In the Interest of M.L.M. and J.C.M., Children v. .

• Court: Court of Appeals of Texas
• Decided: August 2, 2023
• Docket: 04-23-00338-CV
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-23-00338-CV

IN THE INTEREST OF M.L.M. and J.C.M., Children

From the 216th Judicial District Court, Gillespie County, Texas Trial Court No. 12842 Honorable Albert D. Pattillo, III, Judge Presiding

PER CURIAM

Sitting: Rebeca C. Martinez, Chief Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice

Delivered and Filed: August 2, 2023

DISMISSED FOR LACK OF JURISDICTION

This appeal arises from a suit to modify the parent-child relationship, filed by appellee.

Appellant is the father of the children. On January 3, 2023, the trial court signed Temporary Orders

and an Order for Child Custody Evaluation. The Temporary Orders require family therapy and

specify that each parent must pay all costs if the parent alone attends therapy or both parents must

split the costs if a child attends. The Temporary Orders also require each parent to obtain a

subscription to a co-parenting website at each parent’s expense. The Order for Child Custody

Evaluation orders a child custody evaluation by a qualified professional and requires each parent

to pay half of the costs. Appellant filed a motion to reconsider these orders, and then, on April 3,

2023, a notice of appeal, attempting an appeal from these orders. 04-23-00338-CV

On June 12, 2023, we ordered appellant to show cause why this appeal should not be

dismissed for lack of jurisdiction. We noted that it appeared that no statute authorized our

jurisdiction over this interlocutory appeal and that we had previously dismissed an attempted

appeal from temporary orders in a modification suit. See In re B.V., No. 04-21-00086-CV, 2021

WL 2814896, at *2 (Tex. App.—San Antonio July 7, 2021, no pet.) (mem. op.) (citing In re K.S.,

No. 02-20-00409-CV, 2021 WL 126596, at *1 (Tex. App.—Fort Worth Jan. 14, 2021, no pet.)

(mem. op.); see also Pina v. Shaw, No. 01-03-00088-CV, 2004 WL 306096, at *2 (Tex. App.—

Houston [1st Dist.] Feb. 19, 2004, no pet.) (mem. op.)).

Appellant responded, asserting that he “believes Mandamus would be the appropriate

course given that his Statement of Inability to Pay remains uncontested.” Appellant attached an

unsigned, proposed order, to his response. This proposed order denies appellant’s “Motion for

Reconsideration of January 3, 2023 Court Appointed Professionals.” Appellant also cites to Rule

145(g) of the Texas Rules of Civil Procedure as the basis for our jurisdiction “[s]hould the Trial

Court choose to adopt appellee’s erroneous [proposed] order.” Included within our record is a

hearing on appellant’s motion for reconsideration. During the hearing, appellant asked the trial

court to reconsider its prior orders and remove the requirement that he pay half of the costs of the

child custody evaluation.

Rule 145 provides a procedure to exempt a party from paying court costs if the party files

a statement of inability to afford payment. See TEX. R. CIV. P. 145(a), (b). However, after a party

files a sworn statement of inability to pay, a trial court may order the payment of court costs if it

holds an evidentiary hearing and if other requirements are met. See id. R. 145(e), (f). If a trial

courts order the payment of court costs after a party has filed a statement of inability to pay, that

party may challenge the order “by motion filed in the court of appeals with jurisdiction over an

appeal from the judgment in the case.” Id. R. 145(g)(1). “The motion must be filed within 10

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days after the trial court’s order is signed. The court of appeals may extend the deadline by 15

days if the [party] demonstrates good cause for the extension in writing.” Id. R. 145(g)(2).

Appellant asserts in his notice of appeal that he appeals from the Temporary Orders and

Order for Child Custody Evaluation, both of which were signed on January 3, 2023. Based on his

response to our show-cause order, it appears he has abandoned his appeal from these orders and

instead wishes to pursue mandamus relief as to an unsigned, proposed order denying his motion

for reconsideration.

To the extent appellant seeks to appeal from the January 3, 2023 orders, we hold that we

do not have jurisdiction over an appeal from these orders. As previously noted, no statute appears

to authorize an interlocutory appeal. See In re B.V., 2021 WL 2814896, at *2. Insofar as the

January 3, 2023 orders require appellant to pay certain costs, arguably, Rule 145(g) could provide

a jurisdictional basis for our review of the orders as to costs. However, even if these orders

required appellant to pay “costs,” as that term is defined, 1 appellant’s challenge to the orders is

untimely and Rule 145(g) does not provide a basis for our review. Rule 145(g) requires a motion

filed in the court of appeals within ten days of the challenged order, and it allows a fifteen-day

extension of the deadline for good cause. Id. R. 145(g)(2). Appellant’s April 3, 2023 notice of

appeal, challenging the January 3, 2023 orders, was filed well beyond the deadline, even if

extended. Rule 26.1(a)(2) of the Texas Rules of Appellate Procedure, which appellant cites in his

notice of appeal, does not provide for any additional or longer extension of the deadline because

the appellate rule, by its terms, applies only to appeals from judgments — not appeals from

1 Rule 145 defines “costs” as “any fee charged by the court or an officer of the court, including, but not limited to, filing fees, fees for issuance and service of process, fees for copies, fees for a court-appointed professional, and fees charged by the clerk or court reporter for preparation of the appellate record.” Id. R. 145(a).

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interlocutory orders. TEX. R. APP. P. 26.1(a)(2) (allowing notice of appeal to be filed within ninety

days after judgment is signed if party files motion to modify judgment).

To the extent appellant challenges the trial court’s refusal to sign an order on his motion

for reconsideration, we also lack jurisdiction over this appeal. Rule 145(g) concerns a challenge

to “an order issued by the trial court under this rule.” TEX. R. CIV. P. 145(g)(1). Rule 145(g) does

not provide for our review if no order has issued. See id.; cf. Tello v. Off. of Att’y Gen., Child-

Support Div., No. 03-22-00668-CV, 2022 WL 17490997, at *2 (Tex. App.—Austin Dec. 8, 2022,

no pet.) (mem. op.) (dismissing for lack of jurisdiction appeal from oral ruling requiring appellant

to pay costs).

Because appellant has not established a valid basis for our jurisdiction over his appeal, we

dismiss his appeal for lack of jurisdiction. See TEX. R. APP. P. 42.3(a). We do not address whether

mandamus relief may be appropriate because the issue is not before us, and our dismissal of

appellant’s appeal does not preclude appellant from pursuing mandamus relief by a separate

original proceeding.

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