Opinion
No. 10-03-00202-CV
Opinion delivered and filed November 9, 2005.
Appeal fromthe 82nd District Court, Robertson County, Texas, Trial Court No. 11,993.
Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA (Chief Justice GRAY dissenting)
OPINION
The Attorney General appeals an order granting Appellee Ernest Smith's motion to set aside an order reducing unpaid child support to judgment.
BACKGROUND
On October 21, 1985, the judge of the 82nd District Court signed a "Dismissal Judgment" that dismissed cause number 11,993 for want of prosecution. On February 8, 2000, the court signed an Order Reducing Unpaid Child Support to Judgment. In May 2001, Smith filed a motion to set aside the 2000 unpaid child support judgment. After a hearing, the court granted the motion.
In its original brief, the Attorney General argued that the 20th District Court is the court of continuing, exclusive jurisdiction over this case because it issued in 1981 a legitimation decree declaring that Smith is the father of N.L.A and ordering Smith to pay child support. There is no order transferring the case from the 20th District Court to the 82nd District Court. Therefore, the Attorney General argued, the 82nd District Court lacked jurisdiction to act in this case. We requested additional briefing on the jurisdictional issue. See In the Interest of N.L.A., No. 10-03-00202-CV, (Tex.App.-Waco, June 8, 2005, order). In its supplemental brief, the Attorney General now argues that the 82nd District Court is the court of continuing, exclusive jurisdiction.
See Acts 1973, 63rd Leg., R.S. ch. 543, 1973 Tex. Gen. Laws 1411, amended by Acts 1975, 64th Leg., ch. 476, 1975 Tex. Gen. Laws 1254; Acts 1979, 66th Leg., ch. 584, 1979 Tex. Gen. Laws 1201; Acts 1979, 66th Leg., ch. 643, 1979 Tex. Gen. Laws 1471; Acts 1979, 66th Leg., ch. 763, 1979 Tex. Gen. Laws 1888. (Current version at TEX. FAM. CODE ANN. § 155.001(a) (Vernon 2002)).
In 1981, when the legitimation decree was issued, the 20th District was composed of Robertson and Milam Counties. However, in 1983, the two judicial districts were reorganized so that the 20th District is now composed solely of Milam County, and Robertson County became part of the 82nd District with Falls County. Under the 1983 reorganization, the 20th District Court's jurisdiction over Robertson County ceased. The Attorney General originally argued that the 20th District Court nonetheless had jurisdiction over this cause because it had continuing, exclusive jurisdiction under the Family Code.
20th and 82nd Judicial Districts — Reorganization, 68th Leg., R.S. ch. 468, 1983 Tex. Gen. Laws 2743.
However, the Attorney General now concedes that the 82nd became the court of continuing, exclusive jurisdiction with the 1983 reorganization. To implement state policy that "the administration of justice shall be prompt and efficient," the Government Code provides for the reapportionment of judicial districts "so that the district courts of various judicial districts have judicial burdens that are as nearly equal as possible." TEX. GOV'T CODE ANN. § 24.941 (Vernon 2004). Texas appellate courts have repeatedly sustained the exercise of this legislative authority even when a district court affected by the transfer of jurisdiction had previously acquired continuing, exclusive jurisdiction. See In the Interest of G.R.M., 45 S.W.3d 764 (Tex.App.-Forth Worth 2001, no pet.) (concluding that section 24.950 of the government code authorized a district court of continuing, exclusive jurisdiction to transfer causes on its own motion for purposes of docket equalization notwithstanding the otherwise exclusive transfer provisions in chapter 155 of the Family Code); Saums v. Synoground, 605 S.W.2d 373 (Tex.Civ.App.-El Paso 1980, no writ) (rejecting a challenge to the jurisdiction of the 318th Judicial District Court to enforce a child support order signed by the 142nd Judicial District Court because the Domestic Relations Court, created by the legislature, had acquired all domestic relations cases from the 142nd under statutory authority, and the 318th had, by statute, replaced the Domestic Relations Court and assumed jurisdiction of its cases); Ex parte West, 559 S.W.2d 674 (Tex.Civ.App.-Dallas 1977, orig. proceeding) (denying a writ challenging the authority of the 330th District Court to enforce by contempt an order of the domestic relations court because the act "by necessary implication, confers jurisdiction on the family district court to act upon all matters, including contempt matters, that were pending in the domestic relations court before the transfer"); Putty v. Faulkner, 214 S.W.2d 831 (Tex.Civ.App.-Texarkana 1948, no writ) (holding that the Fourth District Court of Rusk County could enforce the prior child support orders of the Special District Court of Rusk County after the latter was abolished by a legislative act that transferred all the replaced court's cases and gave the Fourth District Court jurisdiction over them). We agree with the Attorney General that the 82nd District Court acquired jurisdiction over cause number 11,993 with the 1983 reapportionment.
