Subject: IN THE SUPREME COURT OF TEXAS
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Date: Thu, 2 Aug 2007 22:20:13 -0500

IN THE SUPREME COURT OF TEXAS

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No. 04-1043

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In re Texas Department of
Family and Protective Services

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On Petition for Writ of Mandamus

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Justice Wainwright delivered the
opinion of the Court, in which Chief
Justice Jefferson, Justice
Hecht, Justice Brister,
Justice Medina, Justice Green, Justice Johnson, and Justice Willett joined.

Justice O’Neill filed a dissenting
opinion.

We deny Joy
Higdon’s motion for rehearing. We withdraw our opinion of September 22, 2006 and
substitute the following in its place.

Section
263.401 of the Texas Family Code establishes a deadline for rendition of a final
order in suits affecting the parent-child relationship (SAPCRs) brought by the
Texas Department of Family and Protective Services. Although the trial court
abused its discretion in failing to dismiss the Department’s case, we conclude
that here, the parties challenging the trial court’s denial of a motion to
dismiss under section 263.401 had an adequate remedy by accelerated appeal.

On January
23, 2003, the Department filed a SAPCR to terminate the parent–child
relationship between Joy Higdon and her two children. That day, the trial court
entered an ex parte order giving the Department the authority to take possession
of the children, naming the Department temporary managing conservator, and
setting the matter for a full adversarial hearing on February 3, 2003.
Apparently, Higdon was restored as managing conservator of the children at the
February hearing but agreed to place the children with their great-grandmother,
Ruby Ludwig.

The trial
court held periodic status hearings. In a temporary order dated August 19, 2003,
the trial court appointed the Department temporary managing conservator and
identified the dismissal date for the case as August 16, 2004. The children
continued to reside with Ludwig. In September, the trial court identified the
dismissal date for the Department’s case as January 26, 2004, and set the case
for trial on the merits. In January, the trial court extended the dismissal date
to July 24, 2004, as permitted by section 263.401(b) of the Texas Family Code.
On February 23, 2004, Ludwig intervened, seeking sole managing conservatorship
of the children.

On Monday,
July 19, 2004, the trial began. On Thursday, July 22, 2004, Ludwig and Higdon
filed motions to dismiss for failure to render a final order before the
statutory deadline. The Department rested its case on Friday, July 23, 2004.
Saturday, July 24, 2004, was the dismissal deadline identified by the court in
its January order. The trial recommenced on Tuesday, July 27, 2004. On July 28,
2004, the jury returned a unanimous verdict terminating the parent-child
relationship between Higdon and each child and appointing the Department, rather
than Ludwig, as sole managing conservator of the children. The trial court
announced the verdict from the bench, terminated the parental rights of the
fathers of the children, and denied the motions to dismiss. A hearing for entry
of judgment was set for August 11, 2004. The trial court rendered judgment on
Higdon’s parental rights and Ludwig’s intervention when it signed and filed the
final decree of termination on August 13, 2004.

On August 11,
2004 and August 12, 2004, Ludwig and Higdon, respectively, filed petitions for
writ of mandamus with the court of appeals seeking to compel the trial court to
dismiss the case for failure to render a final order before the dismissal date.
On October 21, 2004, the court of appeals granted mandamus relief and ordered
the trial court to dismiss the Department’s case. On November 18, 2004, the
court of appeals denied the Department’s motion for rehearing, correctly noting
that Ludwig’s intervention would be unaffected by the dismissal of the
Department’s SAPCR. The next day, the Department filed a petition for writ of
mandamus in this Court and a motion to stay further proceedings. This Court
granted the motion to stay.

Mandamus
relief is proper only to correct a clear abuse of discretion when there is no
adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d
124, 135‑36 (Tex. 2004); Walker v. Packer, 827 S.W.2d 833, 839 (Tex.
1992). The issuance of mandamus by the court of appeals is improper if the trial
court did not abuse its discretion or if the record fails to demonstrate the
lack of an adequate remedy on appeal. In re Prudential, 148 S.W.3d at
135‑36; Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.
1985). A trial court abuses its discretion when it fails to apply the law
correctly, so we consider the trial court’s legal ruling. Walker, 827
S.W.2d at 839-40.

In construing
a statute, our objective is to determine and give effect to the Legislature’s
intent. McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003). To
determine the Legislature’s intent, we look to the statute’s plain language and
the common meaning of the statute’s words. Id. Subsection 263.401(a) of
the Texas Family Code requires a trial court to dismiss a SAPCR filed by the
Department if a final order has not been rendered by the first Monday after the
one-year anniversary of the date when the trial court appointed the Department
temporary managing conservator. The statute allows a maximum extension of 180
days. Tex. Fam. Code §
263.401(b), (c). If the trial court has not rendered a final order at the
expiration of the additional 180 days, the court must dismiss the SAPCR.
Id. § 263.401(c). Section 263.403, entitled “Monitored Return of Child to
Parent,” provides an exception to the dismissal rule, but it is not applicable
to this case.

Higdon argues
the time period described in subsection 263.401(a) began running on the day the
trial court entered its ex parte orders. She calculates the first Monday after
the one-year anniversary of the January 23, 2003 ex parte order as January 26,
2004. After adding a 180-day extension, she argues the dismissal deadline was
Saturday, July 24, 2004. The Department argues that the January 23, 2003 ex
parte order that gave the Department temporary conservatorship did not trigger
the section 263.401 time period. Instead, the Department contends that the
period began after the August 11, 2003 hearing, making the dismissal deadline
August 15, 2004.

