In the Interest of H.E.C. and E.G.C., Children v. the State of Texas

Opinion

In the

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-26-00011-CV

IN THE INTEREST OF H.E.C. AND E.G.C., CHILDREN

On Appeal from the 442nd District Court Denton County, Texas

Trial Court No. 25-9869-442

Before Stevens, C.J., van Cleef and Rambin, JJ.

Memorandum Opinion by Justice Rambin Concurring in Part and Dissenting in Part Opinion by Justice van Cleef

MEMORANDUM OPINION

This is an appeal concerning a former stepparent’s attempt to establish standing under the Texas Family Code to seek post-divorce custodial rights regarding the stepchildren. See TEX. FAM. CODE ANN. § 102.004(a) (Supp.); TEX. GOV’T CODE ANN. § 573.022(a).

Here, Mother had two children during a prior marriage, so her second husband became stepfather to these children. During their marriage, Mother and Stepfather had a child. Stepfather is the father of the younger child. The younger child is the half-sibling of the stepchildren.1 After Mother filed for divorce, Stepfather filed the present proceeding regarding the stepchildren.2 Stepfather asserts that the younger child provides him a path to biological standing regarding the stepchildren; he asserts that his biological relationship to the younger child, and then that child’s biological relationship to his half-siblings, the stepchildren. Stepfather asserts that makes him related to the stepchildren with sufficient closeness to confer standing, not because of a stepparent relationship, but because of a biological relationship. Mother filed a plea to the jurisdiction challenging Stepfather’s theory of standing. The trial court found that Stepfather lacked standing and dismissed the case. Stepfather appeals. For reasons set forth below, the biological relationship set forth does not establish consanguinity sufficient to

1 We use “stepchildren” because of the question presented by Stepfather’s appeal; the children’s relationship to their Mother is not at issue. We refer to the children with generic terms to protect their identities. See TEX. R. APP. P. 9.8. We likewise use generic terms for the adults regarding their respective relationships to the children at issue. Each of them, children and adults, is an individual with more substance and complexity than such labels. Even so, we present these undisputed facts generically because other proceedings are underway, or were at the time of the trial court’s ruling (namely a divorce proceeding and an adoption proceeding), and because the question presented by this appeal is a narrow question of law that does not call on us to speak further regarding these individuals or the nature and durations of their experiences with each other.

2 We capitalize Stepfather and Mother because Stepfather was the petitioner in the proceeding he initiated in the trial court, and Mother was respondent. Further, in this Court, they are now Appellant and Appellee, respectively.

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confer standing. We therefore affirm the trial court’s3 judgment regarding the finding that standing was not shown.

We do not affirm the trial court’s judgment entirely. Stepfather also appeals the trial court’s award of attorney’s fees against him. For reasons set forth below, we reverse and remand the award of attorney’s fees.

Therefore, for reasons set forth below, we affirm-in-part and reverse-in-part, and remand.

I. Stepfather Lacked Standing to File a SAPCR4 “Standing is a question of law we review de novo.” 425 Soledad, Ltd. v. CRVI Riverwalk Hosp., LLC, 709 S.W.3d 551, 557 (Tex. 2024).

Standing to file a statutory SAPCR is conferred by statute. TEX. FAM. CODE ANN.

§§ 102.001–007; In re H.S., 550 S.W.3d 151, 155 (Tex. 2018) (“standing to bring a SAPCR is governed by statute”).

Stepfather asserts standing under Section 102.004(a)(1) of the Texas Family Code (“In addition to the general standing to file suit provided by Section 102.003[ of the Texas Family Code], a grandparent, or another relative of the child related within the fourth degree[5] by consanguinity, may file an original suit requesting managing conservatorship if there is satisfactory proof to the court that: (1) the order requested is necessary because the child’s

3 Originally appealed to the Second Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (Supp.). We follow the precedent of the Second Court of Appeals in deciding the issues presented. See TEX. R. APP. P. 41.3. 4 Suit affecting the parent-child relationship (SAPCR).

5 The “fourth degree” was an expansion of standing from the “third degree” enacted as part of several changes to the SAPCR standing statutes in 2025. See Act of May 21, 2025, 89th Leg., R.S., ch. 402, § 1, 2025 Tex. Gen. Laws 981, 982.

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present circumstances would significantly impair the child’s physical health or emotional development[.]”). See TEX. FAM. CODE ANN. § 102.004(a)(1).