However, the Attorney General contends that the 1985 dismissal order could not have set aside the 1981 decree because the order came after the court's plenary power to change or vacate the decree had expired. The Attorney General argues that because plenary power over the arrearage judgment had expired, the judgment could not be set aside in any proceeding other than a bill of review. The Attorney General argues that the arrearage judgment entered in 2000 cannot be set aside on the basis of the 1985 dismissal order because that order is void. However, the Attorney General's assertion that the 1985 order set aside the 1981 legitimation decree is not supported by the record. The record before us shows that the 1981 legitimation decree was in cause number 11,994 in the 20th District Court. That cause is not before us. The first record of a judgment in cause number 11,993 was the 1985 order in which the 82nd District Court dismissed cause number 11,993 for want of prosecution. Once a case has been dismissed, no further action may be taken in that case. Gibson v. Gibson, 653 S.W.2d 646, 647 (Tex.App.-Waco 1983, no writ). When it is clear that the court rendering the judgment had no jurisdiction over the parties or subject matter, the judgment is void. State ex rel. Latty v. Owens, 907 S.W.2d 484, 485 (Tex. 1995). The district court did not have authority to act in cause number 11,993 in 2000; as a result, the 2000 order reducing unpaid child support to judgment is void. See Boyd v. Gillman, 447 S.W.2d 759, 762 (Tex.App.-Dallas 1969, writ ref'd n.r.e.). A void judgment is a nullity and its enforcement may be enjoined in a collateral proceeding. See Boyd, 447 S.W.2d at 762-63.
The Attorney General originally argued that the 2000 arrearage judgment was entered by the 20th District Court. Although the 2000 order shows the 20th District Court in the style, the notice of final judgment states that the cause was heard in the 82nd District Court and was filed in the 82nd District Court. Neither the 20th nor the 82nd would have had the authority to act on the dismissed case.
CONCLUSION
We overrule the Attorney General's issues and affirm the order granting Smith's motion to set aside the 2000 judgment.
DISSENTING OPINION
The majority opinion defies logical analysis. It has no beginning; it has no middle — just an end result. It explains nothing. It resolves nothing. And I dissent.
OVERVIEW OF ANALYSES
The review of this case that I have made has resulted in two possible determinative analyses of applicable law. It is unnecessary, at this juncture, for me to decide which is correct. Neither analysis yields the result reached by the majority.
The focus of one analysis may be overly technical for some. But that analysis focuses on the relatively new creature, when compared to common law generally, known as "continuing, exclusive jurisdiction" in suits involving the parent-child relationship. In short, the legislature and courts, in various situations presented such as when a new court is created, a court is eliminated, or territorial jurisdiction is realigned, have struggled with what court should have jurisdiction to decide new issues as they may arise in already existing suits affecting the parent-child relationship.
In the very limited record we have in this case, I find no legal impediment, certainly none raised by the Attorney General, that would prohibit the 20th District Court from continuing to have the jurisdiction necessary over the underlying suit regarding the child unless and until it is transferred to the 82nd District Court. Any argument about jurisdiction related to a territorial area is irrelevant because we are here concerned only with jurisdiction over the persons and their relationship. We can discuss what I believe amounts to a legislative change of venue another day. Thus, while the judge of the 20th District Court may not have been able to sit in Robertson County and render a judgment after the realignment in 1983, see TEX. CONST. ART. V, § 7, nothing would have defeated the jurisdiction acquired over the parties or prohibited the parties from being subject to the continuing, exclusive jurisdiction of the 20th District Court.
Smith did not file a brief in connection with this appeal.
There would be no prohibition to making the parties go one county west to Milam County, where the 20th District Court still had territorial/geographic jurisdiction to hear new matters in the case or possibly to have it transferred to the 82nd District Court. Further, the 2000 judgment was rendered by a court master. It is not clear from the record where the master was, geographically, when the 2000 judgment was rendered.
Under this analysis, the 20th District Court would not have lost continuing, exclusive jurisdiction of the case and the parties. The 20th District Court was apparently never asked to transfer the case to the 82nd District Court and based on the record before us, apparently never did. There is no indication in the record that it was transferred by an administrative judge. We know the Legislature did not transfer it. So I believe that the 20th District Court was the only court that could properly continue to exercise jurisdiction in this suit involving the parent-child relationship.
But if there is some, as yet unidentified, problem with that analysis, the alternate analysis, which is also due to the complexity of the same concept — continuing, exclusive jurisdiction — overlaid with the concept of a final judgment, yields the same result. This analysis will reveal that what the majority is authorizing is the ability to set aside the judgment rendered by a master, which was allowed to become final because it was not appealed to the district court. Most troubling is that this can be achieved by way of filing a motion over one year after rendition of the master's final judgment. Thus, in any case involving continuing, exclusive jurisdiction, the analysis used by the majority opens every master's order ever rendered, but not timely appealed, and every district court order not timely appealed to attack simply by filing a motion. If the majority's procedural device to attack otherwise final judgments is ultimately validated, it would be a "super motion" indeed.
