In the Interest of W.A.H., a Child v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: October 24, 2023
• Docket: 05-23-00625-CV
• Status: Published

Opinion

DISMISS and Opinion Filed October 24, 2023

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00625-CV

IN THE INTEREST OF W.A.H., A CHILD

On Appeal from the 302nd Judicial District Court Dallas County, Texas Trial Court Cause No. DF-23-08291

MEMORANDUM OPINION Before Chief Justice Burns, Justice Molberg, and Justice Goldstein Opinion by Chief Justice Burns The underlying suit was filed by the Department of Family and Protective

Services and includes competing petitions for conservatorship filed by mother and

by W.A.H.’s aunt and uncle. By this appeal, father challenges the trial court’s May

26, 2023 interlocutory order granting temporary sole managing conservatorship to

mother, ordering father to pay child support, imposing temporary injunctions against

father, and dismissing the Department. Because the order is not appealable, we

dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a).

It is well-settled that an appeal may be taken only from a final judgment that

disposes of all parties and claims and interlocutory orders as allowed by statute. See Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992). Because section

105.001(e) of the Texas Family Code specifically prohibits an appeal from

temporary orders rendered in suits affecting the parent-child relationship, we

requested father to file a letter brief addressing the jurisdictional issue. See TEX.

FAM. CODE ANN. § 105.001(e). Father complied.

In his letter brief, father argues section 105.001(e) does not apply because that

section limits appeals to temporary orders rendered under “this section”–section

105.001–and the temporary orders at issue were rendered under chapter 153 of the

family code. See TEX. FAM. CODE ANN. § 105.001(e) (“Temporary orders rendered

under this section are not subject to interlocutory appeal.”) (emphasis added); see

also id. Tit. 5, Subt. B, Ch. 153 (concerning conservatorship, possession, and access

to child). Alternatively, he argues the order is appealable under civil practice and

remedies code section 51.014(a)(4), which generally authorizes appeals from orders

granting temporary injunctions, or as a final judgment because it dismisses the

Department as well as all claims the Department asserted.1 TEX. CIV. PRAC. & REM.

CODE ANN. § 51.014(a)(4). These arguments, however, fail. While the appealed

order dismisses the Department, it does not dispose of mother’s or aunt and uncle’s

petitions and, as a result, is not final. See Tipps, 842 S.W.2d at 272. Further, while

the order concerns, in part, the conservatorship of W.A.H., an issue governed by

1 Father argues we have jurisdiction on several other grounds, including that he will be challenging the constitutionality of certain statutes and he received unequal treatment under the law. These additional grounds, however, are not jurisdictional. –2– chapter 153, the order was authorized under section 105.001(a). That section

authorizes temporary orders in all suits affecting the parent-child relationship. See

TEX. FAM. CODE ANN. § 105.001(a) (providing that “[I]n a suit, the court may make

a temporary order . . . for the temporary conservatorship [and] support of the

child[.]”); see also § 101.031 (defining “suit”); § 101.032 (defining “suit affecting

the parent-child relationship”). Additionally, as a provision specific to cases under

the family code, section 105.001(e) prevails over the general provision in section

51.014(a)(4). See City of Dallas v. Mitchell, 870 S.W.2d 21, 23 (Tex. 1994) (“When

two statutes conflict, the specific controls over the general.”).

Because father appeals from an unappealable order, we dismiss the appeal for

want of jurisdiction. See id. 105.001(e); TEX. R. APP. P. 42.3(a).

/Robert D. Burns, III/ ROBERT D. BURNS, III 230625F.P05 CHIEF JUSTICE

–3– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

IN THE INTEREST OF W.A.H., A On Appeal from the 302nd Judicial CHILD District Court, Dallas County, Texas Trial Court Cause No. DF-23-08291. No. 05-23-00625-CV Opinion delivered by Chief Justice Burns. Justices Molberg and Goldstein participating.

In accordance with this Court’s opinion of this date, the appeal is DISMISSED for want of jurisdiction.

Judgment entered October 24, 2023

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