in Re the Office of the Attorney General of Texas

Opinion issued May 22, 2008

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-08-00114-CV

____________

IN RE THE OFFICE OF THE ATTORNEY GENERAL OF TEXAS, Relator

Original Proceeding on Petition for Writ of Mandamus

O P I N I O N

Relator, the Office of the Attorney General of Texas (“the Attorney General”),

has filed a petition for writ of mandamus challenging two orders of the trial judge:

(1) the November 19, 2007 order affirming an associate judge’s October 17, 2007

ruling, which had vacated a June 18, 2007 order confirming a non-agreed child-support review order (“CSRO”), and (2) the January 30, 2008 order granting the

motion for new trial of the real party in interest, Sean Adrian Preston, and setting a

new trial. We determine whether the challenged orders are void for having been

entered outside the trial court’s plenary power. Answering in the affirmative, we

grant the petition and conditionally issue the writ.

Background

On July 17, 2000, the trial court signed an agreed order that, among doing other

things, established the parent-child relationship between Preston and the two children

who were the subject of a suit affecting the parent-child relationship (“SAPCR”) and

ordered Preston to pay $344 per month in child support to Rose Sanchez, the

children’s mother. Some time in early 2007, the Attorney General sought to modify

Preston’s child-support obligation pursuant to Texas Family Code chapter 233, which

provides an expedited administrative procedure for issuing CSROs in certain

circumstances. See Tex. Fam. Code Ann. §§ 233.001–.029 (Vernon 2002). The

Attorney General notified the parties that a negotiation conference in the

administrative proceeding would be held on February 28, 2007. See id.

§§ 233.009(a)–(c), (e) (Vernon 2002) (allowing agency to serve notice on all parties

of proposed CSRO and of negotiation conference to discuss said notice and to

schedule and to conduct conference), 233.0095(a)–(c) (Vernon 2002) (same, in cases

in which paternity has been acknowledged), 233.010(a) (Vernon 2002) (requiring

service of notice of negotiation conference). The record supports the trial judge’s

finding that, although the Attorney General served notice of the negotiation

conference on Preston, Preston did not receive that notice.

On February 28, 2007, the negotiation conference was held, but Preston did not

attend. At that conference, pursuant to Texas Family Code chapter 233, the Attorney

General adopted a non-agreed CSRO that increased Preston’s child-support

obligation to $640 per month. See id. §§ 233.010 (b) (allowing Attorney General to

“proceed with the review and file a child support review order according to the

information available” to it when party fails to attend negotiation conference),

233.013 (Vernon 2002) (providing guidelines for determining amount of child

support), 233.015(a) (Vernon 2002) (allowing for entry of final decision in form of

non-agreed CSRO). On March 17, 2007, as required by chapter 233, the Attorney

General filed a petition to confirm the non-agreed CSRO with the trial court that had

heard the earlier SAPCR. See id. § 233.020 (Vernon 2002) (providing for filing of

petition to confirm non-agreed CSRO). Sanchez waived service of process. The

record undisputedly supports the trial court’s finding that Preston was served with the

petition to confirm the non-agreed CSRO on April 11, 2007 .

Despite having been served with the petition for confirmation of the non-agreed CSRO, Preston did not answer or file an objection to the petition or request

a hearing. See id. §§ 233.022(a) (Vernon 2002) (requiring court to consider any

responsive pleading that is intended as objection to confirmation of non-agreed

CSRO, including general denial, as request for hearing), 233.023 (Vernon 2002)

(providing that request for hearing on petition for confirmation of non-agreed CSRO

be filed no later than 20 days after order is delivered to party). Accordingly, on June

18, 2007, an associate judge signed an order confirming the non-agreed CSRO. See

id. § 233.0271(a) (Vernon 2002) (requiring that court confirm and sign non-agreed

CSRO “not later than the 30th day after the date the petition for confirmation was

delivered to the last party entitled to service”). No one appealed the June 18

confirmation order to the referring court.

On August 20, 2007, Preston moved the associate judge to vacate his June 18

confirmation order. Preston’s motion to vacate was premised on Texas Family Code

section 233.0271(a), which requires that the trial court sign an order confirming a

non-agreed CSRO “not later than the 30th day after the date the petition for

confirmation was delivered to the last party entitled to service .” Id. § 233.0271 (a).