The effect of the first use of a "super motion" in this case was to dismiss a judgment that, by all legal rules of which I am aware, was final. That earlier judgment, four years earlier, being set aside is the judgment determining that Smith is N.L.A.'s father, a paternity judgment which also ordered child support for N.L.A. The trial court presented this first "super motion" on its own, possibly not realizing that this was a case involving the parent-child relationship and continuing, exclusive jurisdiction. The second "super motion" used in this case was filed by Smith to set aside the reduction to judgment of unpaid child support. The "super motion" was filed more than a year after the 2000 judgment was rendered by a master. No appeal from the master's judgment was taken. The "super motions" as used in this case can go where no other procedural vehicle has ever gone before — to bust judgments not subject to direct attack by appeal or bill-of-review.
I will first discuss the flaw with the "super motion" validated by the majority, and then discuss the more technical interpretation of judicial district realignment. The result of either analysis is the same. The trial court could not set aside the 2000 judgment which reduced the unpaid child support to judgment.
PREAMBLE
A majority of this Court asked the Attorney General for additional briefing "on the issue of the effects of the respective jurisdictional holdings on cases pending in the 20th and 82nd District Courts on September 1, 1983." This was essentially opening the briefing up for a legislative hearing rather than a judicial review of a judgment. I dissented. In the Interest of N.L.A., 169 S.W.3d 318 (Tex.App.-Waco 2005) (Gray, C.J., dissent to order). On the supplemental briefing issue proposed by the majority, I did not believe the information gained would help in analyzing the issues necessary to resolve this appeal. I was right.
For most of this case, it appears we did not have a good address for Smith. I brought this to the attention of the majority. But the majority has refused to notify Smith at an alternate address of our request for briefing before proceeding with the disposition of this appeal. My review of the file indicates that this Court had never sent anything to Smith at the proper address except possibly the latest submission notice. The notice we sent when the case was first submitted in October of 2004 was returned to us by the post office. Further, the State started sending Smith's copies to a post office box. In the supplemental briefing order, the majority asked only the Attorney General for additional briefing. It appears Smith is not aware of the request for a brief, much less supplemental briefing. Under basic notions of due process, I thought we should make sure Smith was notified before we proceeded and at least give him the opportunity to participate in these proceedings. See U.S. CONST. amend. XIV.
The Attorney General had initially argued that the 82nd District Court did not have jurisdiction to set aside a judgment. In his supplemental brief, the Attorney General purports to concede that the 82nd District Court had jurisdiction. The majority accepts that concession without any convincing rational explanation or analysis. With all due respect, we should not blindly accept a concession, if any, made by the Attorney General regarding the trial court's jurisdiction.
A Little Background First
In 1980, the State, through what is now the Department of Protective and Regulatory Services, filed a Petition for Voluntary Legitimation of a Child in the 20th District Court in Robertson County, seeking to establish the paternity of N.L.A. The child lived in Robertson County, a county with two district courts, the 20th and the 82nd. Ernest Smith acknowledged paternity of the child, and the 20th District Court in 1981 rendered judgment that Smith was the father of N.L.A. and ordered Smith to pay $50 per month for child support, beginning March 31, 1981, until the child reached the age of 18. This was a final judgment which was not appealed.
In 1983, the legislature realigned the two district courts and placed Robertson County solely within the jurisdiction of the 82nd District Court. Unfortunately, the act that realigned the 20th and 82nd District Courts did not have any enabling language that provided for what happened to the Robertson County cases pending in the 20th District Court at the time of the realignment. Cf. Act of May 25, 1983, 68th Leg., R.S., ch. 468, 1983 Tex. Gen. Laws 2743. It is this realignment that we will come back to under the second analysis.
Since the realignment in 1983, other judgments have been rendered in this case. The 82nd District Court purported to dismiss the case in 1985 for want of prosecution. There are substantial unresolved factual questions about whether any type of notice to any party that dismissal was being considered or whether notice was ever given that the dismissal judgment had been rendered. But I ask; how can a dismissal for want of prosecution be proper when a final judgment had been rendered over four years earlier — especially when that final judgment was a determination of parentage which also ordered the monthly payments of child support in a suit affecting the parent-child relationship? But I digress. Thereafter, a master's judgment reducing the unpaid child support to judgment was signed in 2000. While the style on the 2000 judgment indicated that it was a judgment in the 20th District Court, the notice of final judgment sent to Smith from what appears to be the Robertson County District Clerk's office, indicated that the judgment was "in the 82nd District Court of Robertson County, Texas." The record does not reflect that the master's 2000 judgment was ever appealed. But Smith filed a motion to set aside the 2000 judgment over a year later. The master denied the motion and Smith appealed the ruling to the district court. The 82nd District Court set aside the 2000 judgment almost two years later. This appeal was filed by the Attorney General to review the 82nd District Court's 2003 judgment setting aside the 2000 master's judgment.
The question: On Smith's 2001 motion filed 15 months after the 2000 judgment rendered in February, could the 82nd District Court review the 2000 judgment and set it aside based upon its determination that the 20th District Court's 1981 judgment was dismissed for want of prosecution four years after the 1981 judgment became final?
The answer: No.