Section 102.004 does not contain an express reference to Texas Government Code provisions to define consanguinity. Id. However, another SAPCR standing statute does have such a reference. See TEX. FAM. CODE ANN. § 102.003(a)(12) (Supp.) (“fourth degree by consanguinity, as determined by Chapter 573, Government Code”). The parties here agree that the Texas Government Code provisions regarding consanguinity apply. Accordingly, we look to the Texas Government Code to assess Stepfather’s asserted standing.

Consanguinity, as used in the Texas Government Code, refers to blood relation. Taylor v.

Norton, 727 S.W.3d 511, 513 & n.3 (Tex. App.—Texarkana 2025, no pet.) (citing BLACK’S LAW DICTIONARY (11th ed. 2019)). The Texas Legislature has specified that “individuals are related to each other by consanguinity if: (1) one is a descendant of the other; or (2) they share a common ancestor.” TEX. GOV’T CODE ANN. § 573.022(a).

The stepchildren are not the Stepfather’s biological descendants. Stepfather does not assert that he and the stepchildren have a common ancestor. Under the Texas Government Code, Stepfather’s argument ends there.

Stepfather argues that this is an “interpretation” that is a prohibited absurdity in light of Section 102.004 and the policy goals set out by Section 153.001 of the Texas Family Code. See TEX. FAM. CODE ANN. § 153.001. “‘[I]t is not for courts to decide if legislative enactments are wise or if particular provisions of statutes could be more effectively worded to reach what courts or litigants might believe to be better or more equitable results.’” Rodriguez v. Safeco Ins. Co. of

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Ind., 684 S.W.3d 789, 795 (Tex. 2024) (alteration in original) (quoting In re Dep’t of Fam. & Protective Servs., 273 S.W.3d 637, 645 (Tex. 2009)). “[T]he absurdity safety valve is reserved for truly exceptional cases, and mere oddity does not equal absurdity.” Id. at 795–96 (quoting Combs v. Health Care Servs. Corp., 401 S.W.3d 623, 630 (Tex. 2013)). “Instead, the result must land in the realm of the ‘unthinkable or unfathomable.’” Id. at 796 (quoting Combs, 401 S.W.3d at 630).

Stepfather’s absurdity argument is brief. By “interpretation,” it appears that he is referring to the combined effect of the plain text of the statutes at issue. Stepfather asserts that the result here “undermines the Legislature’s intent to provide children access to protection from capable, close family members when necessary to prevent significant impairment.” But beyond that assertion, he makes no argument for how this result crosses the threshold set out by Rodriguez.6 Consequently, the result obtained by applying the plain text of the statutes at issue stands.

We affirm the trial court’s finding that Stepfather lacks standing under Section 102.004.

II. We Remand Regarding Attorney’s Fees Via two issues, Stepfather challenges the award of trial- and appellate- counsel’s attorney’s fees. Regarding trial-counsel’s attorney’s fees, Stepfather contends that the trial court erred by considering unredacted attorney bills in camera and further contends that the evidence of attorney’s fees was insufficient. Mother contends that sufficiency of the evidence can be

6 While we decline to make an absurdity finding, Stepfather’s assertion here goes to another issue in the case. Mother asks this Court for sanctions against Stepfather, alleging “a pattern of litigation harassment” including other proceedings. Other proceedings are not before us. In this proceeding, while we rule against Stepfather, we decline to find it sanctionable for him to question the effect of recent statutory changes.

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evaluated by the redacted bills as submitted into evidence. Accordingly, we bypass Stepfather’s first contention and proceed to the evaluation of trial-counsel’s attorney’s fees based on the redacted bills.

An “award of attorney’s fees generally rests in the sound discretion of the trial court.”

El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 761 (Tex. 2012) (citing Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 881 (Tex.1990) (per curiam)). Any attorney’s fees awarded, however, must be supported by legally sufficient evidence. Yowell v. Granite Operating Co., 620 S.W.3d 335, 356 (Tex. 2020). The Texas Supreme Court has “elaborated on the showing an attorney must make to support an award of fees in ‘any situation in which an objective calculation of reasonable hours worked times a reasonable rate can be employed.’” Id. at 354 (quoting Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 498 (Tex. 2019)). “In these situations, ‘the fact finder’s starting point for calculating an attorney’s fee award is determining the reasonable hours worked multiplied by a reasonable hourly rate, and the fee claimant bears the burden of providing sufficient evidence on both counts.’” Id. (quoting Rohrmoos Venture, 578 S.W.3d at 498). “Such evidence ‘includes, at a minimum, evidence of (1) particular services performed, (2) who performed those services, (3) approximately when the services were performed, (4) the reasonable amount of time required to perform the services, and (5) the reasonable hourly rate for each person performing such services.’” Id. (quoting Rohrmoos Venture, 578 S.W.3d at 498). Rohrmoos Venture did not overrule El Apple. Rohrmoos Venture, 578 S.W.3d at 501. Rohrmoos Venture, however, provided guidance on the application of El Apple. See id. Part of that guidance was that “billing records are strongly

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encouraged to prove the reasonableness and necessity of requested fees when those elements are contested.” Id. at 502.

