Mireles v. Jack (Tex.App.- Houston [1st Dist.] Apr. 2, 2009)(Jennings)
(void order, same-sex marriage divorce, collateral attack on divorce judgment)
AFFIRM TC JUDGMENT: Opinion by Justice Jennings
Before Justices Jennings, Keyes and Higley
01-08-00499-CV Andrew R. Mireles v. Jennifer S. Jack
Appeal from 310th District Court of Harris County
Trial Court Judge: The Honorable Lisa Millard
Appellant, Andrew R. Mireles, challenges the trial court’s order granting the petition of appellee,
Jennifer Jack, Jennifer Jack was formerly known as Jennifer S. Mireles. to set aside the parties’
divorce decree and declare their marriage void. In two issues, Mireles contends that Jack’s
petition, which is entitled “Original Petition for Bill of Review,” did not allege extrinsic fraud and the
trial court erred in granting Jack’s petition without requiring Jack to present legally and factually
sufficient evidence in support of the petition.
In her petition, Jack alleged that she and Mireles “were divorced by [the trial court] on April 25,
2005.” Jack sought to have the divorce decree relating to her marriage with Mireles set aside and
vacated because Mireles, Jack’s former husband, “was born a female named Phyllis Ann
On March 19, 2008, the trial court held a hearing on whether to enter an order granting Jack’s
petition. At the hearing, Mireles argued that in order for the trial court to grant a bill of review, Jack
had to present evidence of extrinsic fraud. Jack responded that she alleged “three grounds” for
granting her petition: “the voidness of a same sex marriage, lack of subject matter jurisdiction,
and then fraud.” At the end of the hearing, the following exchange occurred:
[Mireles:]That [proposed] order does however, Judge, set aside the divorce in its entirety. That’s
a decision the Court can’t make until after an evidentiary hearing.
[Jack:]Well, Judge, in response to that quickly, you can set aside the decree clearly.
[Mireles:]Not without hearing evidence.
[Jack:]Judge, there is evidence in there. If it’s on the basis of the —
[Trial Court:]I have an affidavit of Ms. Jack’s. I have a marriage that is void on its face based upon
the information that you attorneys have provided me. And, therefore, I am required by law to find
that the marriage is void. And so I’m going to deny your request to not enter the final order.
After the hearing, the trial court entered an order granting Jack’s petition and setting aside the
divorce decree, finding that “both parties are of the same female gender and that the marriage
between them is void. . . .”
Void Divorce Decree
In her first issue, Mireles contends that the trial court erred in granting Jack’s “bill of review”
petition without requiring Jack to plead and prove (1) a “meritorious defense” to the divorce
decree; (2) which Jack was prevented from making because of Mireles’s “fraud, accident or
wrongful act”; and (3) which was unmixed with Jack’s negligence. Jack responds that the trial
court did not err in granting her petition because the divorce decree pertained to a “void same-
A void judgment may be attacked by either a bill of review or a collateral attack. Zarate v. Sun
Operating Ltd., 40 S.W.3d 617, 620 (Tex. App.—San Antonio 2001, pet. denied). Although Jack
entitled her petition as a “Bill of Review,” she was actually attacking collaterally the divorce decree
in order to have the underlying marriage declared void, rather than attempting to secure the
rendition of a single, correct judgment in place of the earlier one. See Solomon, Lambert, Roth &
Assocs., Inc. v. Kidd, 904 S.W.2d 896, 900 (Tex. App.—Houston [1st Dist.] 1995, no writ);
Ramsey v. Ramsey, 19 S.W.3d 548, 552 (Tex. App.—Austin 2000, no pet.) (holding that
distinctive feature of collateral attack is that it attempts to avoid effect of judgment, by collaterally
attacking that judgment, in proceedings brought for some other purpose). A void judgment may
be collaterally attacked by any court of equal jurisdiction. Browning v. Placke, 698 S.W.2d 362,
363 (Tex. 1985) (per curiam).
To prevail on a collateral attack, a party must show that the complained-of judgment is void. See
Gainous v. Gainous, 219 S.W.3d 97, 105–06 (Tex. App.—Houston [1st Dist.] 2006, pet. denied).
A judgment is void when the court rendering judgment “had no jurisdiction of the parties, no
jurisdiction of the subject matter, no jurisdiction to enter judgment, or no capacity to act as a
court.” Id. at 105; see also Browning, 698 S.W.2d at 363; Sotelo v. Scherr, 242 S.W.3d 823, 830
(Tex. App.—El Paso 2007, no pet.); Zarate, 40 S.W.3d at 621. A judgment may also be
collaterally attacked when the public interest is directly and adversely affected as that interest is
declared in the statutes or the Constitution of Texas. Zarate, 40 S.W.3d at 621; Glunz v.
Hernandez, 908 S.W.2d 253, 255 (Tex. App.—San Antonio 1995, writ denied).
Generally, a party may not use extrinsic evidence in a collateral attack. Holloway v. Starnes, 840 S.
W.2d 14, 18 (Tex. App.—Dallas 1992, writ denied). However, void judgments may be attacked
collaterally with extrinsic evidence when the court “has not, under the very law of its creation, any
possible power” to decide the case. Templeton v. Ferguson, 33 S.W. 329, 332 (Tex. 1895); see
Easterline v. Bean, 49 S.W.2d 427, 430–31 (Tex. 1932); Cline v. Niblo, 8 S.W.2d 633, 635–36
(1928); S. County Mut. Ins. Co. v. Powell, 736 S.W.2d 745, 749 (Tex. App.—Houston [14th Dist.]
1987, no writ); Curtis Sharp Custom Homes, Inc. v. Glover, 701 S.W.2d 24, 26 (Tex. App.—
Dallas 1985, writ ref’d n.r.e.). For example, a court may not administer the estate of a living
person any more than it could determine a “suit for divorce in a foreign country in which neither of
the parties are domiciled.” Templeton, 33 S.W. at 332.
Here, both parties agree that Jack’s marriage to Mireles was void as a matter of law under the
Constitution and laws of Texas because both Jack and Mireles are female. See Tex. Const. art. I,
§ 32 (“Marriage in this state shall consist only of the union of one man and one woman.”); Tex.
Fam. Code Ann. § 6.204(b) (Vernon 2006) (“A marriage between persons of the same sex . . . is
contrary to the public policy of this state and is void in this state.”); Littleton v. Prange, 9 S.W.3d
223, 231 (Tex. App.—San Antonio 1999, pet. denied) (holding that party’s gender is determined
by true and accurate original birth certificate).
A Texas court has no more power to issue a divorce decree for a same-sex marriage than it does
to administer the estate of a living person. See Templeton, 33 S.W. at 332. Accordingly, we hold
that the trial court did not err in granting Jack’s collateral attack on the divorce decree relating to
the parties’ void same-sex marriage.
We overrule Mireles’s first issue.
Having found that the trial court did not err in granting Jack’s collateral attack on the divorce
decree, we need not address whether the alleged fraud would support a bill of review.
We affirm the judgment of the trial court.
Panel consists of Justices Jennings, Keyes, and Higley.