"SUPER MOTION" REVEALED
Due to time limitations, I am unable to fully analyze and explain the distinction of a court's jurisdiction as distinguished from its authority. These are complex concepts the majority has not adequately addressed nor have they allowed me to do so before issuing their opinion. But to assist the reader, I refer you generally to Ex parte Seidel, 39 S.W.3d 221 (Tex.Crim.App. 2001) and Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71 (Tex. 2000).
If the 82nd District Court properly obtained jurisdiction, it had no authority in 1985 to dismiss the 1981 judgment four years after it became final. That 1985 dismissal was void as beyond the court's lawful authority. But in the unique world of family law and probate, you can have a final judgment for purposes of appeal, even when that judgment does not close the case. See Curtis v. Gibbs, 511 S.W.2d 263, 266 (Tex. 1974) (family law); Krumnow v. Krumnow, 10-04-00143-CV, 2005 Tex. App. LEXIS 7027, *9-13 (Tex.App.-Waco 2005, no pet. h.) (probate). Thus, there is no prohibition in this case, based on the limited information the record before us provides, to the Attorney General coming back and reducing the unpaid child support to judgment in 2000. That judgment then also becomes final for purposes of appeal. It was not appealed, so it cannot now be set aside by the trial court on a motion filed by Smith. Smith cannot come back into that same case, via a simple motion, and have the order reducing past due child support to judgment set aside on the basis that the 1981 judgment had been dismissed in 1985 for want of prosecution. To understand all the twists and turns in this appeal, we must examine what the majority has offered to explain its holding.
The Part Described
The majority describes the first judgment in this case as the 1985 judgment of dismissal for want of prosecution, not the 1981 judgment of legitimation and for child support. The Attorney General argued in its supplemental brief that the 82nd District Court did not have jurisdiction to (1) dismiss the 1981 judgment over four years after the judgment was rendered; and (2) set aside the 2000 judgment on a motion filed more than a year after that judgment was rendered because the court's plenary power to act in both instances had expired. I agree.
But the majority dismisses the Attorney General's first argument because the case number typed on the 1981 judgment is "11994" and the case number on all the subsequent judgments is 11993. The majority's reliance on this reference to reach their result is laughable. Why would the majority hang their analysis by such a weak thread as a typographical error that impacted nothing? Because that is the only way they can affirm the trial court's last judgment setting aside the 2000 judgment.
Even if the majority is right, that the 1985 judgment is valid and dismissed something, what did the 1985 judgment dismiss? The 1985 judgment dismissed, according to the majority, some mysterious proceeding that was not made a part of the record in this case and was not requested by the parties or this Court. And, to continue their "logic," for some strange reason, someone filed a motion to have unpaid child support that had been ordered in a different case reduced to judgment in this case. And so, an oblivious court master then reduced the unpaid child support to judgment in the wrong case. All this stretches common sense beyond its breaking point.
The Part Ignored
The majority's determination makes no sense. It makes no sense because it ignores the record in this case. First, it ignores the District Clerk's certification that the 1981 judgment is part of the record from case number 11993. Second, it ignores the Supplemental Record containing the Original Petition for Voluntary Legitimation of a Child which relates to the same child, with the same birth date, with the same father as the 1981 judgment finds. What is the case number on that petition? You guessed it — 11993. Third, it ignores Smith's motion to set aside the 2000 judgment which was based entirely on the fact that the 1981 judgment had been dismissed for want of prosecution by the 1985 judgment. (Again, as an aside, how can a judgment determining paternity of a child and setting an amount for child support be dismissed four years later for "want of prosecution"?). Fourth, it ignores the trial court's belief it had dismissed the 1981 judgment in 1985. The court stated in finding of fact number 3 in reference to the 2003 judgment setting aside the 2000 judgment that "an ORDER REDUCING UNPAID CHILD SUPPORT TO JUDGMENT was entered and cited it was based upon the judgment of June 15, 1981, which had been dismissed on October 21, 1985."
Why does the majority ignore the record? Because it does not want to reach the logical conclusion that the cause number on the 1981 judgment is simply a typographical error. If it reached that conclusion, it would have to address the Attorney General's argument that the 82nd District Court had no jurisdiction, sometimes referred to more appropriately as "authority", to set aside the 1981 judgment. And the Attorney General is correct.
Another Part Ignored
After conveniently skipping over the Attorney General's first argument, the majority concludes the 2000 judgment is void. There is no discussion of the Attorney General's second argument; that the 82nd District Court did not have jurisdiction (AKA: "authority") to set aside the 2000 judgment because the court's plenary power over that judgment had expired.
A judgment was rendered in 2000. It was not appealed. It has only been challenged by a motion filed over a year later. A proper method to challenge an improper judgment is by direct appeal. State ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995). No direct appeal was taken even though Smith was present at the hearing at which the judgment appears to have been signed. Alternatively, a judgment can be directly attacked by bill of review. TEX. R. CIV. P. 329b(f). No bill of review has been filed. Judicial action taken with regard to a judgment in a proceeding after the court's jurisdiction over that judgment has expired is a nullity. State ex rel. Latty, 907 S.W.2d at 486. The trial court's effort to revisit the 2000 judgment in 2003 was a nullity.