In that motion, Preston urged that, because the associate judge had failed to sign the

confirmation order within 30 days of its delivery to Preston—that is, before May 11,

2007, 30 days after Preston had been served with the confirmation petition—the

associate judge’s June 18 confirmation order was void for having been rendered after

the court had “lost its special authority to confirm the [non-agreed CSRO].” That is,

Preston viewed the 30-day requirement for signing a confirmation order under section

233.0271(a) to be jurisdictional. Preston requested that the associate judge vacate his

June 18 confirmation order for its being void.

The associate judge apparently agreed with Preston because, on October 17,

2007, he entered an order vacating his June 18 confirmation order. The Attorney

General appealed the October 17 ruling to the referring court, contesting the associate

judge’s implicit conclusions that the trial court (1) had jurisdiction to entertain and

to grant a motion to vacate that had been filed more than 30 days after the June 18

confirmation order had been signed and (2) lacked subject-matter jurisdiction to sign

the non-agreed CSRO more than 30 days after Preston had been served. See Tex.

Fam. Code Ann. §§ 201.015, 201.1042 (Vernon Supp. 2007) (allowing and

providing procedures for de novo hearing before referring court to appeal associate

judge’s rulings) .

The trial judge of the referring court held a de novo hearing on the Attorney

General’s appeal on November 9, 2007, during which the judge ruled verbally to

affirm the associate judge’s ruling on the basis that the associate judge had not signed

the confirmation order within 30 days of service on Preston. Ten days later, the trial

judge signed an order reflecting this ruling:

After hearing evidence presented and argument of counsel, [t]he Court

. . . finds that the ruling by the Associate Judge . . . should be affirmed

and that [the non-agreed CSRO] of June 18, 2007 should be vacated.

The Court bases its ruling upon the finding that the plenary power of the

. . . Court expired before the Court was presented with the [non-agreed

CSRO] for confirmation over 65 days following service of the last party

entitled to service in this proceeding. The Court finds that Respondent,

Sean Preston, was served with the Petition for Confirmation of [the non-agreed CSRO] on April 11, 2007 but that the . . . Court did not sign [the

non-agreed CSRO] until June 18, 2007. The Court further found that it

was incumbent upon the moving party, the Office of the Attorney

General, to check service and to ensure that the return of service be

timely filed with the papers in this cause so that the Order of

Confirmation can be timely signed by the . . . Court as required by

[Texas Family Code section] 233.0271.

On December 18, 2007, the Attorney General moved to vacate the trial judge’s

November 19, 2007 order affirming the associate judge’s October 17 ruling. On

January 17, 2008, the trial judge of the referring court entered findings of fact and

conclusions of law concerning its November 19 order of affirmance. Therein, the

trial judge found (1) that the Attorney General sent notice of the instigation of the

child-support review proceeding and of the negotiation conference to Preston, but he

did not receive the notice; (2) that Preston’s wages were less than had been

determined at the negotiation conference for which he did not receive notice; (3) that

Preston was served on April 11, 2007 with the Attorney General’s petition for

confirmation of the non-agreed CSRO; (4) that the return of citation on Preston was

filed on May 3, 2007, but was not entered into the Judicial Information Management

System (“J.I.M.S.”) of Harris County until May 15, 2007;

and (5) that the associate

judge signed the order confirming the non-agreed CSRO on June 18, 2007. The trial

judge concluded (1) that it was the responsibility of the Attorney General, as the

moving party, to ensure that the return of service was timely filed with the papers of

the cause so that the confirmation order could be signed within the time period

required by Texas Family Code section 233.0271

and (2) that the order confirming

the non-agreed CSRO was not signed within 30 days of Preston’s being served with

the Attorney General’s confirmation petition, so that the “jurisdiction and plenary

power of the court had expired and therefore the [confirmation] order entered on June

18, 2007 is void and therefore should be vacated as it was presented for confirmation

after the plenary power of the . . . Court had expired.”