The guidance further provided that “[c]harges for duplicative, excessive, or inadequately documented work should be excluded.” Id. at 498–99 (quoting El Apple, 370 S.W.3d at 762).

The Fort Worth Court of Appeals has applied this standard. See Liberty Bankers Life Ins.

Co. v. AIL Inv., L.P., No. 02-23-00212-CV, 2024 WL 2854776, at *13 (Tex. App.—Fort Worth June 6, 2024, pet. denied) (mem. op.) (citing Rohrmoos Venture, 578 S.W.3d at 498, 501–02). Liberty Bankers Life had before it redacted entries such as this:

• Final edits to [redacted] send to [redacted] confer with Chad Key on [redacted] 1.50 [hours];

• Review of [redacted] 1.20 [hours];

• Send [redacted] review and analyze [redacted] 1.10 [hours];

• Review and revise [redacted] 0.30 [hours];

• Review of [redacted] and forward to [redacted] review [redacted] 1.60 [hours];

• Receive and review [redacted] confirm with [redacted] 1.20 [hours]; and • Initial review of [redacted] correspondence to [redacted] 3.20 [hours].

Id. at *16 (alterations in original).

The Fort Worth court found such entries to be “so heavily redacted that the trial court could not possibly have had sufficient evidence to determine that the entire amount requested was not excessive or extreme, but rather moderate or fair.” Id. (quoting McGibney v. Rauhauser, 549 S.W.3d 816, 821 (Tex. App.—Fort Worth 2018, pet. denied)).

The redacted billing records here are much the same. They are largely blacked out with limited information by which to judge what was actually done. Accordingly, we find that award

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of trial-counsel’s attorney’s fees is not supported by sufficient evidence.7 As a result, the appropriate course of action is to remand. See Rohrmoos Venture, 578 S.W.3d at 506. We remand for a redetermination of appellate-counsel’s attorney’s fees as well.8 IV. Conclusion We reverse regarding the trial court’s findings of trial- and appellate- counsel’s attorney’s fees and remand for redetermination of the same. We affirm the trial court’s judgment regarding lack of standing.9

Jeff Rambin

Justice

7 Therefore, we need not and do not speak to those portions of the trial court’s order finding that Stepfather filed suit frivolously, and with intent to harass. Stepfather addressed those findings within his issue regarding trial-counsel’s attorney’s fees. Mother addresses them in her brief as though they were independent but does not present them as cross-issues. The trial court’s order did not impose any consequence for those findings. The Texas Family Code provides for an award of attorney’s fees in a SAPCR. See TEX. FAM. CODE ANN. § 106.002 (Supp.). Mother’s plea to the jurisdiction requested such an award. 8 Stepfather challenges the evidence supporting the forecasted appellate-counsel’s attorney’s fees awarded by the trial court. The affidavit in support for appellate-counsel’s attorney’s fees was brief. The forecasted appellate-counsel’s attorney’s fees were based in part on time spent on oral argument, which did not occur in this case. For both parties, some appellate arguments prevailed, some did not. Stepfather asserts, correctly, that the award of appellate- counsel’s attorney’s fees should have been made conditional on the outcome of the appeal. See Liberty Bankers Life, 2024 WL 2854776, at *16 (citing Sundance Mins., L.P. v. Moore, 354 S.W.3d 507, 515 (Tex. App.—Fort Worth 2011, pet. denied)). All of which points to remand for determination of appellate-counsel’s attorney’s fees based not on a forecast, but on what actually happened. See id. (“[W]e must remand the issue of appellate attorney’s fees to the trial court for redetermination in light of Appellants’ partial success on appeal.”). 9 Stepfather filed a motion to strike the supplemental clerk’s record which we deny as moot.

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CONCURRENCE IN PART AND DISSENT IN PART I respectfully concur in part and dissent in part to the majority’s opinion.

I concur to section I of the majority opinion, and dissent to section II of the majority opinion. In section III, I would overrule Stepfather’s appellate issues and affirm the decisions of the trial court.

Charles van Cleef

Justice

Date Submitted: July 6, 2026 Date Decided: August 25, 2026