The Attorney General's second argument is also correct.
The Part Assumed
But, again, the majority has concluded the 2000 judgment was void. The following statement appears in the majority opinion: "A void judgment is a nullity and its enforcement may be enjoined in a collateral proceeding." That's it. No discussion on how this statement fits with what occurred in this case. It would seem to have relevance only if, as the majority apparently assumes, Smith was trying to enjoin the enforcement of the judgment in a collateral proceeding. There is nothing in the record that would indicate anyone was trying to enforce the judgment. Although in the 2000 judgment there is a section about income withholding, there is nothing in the record that Smith had a job, that the court had this information, or that any income had been or was actually being withheld. This is the type information that could have been presented in a bill of review or other attack on the validity of the judgment.
There is no discussion in the majority opinion about whether this motion filed by Smith was some type of collateral proceeding. What is a collateral proceeding? It is a proceeding in which an attack on a judgment is made that attempts to avoid the binding force of that judgment in a proceeding not instituted for the purpose of correcting, modifying, or vacating the judgment, but instituted to obtain some specific relief which the judgment currently stands as a bar against. Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005). Only a void judgment may be collaterally attacked. Id.
Alternatively, a direct attack on a judgment is an attempt to change that judgment in a proceeding brought for that specific purpose, such as an appeal or a bill of review. Ranger Ins. Co. v. Rogers, 530 S.W.2d 162, 167 (Tex.App.-Austin 1975, writ ref'd n.r.e.). And a direct attack on a judgment must be brought in the court rendering the judgment. In re John G. Kenedy Memorial Foundation, 159 S.W.3d 133, 141 (Tex.App.-Corpus Christi 2004, orig. proceeding).
Smith did not argue in his motion that the 2000 judgment was void, only voidable; therefore, any collateral attack would be improper. Additionally, the motion was not filed in a proceeding instituted to obtain specific relief which the 2000 judgment currently stands as a bar against. So, this was not a collateral attack. This was a direct attack. But wait; was it filed in the court which rendered the judgment? Maybe, maybe not. Remember, the record is unclear which court rendered the 2000 judgment. Additionally, the motion to set aside was filed over a year after the 2000 judgment was signed. Smith's time for appeal had run and he did not file a bill of review. So, the motion, at best, was an improper direct attack; thus, the 2000 judgment could not be set aside in the manner pursued by Smith.
This is but yet another example of the majority making arguments on appeal that have not been made or addressed by the litigants, but which they find necessary to get to a result. See Pena v. State, 166 S.W.3d 274, 285 (Tex.App.-Waco 2005, pet. granted).
In Closing
To reveal the core problem of the majority's analysis of the "super motion" theory, I ask the reader to focus on a single statement of law upon which the majority's entire opinion hinges: "Once a case has been dismissed, no further action may be taken in that case." Really! Then would somebody explain to me what the 82nd District Court was doing ruling on a motion filed in 2001 in a case the district court and now a majority of this Court concludes was dismissed in 1985? To follow the majority's analysis to its logical conclusion, if the 2000 judgment was void because the "district court did not have the authority to act in cause number 11993 in 2000" because the case had been dismissed in 1985, the trial court's judgment on a motion filed in 2001 in the same case must also be void. The majority thus fails to follow its own analysis by affirming a void judgment.
I believe this shows the majority's analysis is wrong. So, too, it shows that their result is wrong.
REALIGNMENT OF DISTRICT COURTS
If I am wrong on the above analysis, the Attorney General still prevails on another, more technical, analysis.
This issue, the real issue in this case, is remarkably narrow. Did the trial court have jurisdiction to render the judgment appealed? In this case, because of a legislative realignment of the courts, there is a question about which court, the 20th or the 82nd District Court, had jurisdiction of the case after the realignment.
Legislative Help
The Legislature has generally provided for what happens to pending cases when the jurisdiction of a court changes. Since at least 1911, a general statute has provided for some of the effects of a change in the counties that make up a judicial district:
If the counties that compose a judicial district or the time or place for holding terms of a district court are changed by law:
(1) the process and writs issued from the district court and made returnable to the next term of court fixed by the law at the time of the issuance are returnable to the next term of the court as fixed by the amended law and are as legal and valid as if they were made returnable to the term of the court as fixed by the amended law;
(2) the grand and petit jurors selected or drawn under the prior law in any county in the judicial district are lawfully selected or drawn for the next term of the district court of the county as fixed by the amended law; and
(3) the obligees in all appearance bonds and recognizances taken in and for the district court and the witnesses summoned to appear before the district court under the prior law are required to appear at the next term of the court as fixed by the amended law.
TEX. GOV'T CODE ANN. § 24.018 (Vernon 2004). Before the Government Code was recodified, this section was Article 200 of the Revised Civil Statutes.
In 2001, the Legislature provided for the transfer of family law cases when a new court is created in a county:
(a) On the creation of an additional district court in a county, an existing district court in the county may transfer to the new court a case regarding a child who is subject to the continuing exclusive jurisdiction of the existing court under Title 5, Family Code, regardless of whether the case is pending in the existing court or the existing court rendered a final order in the case.