The Attorney General’s motion to vacate was heard on January 30, 2008, but

the trial judge of the referring court never expressly ruled on it. However, on the

same day on which she held the hearing, the trial judge signed an order granting

Preston’s motion for new trial. The Attorney General then sought mandamus relief

in this Court. We stayed further proceedings in the trial court pending the outcome

of this mandamus proceeding.

Mandamus Standards

Mandamus is an extraordinary remedy, which will generally issue only to

correct a clear abuse of discretion or a violation of a duty imposed by law when there

is no adequate remedy by appeal. In re Ford Motor Co. , 165 S.W.3d 315, 317 (Tex.

2005); Walker v. Packer , 827 S.W.2d 833, 839 (Tex. 1992). A trial court abuses its

discretion when it errs in determining what the law is or in applying the law to the

facts. In re Bruce Terminix Co. , 988 S.W.2d 702, 703 (Tex. 1998).

Mandamus is available when a judge acts outside of his court’s jurisdiction,

i.e. , when the judicial act is void. In re Union Pac. Res. Co. , 969 S.W.2d 427 , 428

nn. 1, 2 (Tex. 1998); In re Cornyn , 27 S.W.3d 327, 332 (Tex. App.—Houston [1st

Dist.] 2000, orig. proceeding). Despite the general requirement that no adequate

remedy by appeal exist for mandamus relief to be granted, mandamus will issue to

vacate a void order even when there is an adequate remedy by appeal. In re Cornyn ,

27 S.W.3d at 332 (“[M]andamus will lie to prevent a court from exercising

jurisdiction it does not have, even if there is an adequate remedy by appeal.”). A trial

court’s action is void when, for example, it had no subject-matter jurisdiction to take

that action. See Mapco, Inc. v. Forrest , 795 S.W.2d 700, 703 (Tex. 1990).

Voidness of the Complained-of Orders

The Attorney General first argues that the associate judge’s June 18, 2007 order

confirming the non-agreed CSRO was not void even though it was signed more than

30 days after the confirmation petition was served on Preston. Because the June 18

order was not appealed to the referring court, the Attorney General argues that it

became the trial court’s final judgment by operation of law. The Attorney General

thus also argues that all further orders of the trial court—t he associate judge’s

October 17, 2007 ruling vacating the June 18 confirmation order; the trial judge’s

November 19, 2007 order affirming the associate judge’s October 17 ruling; and the

trial judge’s January 30, 2008 order granting a new trial—were all void for having

been rendered outside the trial court’s plenary power .

A. Whether the June 18, 2007 Confirmation Order Was Void

In issue one, the Attorney General argues that the associate judge’s June 18,

2007 order confirming the non-agreed CSRO was not void.

“The office of the attorney general is designated as the state’s Title IV-D

agency.” Tex. Fam. Code Ann. § 231.001 (Vernon 2002). The purpose of chapter

233 of the Texas Family Code is to enable Title IV-D agencies like the Attorney

General “to take expedited administrative actions to establish, modify, and enforce

child support and medical support obligations, to determine parentage, or to take any

other action authorized or required under Part D, Title IV, of the federal Social

Security Act . . . .” Tex. Fam. Code Ann. § 233.001(a) (Vernon 2002).

To fulfill that purpose, chapter 233’s provisions promote expeditious resolution

of the administrative proceedings. For example, a party receiving notice of the

instigation of the chapter 233 administrative proceeding has only 15 days from the

date of receipt or delivery of the agency’s notice to execute an affidavit of financial

resources. See id. § 233.006(b)(1) (Vernon 2002). Likewise, when the agency later

serves notice of a proposed CSRO on the parties, they have only 15 days to request

a negotiation conference or to contest the notice. See id. §§ 233.009(b)(3),

233.0095(b)(3) (Vernon 2002). When no one requests a negotiation conference, the

agency has the option of nonetheless holding a negotiation conference or, if the

parties have agreed to and signed the proposed CSRO , of immediately presenting the

order to the court for confirmation. See id. §§ 233.009(c), (f), 233.0095(c), (f)

(Vernon 2002).

Similarly, if a negotiation conference is held, and the “parties reach an

agreement [at the conference], the agency’s review officer will prepare an agreed

[CSRO] that will be effective immediately on being confirmed by the court.” Id.

