserting standing, Grandmother had the burden to 

allege and prove the applicable statute conferring standing. See In re S.M.D., 

329 S.W.3d 8, 12–13 (Tex. App.—San Antonio 2010, pet. dism’d). This she did 
3

not do. I do not believe that Grandmother’s factually incorrect allegation in her 

petition that D.A. had lived with her for six months (which she stated in support of 

a “residence requirement”), her affidavit that was attached as required by a 

section of the family code that has no application to standing, or her specific 

reference to section 102.003(a)(9) in her motion for new trial were sufficient to 

establish standing under either section 102.003(a)(9) or section 102.005. We 

cannot apply a different standard to Grandmother merely because she is 

proceeding pro se. See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 

(Tex. 1978); In re J.P., 365 S.W.3d 833, 837 (Tex. App.—Dallas 2012, no pet.); 

Stein v. Lewisville Indep. Sch. Dist., 481 S.W.2d 436, 439 (Tex. Civ. App.—Fort 

Worth 1972, writ ref’d n.r.e.), appeal dism’d & cert. denied, 414 U.S. 948 (1973). 

An attorney’s wholesale failure to address standing until raised in a motion for 

new trial after a jurisdictional dismissal, failure to specify which statute conferred 

standing, or the citation of an inapplicable standing statute would certainly be 

deemed insufficient to sustain the burden of pleading and proof on standing. 

Accordingly, the trial court correctly concluded that Grandmother failed to allege 

or establish standing and, therefore, correctly dismissed Grandmother’s petition. 

See In re C.M.C., 192 S.W.3d 866, 870 (Tex. App.—Texarkana 2006, no pet.).

/s/ Lee Gabriel

LEE GABRIEL

JUSTICE

DELIVERED: February 5, 2015