(b) The district court to which the case is transferred under this section acquires continuing exclusive jurisdiction under Title 5, Family Code, over the child.
TEX. GOV'T CODE ANN. § 24.022 (Vernon 2004) (emphasis added). The act adding Section 24.022 provides that the section applies "to a case transferred from a district court of a judicial district to a newly created district court of that district, regardless of whether the case is transferred before, on, or after the effective date of this Act." Act of May 22, 2001, 77th Leg., R.S., ch. 1148, § 2, 2001 Tex. Gen. Laws 2552, 2552.
In enabling legislation, the Legislature has sometimes been more careful. In a couple of re-apportionments, the Legislature has provided that the cases pending in a court that is losing jurisdiction in a county be transferred to a court that will still have jurisdiction in the county.
In 1999, the Legislature created the 402nd District Court of Wood County. Act of May 30, 1999, 76th Leg., R.S., ch. 1337, § 10, 1999 Tex. Gen. Laws 4547, 4549 (current version at TEX. GOV'T CODE ANN. § 24.547 (Vernon 2004)); id. § 19, 1999 Tex. Gen. Laws at 4551. The Legislature also removed Wood County from the jurisdiction of the 114th and 294th District Courts. Id. §§ 12-13, 1999 Tex. Gen. Laws at 4549-50. The Legislature provided:
(a) On September 1, 1999, the local administrative district judge shall transfer all cases from Wood County that are pending in the 114th District Court or the 294th District Court to the 402nd District Court.
(b) When a case is transferred from one court to another as provided by Subsection (a) of this section, all processes, writs, bonds, recognizances, or other obligations issued from the transferring court are returnable to the court to which the case is transferred, as if originally issued by that court. The obligees in all bonds and recognizances taken in and for a court from which a case is transferred, and all witnesses summoned to appear in a court from which a case is transferred, are required to appear before the court to which a case is transferred as if originally required to appear before the court to which the transfer is made.
Id. § 23, 1999 Tex. Gen. Laws at 4551.
In 1995, the Legislature did something similar. Act of May 29, 1995, 74th Leg., R.S., ch. 704, 1995 Tex. Gen. Laws 3713. The Legislature created the 394th District Court of Brewster, Culberson, Hudspeth, Jeff Davis, and Presidio Counties. Id. § 20, 1995 Tex. Gen. Laws at 3717 (current version at TEX. GOV'T CODE ANN. § 24.539 (Vernon 2004)); id. § 29, 1995 Tex. Gen. Laws at 3719. The Legislature removed Culberson and Hudspeth Counties from the 34th and 210th District Courts. Id. § 17, 1995 Tex. Gen. Laws at 3716; id. § 19, 1995 Tex. Gen. Laws at 3717. The Legislature also removed Brewster, Jeff Davis, and Presidio Counties from the 83rd District Court. Id. § 18, 1995 Tex. Gen. Laws at 3716. The Legislature provided:
(a) The local administrative district judge shall transfer all cases from Culberson and Hudspeth counties that are pending in the 34th and 210th district courts on the effective date of this Act to the 394th District Court.
(b) The local administrative district judge shall transfer all cases from Brewster, Jeff Davis, and Presidio counties that are pending in the 83rd District Court on the effective date of this Act to the 394th District Court.
(c) When a case is transferred from one court to another as provided by Subsections (a) and (b) of this section, all processes, writs, bonds, recognizances, or other obligations issued from the transferring court are returnable to the court to which the case is transferred as if originally issued by that court. The obligees in all bonds and recognizances taken in and for a court from which a case is transferred, and all witnesses summoned to appear in a court from which a case is transferred, are required to appear before the court to which a case is transferred as if originally required to appear before the court to which the transfer is made.
Id. § 23, 1995 Tex. Gen. Laws at 3717-18.
And even in the appellate court arena, the Texas Constitution of 1876 provided for the disposition of cases pending in the Supreme Court when it created the former Court of Appeals, which had jurisdiction over criminal appeals and appeals from county courts. TEX. CONST., art. V, § 6 (amended ____), reprinted in 8 H.P.N. GAMMEL, THE LAWS OF TEXAS 1822-1897, at 779, 801 (Austin, Gammel Book Co. 1898), available at http://texinfo.library.unt.edu/lawsoftexas/pdf/law08011.pdf. The Court of Appeals thus took over those cases from the Supreme Court. Article V of the Constitution provided for procedures for the transfer:
All cases now pending in the Supreme Court, of which the Court of Appeals has appellate jurisdiction under the provisions of this Article, shall, as soon as practicable after the establishment of said Court of Appeals, be certified, and the records transmitted to the Court of Appeals, and shall be decided by such Court of Appeals as if the same had been originally appealed to such court.
TEX. CONST., art. V, § 8 (amended ____), reprinted in 8 GAMMEL at 803.