§ 233.012(2) (Vernon 2002) . The court must sign an agreed CSRO not later than the

third day after its filing. See id. § 233.024(a) (Vernon 2002) . If the parties do not

reach agreement at the negotiation conference, the agency has only five days after the

conference to issue a non-agreed CSRO or a determination that no such order will

issue. See id. § 233.015(a) (Vernon 2002). If the agency issues a non-agreed CSRO

and files in court a petition to confirm it, then a party has only 20 days thereafter to

request a hearing. See id. 233.023 (Vernon 2002); see also id. § 233.012(5) (Vernon

2002). The court must hold the requested hearing no later than 30 days after the

request is filed, and it may reset the hearing not later than 30 days after the date set

for the initial hearing. See id. § 233.026(a), (c) (Vernon Supp. 2007). If after a

hearing the court determines that the non-agreed CSRO should be confirmed, it must

immediately sign an order confirming the non-agreed CSRO; if the court concludes

that the relief sought in the agency’s non-agreed CSRO is inappropriate, it must sign

an appropriate order “at the conclusion of the hearing or as soon after the conclusion

of the hearing as is practical . . . .” Id. § 233.027(a)(1), (2) (Vernon Supp. 2007). On

the signing of a confirmation order after a hearing, the non-agreed CSRO becomes

a final order of the court. See id. § 233.027(b) (Vernon Supp. 2007).

As a further example of the Legislature’s intent in chapter 233 to promote

expeditious resolution of these proceedings, a court may not hold a hearing on a

petition to confirm a non-agreed CSRO if a party does not timely request a hearing.

See id. § 233.026(b) (Vernon Supp. 2007). Accordingly, if a request for a hearing has

not been timely received, the court “shall confirm and sign a [non-agreed CSRO] not

later than the 30th day after the date the petition for confirmation was delivered to the

last party entitled to service.” Id. § 233.0271(a) (Vernon 2002).

All of these procedures demonstrate an intent to expedite administrative child-support-review proceedings and orders.

Because Preston did not request a hearing on the Attorney General’s petition

to confirm the non-agreed CSRO, section 233.0271 applies. See id. § 233.0217 . That

section provides that a court “shall” sign the non-agreed CSRO within 30 days of the

confirmation petition’s delivery to the last party entitled to service. Id. § 233.0217(a).

It is undisputed that the associate judge did not sign the confirmation order within the

required 30 days. It was on this basis that the associate judge and the judge of the

referring court concluded that the associate judge’s June 18 confirmation order was

void. The issue for our consideration is whether the 30-day requirement of section

233.0271(a) is jurisdictional or not. If it is, then the associate judge’s failure to sign

the confirmation order within 30 days deprived the trial court of subject-matter

jurisdiction to enter such an order, rendering the June 18 confirmation order void. In

contrast, if the 30-day requirement is not jurisdictional, then the associate judge’s

failure to sign the confirmation order within 30 days did not deprive the trial court of

jurisdiction, and the confirmation order could be entered at a later date. This is an

issue of first impression with regard to Texas Family Code section 233.0271(a).

“Our primary goal is to ascertain and effectuate the Legislature’s intent.”

Cardinal Health Staffing Network, Inc. , 106 S.W.3d 230, 237 (Tex. App.—Houston

[1st Dist.] 2003, no pet.). In carrying out this duty, “we begin with the statute’s plain

language because we assume that the Legislature tried to say what it meant and, thus,

that its words are the surest guide to its intent.” Id. at 237–38. Section 233.0271(a)

provides:

If a request for hearing [to contest the confirmation petition] has not

been timely received, the court shall confirm and sign a nonagreed child

support review order not later than the 30th day after the date the

petition for confirmation was delivered to the last party entitled to

service.

Tex. Fam. Code Ann. § 233.0271(a) (emphasis added). “Shall” generally indicates

something mandatory. See, e.g. , Tex. Gov’t Code Ann. § 311.016(2) (Vernon 2005)

(noting that, unless context requires otherwise, “shall” imposes duty); Helena Chem.

Co. v. Wilkins , 47 S.W.3d 486, 493 (Tex. 2001) (stating that both “must” and “shall”

“are generally recognized as mandatory”). However, “[e]ven if a statutory

requirement is mandatory, this does not mean that compliance is necessarily

jurisdictional.” Wilkins , 47 S.W.3d at 494 . Put another way, “the issue is not whether

‘shall’ is mandatory, but what consequences follow a failure to comply.” State v.

$435,000.00 , 842 S.W.2d 642, 644 (Tex. 1992). For this reason, courts “have

historically looked to two factors to determine if the Legislature intended a provision

to be jurisdictional: (1) the presence or absence of specific consequences for

noncompliance . . . and (2) the consequences that result from each possible

interpretation . . . .” Wilkins , 47 S.W.3d at 495 (citations omitted).

Section 233.0271(a) does not state whether it is jurisdictional. See Tex. Fam.

Code Ann. § 233.0271(a) . Nor does it provide any consequence for the failure to

sign the confirmation order within 30 days of the confirmation petition’s delivery.

See id. Specifically, there is no corresponding provision in section 233.0271 or in

chapter 233 requiring dismissal of the confirmation proceeding for noncompliance

with the 30-day requirement.

Interpreting similar statutes containing expedited timelines for court action,

courts have readily held that deadlines like that in section 233.0271(a) are mandatory,

but not jurisdictional, when the statute is silent on the consequences of failure to

comply .

In particular, the Dallas Court of Appeals has very recently held that Texas

Family Code section 233.024, which requires that the court sign an agreed CSRO not

later than the third day after its filing with court, is not jurisdictional . See Charlton

v. State , No. 05-05-01043-CR, 2008 WL 726190, at *4 (Tex. App.—Dallas Mar. 19,

2008, no pet. h.). The underlying reasoning is that, had the Legislature intended for

the statutory deadline to be jurisdictional, it could have provided such a consequence,

but did not. See $435,000.00 , 842 S.W.2d at 644 ; Ex parte Brown , 875 S.W.2d 756,

760 (Tex. App.—Fort Worth 1994, orig. proceeding) . These courts conclude that, if

the required judicial action is not done within the statutorily mandated period, an

affected party may seek mandamus relief to compel the trial judge to take that action;

however, the trial court does not lose subject-matter jurisdiction to act. See

$435,000.00 , 842 S.W.2d at 644–45 ; In re E.D.L. , 105 S.W.3d 679, 688 (Tex.

App.—Fort Worth 2003, pet. denied) ; Fountain v. Knebel , 45 S.W.3d 736, 739 (Tex.

App.—Dallas 2001, no pet.); Harrell v. Harrell , 986 S.W.2d 629, 631 (Tex.

App.—El Paso 1998, no pet.); Godwin v. Aldine Indep. Sch. Dist. , 961 S.W.2d 219,

221 (Tex. App.—Houston [1st Dist.] 1997, writ denied) ; Ex parte Brown , 875 S.W.2d

at 760 .

The same logic applies here. The purpose of chapter 233 is to allow agencies

like the Attorney General to take expedited administrative action to modify child-support obligations, among doing other things. See Tex. Fam. Code Ann.

§ 233.001(a). That purpose is not well-served if the trial court must dismiss any

confirmation petition that is not heard within the required time, requiring the Attorney

General to reinstitute the proceedings. See Charlton , 2008 WL 726190, at *4

(“[N]othing in the statute makes an agreed [CSRO] signed after the three-day period

void. Indeed, such a reading of the statute runs directly contrary to its purpose of

efficiently providing for the support of children.”); Honts v. Shaw , 975 S.W.2d 816,

820 (Tex. App.—Austin 1998, no pet.) (interpreting 5-day deadline for court to set

trial as non-jurisdictional because interpreting it to be jurisdictional would not serve

purposes of election-contest proceedings) . A better interpretation is that the 30-day

requirement may be compelled by mandamus if not observed by the trial judge . The

Attorney General, as the party that filed the confirmation petition, had the right to

seek mandamus relief to compel the associate judge to sign the confirmation order

within 30 days; however, the Attorney General was also entitled to acquiesce in the

later ruling without the court’s losing subject-matter jurisdiction.