But the most thorough example I have found was in a re-apportionment between a county court and a district court in 1955. In 1909, the Legislature had limited the Crockett County Court's jurisdiction to probate matters. Act approved Apr. 21, 1909, 31st Leg., 1st C.S., ch. 31, § 1, 1909 Tex. Gen. Laws 351, 351. In 1955, the County Court was restored to general jurisdiction. Act of Apr. 5, 1955, 54th Leg., R.S., ch. 105, § 1, 1955 Tex. Gen. Laws 384, 384. The amending act provided:
Sec. 2. Except as stated in Section 3 of this Act, the District Clerk of Crockett County shall make complete transcripts of all orders in all cases, both civil and criminal, pending in the District Court in Crockett County which by the provisions of this Act are placed within the jurisdiction of the County Court of Crockett County and shall deliver the transcripts together with all original papers in each case to the County Clerk of Crockett County within thirty (30) days after this Act takes effect. The County Clerk shall immediately docket all such cases on the proper docket of the County Court of Crockett County in the same relative order as each case stood on the docket of the District Court. The District Clerk shall accompany the papers in each case with a certified bill of costs and a statement of all cost deposits. The District Clerk shall deduct from each deposit the accrued fees due him and shall pay to the County Clerk the remainder of the deposit. Credit shall be given to each litigant who has paid a jury fee in the District Court for the excess of the fee over the jury fee for the County Court.
Sec. 3. The District Court in Crockett County shall retain jurisdiction over all cases in which judgment has become final prior to the time this Act takes effect and shall continue to exercise all the powers and perform all the duties relative to the enforcement of such judgments.
In any case in which trial has been commenced but judgment has not been rendered or in which judgment has been rendered but has not become final at the time this Act takes effect, the case shall be retained on the docket of the District Court and the District Court shall continue to exercise all the powers and perform all the duties relative to completion of trial, rendition of judgment, hearing of motion for new trial, and perfection of appeal. If judgment becomes final without an appeal having been taken, the District Court shall retain jurisdiction of the case for all purposes, including enforcement of the judgment. If an appeal is taken, jurisdiction of all proceedings after appeal shall be transferred to the County Court, and the District Clerk shall transmit to the County Clerk the papers and records in the case after the transcript has been forwarded to the Appellate Court and shall notify the Clerk of the Appellate Court of such transfer.
Sec. 4. All processes issued and all bonds and recognizances made before this Act takes effect in cases which are transferred to the County Court of Crockett County in accordance with this Act shall be valid for and returnable to the County Court in the same manner as if the action had been originally taken in that court.
Id.
This litany of legislation makes it abundantly clear the legislature is aware of the issue and knows how to provide for the transfer of cases in the realignment of courts. The issue we must decide is what is the effect in this family law case when the legislature realigned the counties in a district court's jurisdiction but did not address cases already pending in a court from a county that will no longer be in that court's assigned district.
The Family Code
Generally, once jurisdiction of a court attaches, the court does not lose jurisdiction absent express provisions to the contrary. See Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 449 (Tex. 1996). The 20th District Court obtained jurisdiction in 1980 when it rendered a final judgment in a matter provided by Title 5 of the Texas Family Code. See TEX. FAM. CODE ANN. § 160.601 et. seq. (Vernon 2002 Supp. 2005). And under the Family Code, because it rendered a final judgment, the 20th District Court has continuing, exclusive jurisdiction. TEX. FAM. CODE ANN. § 155.001(a) (Vernon 2002). Once it had continuing, exclusive jurisdiction, "no other court has jurisdiction of a suit with regard to that child." Tex. Fam. Code Ann. § 155.001(c) (Vernon 2002) (emphasis added). It makes no difference that the 20th District Court no longer has territorial jurisdiction of Robertson County because the court has continuing, exclusive jurisdiction of the child, and it is jurisdiction of the child that controls.
There are reasons for this control. The legal decisions affecting the lives of children need to be made by one court, and parents should not be able to forum shop.
Soon after the enactment of the continuing jurisdiction provisions, the Texas Supreme Court stated:
Recognizing the need to commit the decision of all controversies that directly affect the welfare of particular children to a single court, the Legislature recently enacted Chapter 11 of the Texas Family Code, which provides that once a court acquires jurisdiction of "the parent-child relationship" with respect to a particular child, it has exclusive "continuing jurisdiction" of all suits affecting that relationship . . . We assume the Legislature intended to use the phrase "continuing jurisdiction" in the same sense in which this court has heretofore used it in connection with child support orders, to mean that jurisdiction which continues after final judgment.
Curtis v. Gibbs, 511 S.W.2d 263, 266 (Tex. 1974).
As Justice Rickhoff noted in his concurring opinion,
The concept of continuing, exclusive jurisdiction has been described as "a major innovation" of the Texas Family Code. Eugene L. Smith, Texas Family Code Symposium Supplement, Parent and Child, 8 TEX. TECH L. REV. 19, 23 (1976). Before the Legislature enacted the continuing, exclusive jurisdiction provisions, suits affecting one child were decided by various judges in various courts, with the effect that "[j]udges passing on some facet of a child's welfare were cast into the position of a blind man touching and describing an elephant." Id. "[I]nvesting only one court with power to rule on issues affecting the child was predicted to be an effective way to give courts access to more information and leave them the widest latitude in dealing with the child's best interests." Id.