See Harrell , 986

S.W.2d at 631 (“[Family Code] section 201.015(f) is a deadline, a procedural

requirement for the trial court, not the parties. . . . While Appellant certainly had the

ability to pursue mandamus relief with regard to the trial court’s failure to set the

matter within thirty days, she was also entitled to acquiesce in a later trial setting. ”).

Its acquiescing in the later ruling did not deprive the trial court of subject-matter

jurisdiction. See id.

We sustain issue one.

B. Whether the Subsequent Orders Were Void

In issue two, the Attorney General argues that, because the June 18

confirmation order was neither void nor appealed to the referring court, it became the

final judgment in the cause. The Attorney General further argues that, because all

subsequent orders vacating the confirmation order or granting a new trial were

rendered after the trial court’s plenary power (as calculated from the confirmation

order’s signing) had expired, they were void.

“A child support review order issued under this chapter [Texas Family Code

chapter 233] and confirmed by a court constitutes an order of the court and is

enforceable by any means available for the enforcement of child support obligations

under this code . . . .” Tex. Fam. Code Ann. § 233.001(b) (Vernon 2002). After a

court confirms a non-agreed CSRO, as was done here, the parties have 30 days to file

a motion for new trial. See id. § 233.0271(b). These provisions indicate that an order

confirming a CSRO is a final judgment in the cause, from which point plenary power

runs for 30 days.

In this case, an associate judge signed the confirmation order. “If a request for

a de novo hearing [of the associate judge’s ruling] before the referring court is not

timely filed . . . , the proposed order or judgment of the associate judge . . . shall

become the order or judgment of the referring court by operation of law without

ratification by the referring court.” Id. § 201.1041(a) (Vernon Supp. 2007). A party

has seven days in which to request a de novo hearing before the referring court to

challenge the associate judge’s ruling. Id. §§ 201.1041(b), 201.015(a) (Vernon Supp.

2007). Because Preston did not appeal the associate judge’s June 18 confirmation

order to the referring court, it became the order of the referring court by operation of

law no later than June 25, 2007. Preston filed his motion to vacate the associate

judge’s June 18 confirmation order on August 20, 2007. Thirty days after the

associate judge’s order became the court’s final order was July 25, 2007; thirty days

after the associate judge signed the confirmation order was July 18, 2007. By either

calculation, Preston’s motion to vacate was filed outside the trial court’s plenary

power.

Orders entered outside a trial court’s plenary power are void. See, e.g. , State

ex rel. Latty v. Owens , 907 S.W.2d 484, 485 (Tex. 1995) (“Judicial action taken after

the court’s jurisdiction over a cause has expired is a nullity.”). “Mandamus relief is

appropriate when a trial court issues an order after its plenary power has expired”

because such rulings are void. In re Brookshire Grocery Co. , No. 05-0300, 2008 WL

53702, at *1 (Tex. Jan. 4, 2008); In re Dickason , 987 S.W.2d 570, 571 (Tex. 1998).

The associate judge’s October 17, 2007 order, as well as both of the orders of which

the Attorney General complains, were entered outside the trial court’s plenary power,

as calculated from the June 18, 2007 order confirming the non-agreed CSRO.

Accordingly, all three orders are void, and the June 18, 2007 order confirming the

non-agreed CSRO stands as the final judgment in this cause. See State ex rel. Latty ,

907 S.W.2d at 486 (“We declare the order appealed from void because it was signed

after the district court’s plenary jurisdiction expired. This leaves intact as the final

order in this case the prior order establishing Owens’ paternity and setting child

support.”).

We sustain issue two.

Conclusion

We withdraw our February 21, 2008 order granting a temporary stay. We grant

the petition for writ of mandamus. The trial judge is ordered to vacate the following

orders: (1) the November 19, 2007 order affirming the associate judge’s October 17,

2007 order vacating his earlier confirmation order and (2) the January 30, 2008 order

granting the motion for new trial of Preston and setting a new trial . We are confident

that the trial judge will comply with our determination; writ will issue only if the trial

judge fails to so comply.

Tim Taft

Justice

Panel consists of Justices Taft, Jennings, and Bland.