In re Garza, 981 S.W.2d 438, 442 (Tex.App.-San Antonio 1998, orig. proceeding).
Additionally, by enacting the Family Code, the legislature "adopted a scheme for handling parent-child matters in a manner that avoids forum shopping, races to the courthouse, child snatching, and the harassment of a parent by the other parent filing suits in random courts." Trader v. Dear, 565 S.W.2d 233, 235 (Tex. 1978).
Other Decisions
Ours is not the first court that has had to determine the effect a court's encroachment into the continuing, exclusive jurisdiction of another court.
In In re Garza, one district court rendered a final decree, thus becoming the court of continuing, exclusive jurisdiction. Pursuant to Bexar County's rotating civil docketing system, the case was randomly assigned to another judge when the mother filed an application for a protective order. The Court of Appeals held that the statutory and constitutional exchange of benches provisions authorized any judge to rule on custody and support matters so long as the record is clear that the judge is acting for the court of continuing, exclusive jurisdiction. Garza, 981 S.W.2d at 442. In a concurring opinion, however, Justice Rickhoff recognized that the rotating docketing system "renders the continuing, exclusive jurisdiction provisions meaningless." Id. at 443 (Rickhoff, J., concurring). He advised the district courts to implement the spirit of the Family Code by creating a rule requiring the presiding judge to consider assigning motions and actions related to custody and support of children to the same judge who rendered earlier decisions related to those children "because judge shopping is a serious temptation for some parents. . . ." Id. at 443-444.
In In the Interest of G.R.M., while a modification of a custody and support order rendered by one court was pending, a new district court was created in response to a heavy caseload in Denton County. The presiding judge of the court with continuing, exclusive jurisdiction transferred the case to the new court for docket equalization purposes. On appeal, the Fort Worth Court recognized that it had previously held the Family Code provided the only proper means to transfer parent-child relationship cases. In the Interest of G.R.M, 45 S.W.3d 764, 767 (Tex.App.-Fort Worth 2000, no pet.). However, the Court distinguished its prior holding, noting that section 24.950 of the Texas Government Code was enacted later than the Family Code's Chapter 155 transfer provisions. Id. at 770. It also noted that the legislature intended to authorize intra county transfers without regard to Chapter 155 because the Judicial Reapportionment Act applied to all courts and because the purpose in creating the new court was to relieve the other courts of overcrowded dockets. Id. at 771. The new court was a family court and it would not make sense to be unable to transfer family law cases to that court. Id. Our Case
The 82nd District Court might have considered the case transferred to it, as did the court in G.R.M., under the provisions of section 24.950, the equalization of dockets provision. See Tex. Gov't Code Ann. § 24.950 (Vernon 2004). However, section 24.950 only allows a transfer of cases between courts of the same county. Id. That is not the situation here. Maybe the judge of the 82nd District Court could have heard the case pursuant to section 74.094, which allows a district judge to hear or determine a matter pending in any district court in the county, but the matter pending would have to be in the same county and the judge of the 82nd District Court would have to be assigned to the 20th District Court. Tex. Gov't Code Ann. § 74.094(a) (Vernon 2005). The case was not pending in the same county, and there is no indication of the judge of the 82nd District court being assigned to the 20th District Court. And possibly, the district courts could have used section 24.303, the exchange of benches provision, to allow the judge of the 82nd District Court to rule on the case. TEX. GOV'T CODE ANN. § 24.303(a) (Vernon 2004). However, to use that provision, the courts must have territorial jurisdiction of the same county, which these courts did not have at the time of the actions first taken by the 82nd District Court. Id. But regardless, an exchange of benches does not trump the transfer provisions of the Family Code. See Alexander v. Russell, 699 S.W.2d 209, 210 (Tex. 1985); Johnson v. Pettigrew, 786 S.W.2d 45, 47-48 (Tex.App.-Dallas 1990, no writ).
From this record is it unclear how or why the 82nd District Court became involved at all. And the record in this case does not show any method by which the 82nd District Court had jurisdiction over this case to set aside the 2000 judgment. If there was some kind of transfer order, we do not have it. And the Attorney General asked for one to be included in the Record if there was one. No transfer order was included in the record.
The only statutory provision applicable to the jurisdiction of the 20th District Court in this case is that it had continuing, exclusive jurisdiction of this suit affecting the parent-child relationship. TEX. FAM. CODE ANN. § 155.001(a), (c) (Vernon 2002). There has been no jurisdiction terminating event. Thus, the 20th District Court still has continuing, exclusive jurisdiction. And the 82nd District Court had no jurisdiction to act on Smith's motion.
THE PROPER RESULT
The trial court's 2003 judgment should be reversed and a judgment rendered dismissing Smith's motion for want of jurisdiction. Because a majority of this Court affirms the 2003 judgment of the trial court, I dissent.