The
Department obtained temporary managing conservatorship by order of the trial
court on January 23, 2003. Thus, the statutory time period started on January
23rd because a court “rendered a temporary order appointing the department as
temporary managing conservator.” Tex.
Fam. Code § 263.401(a). Nothing in the statute excludes the Department’s
fourteen-day conservatorship obtained through the ex parte order from the
calculation of the dismissal deadline in section 263.401. We therefore determine
the deadline to be the date of the Monday following the one-year anniversary of
January 23, 2003, which is January 26, 2004.

On January
26, 2004, the trial court held a permanency hearing at which the court concluded
that a 180-day extension of this dismissal deadline was in the best interest of
the children, as permitted by subsection 263.401(b) of the Texas Family Code and
set the dismissal date for July 24, 2004. We agree that July 24, 2004 was the
dismissal deadline for the Department’s SAPCR. The trial court erred when it
failed to render a final order by that deadline.

Parties may
waive complaints about a trial court’s failure to render a timely final order.
Section 263.402 describes the vehicles by which a party can obtain a dismissal:
a timely motion to dismiss or a motion requesting the court to render a final
order before the deadline for dismissal. A timely motion to dismiss must be
filed before the Department introduces all of its evidence, other than rebuttal
evidence. Id. § 263.402(b). A motion requesting the court to render a
final order must be made before the dismissal deadline passes. Id. The
Department argues that Ludwig’s and Higdon’s motions to dismiss were not timely
made.

On July 19,
2004, the trial began. On Thursday, July 22, 2004, Ludwig and Higdon made
motions to dismiss based on the Saturday, July 24 dismissal deadline. The
Department rested its case on Friday, July 23. On Wednesday, July 28, 2004, the
jury returned a unanimous verdict terminating the parent-child relationship
between Higdon and each child and appointing the Department, rather than Ludwig,
sole managing conservator of the children. The trial court read the verdict,
terminated the parental rights of the fathers, and denied both motions to
dismiss. Higdon and Ludwig complied with the statutory deadline by filing before
the Department rested and had ripe motions to dismiss before the trial court
when the deadline passed. The trial court abused its discretion by failing to
dismiss the Department’s SAPCR within the statutory time period as requested by
Higdon’s and Ludwig’s timely motions.

Now we must
determine whether the court of appeals correctly concluded that Higdon and
Ludwig had no adequate remedy by appeal and were therefore entitled to mandamus
relief. Although we have recognized that the standard’s “operative word,
‘adequate’, has no comprehensive definition” and demands a “careful balance of
jurisprudential considerations that determine when appellate courts will use
original mandamus proceedings to review the actions of lower courts,” mandamus
will not issue when the law provides another plain, adequate, and complete
remedy. In re Prudential, 148 S.W.3d at 135‑36; see also Iley v.
Hughes, 311 S.W.2d 648, 652 (Tex. 1958).

However,
“[j]ustice demands a speedy resolution” in cases involving child custody. See
Proffer v. Yates, 734 S.W.2d 671, 673 (Tex. 1987). In fact, we have
acknowledged that appeal “is frequently inadequate to protect the rights of
parents and children . . . .” Id. (granting mandamus relief for a trial
court’s failure to transfer a custody dispute to the required venue). The
Legislature enacted section 263.405, which provides an accelerated appeal that
shortens deadlines, expedites filing of the appellate record, and requires the
appellate court to “render its final order or judgment with the least possible
delay,” to address this concern. Tex.
Fam. Code § 263.405(a); see House Comm. On Juvenile Justice & Family
Issues, Bill Analysis,
Tex. H.B. 2249, 77th Leg., R.S. (2001) (“House bill 2249 addresses post-judgment
appellate delays . . . .”); see also Tex. Fam. Code § 263.405 (expediting
appeals of final orders rendered under subchapter E “Final Order for Child under
Department Care”); id. § 263.304 (authorizing parties to seek mandamus
relief to compel a court to comply with certain duties). Texas Rule of Appellate
Procedure 28 provides other mechanisms for expediting appeals involving the
termination of parental rights.

In this case,
Higdon and Ludwig filed their motions to dismiss during trial. Because the trial
was underway when the dismissal deadline passed and because physical possession
of the children had already transferred to the Department when the petition for
writ of mandamus was filed with the court of appeals, we conclude that an
accelerated appeal provided an adequate remedy in this case. We do not hold that
a party complaining of a trial court’s failure to dismiss a SAPCR within the
statutory deadline could never be entitled to mandamus relief, but under the
facts of this case, we cannot conclude that an accelerated appeal was not an
adequate remedy. Impending transfer of physical possession of the children or a
trial court’s unreasonable delay in entering a final decree might alter this
conclusion, but this record raises neither concern. In fact, because the trial
court entered the final decree on August 13, 2004, Ludwig and Higdon could have
initiated an accelerated appeal under section 263.403 of the Texas Family Code
at worst two days after they filed their petitions for writ of mandamus.

We recognize
that in particular cases the statute could work injustice or encourage
gamesmanship to push litigation beyond the deadline. We presume the Legislature
recognized this also. But the Legislature also recognized that a statutory
deadline would expedite the trial of these cases to help provide a modicum of
certainty for children whose family situations are subject to the outcomes in
these proceedings. It is not the Court’s task to choose between competing
policies addressed by legislative drafting. See McIntyre, 109 S.W.3d at
748. We apply the mandates in the statute as written.

For these
reasons, we conclude that the court of appeals erred in granting Ludwig’s and
Higdon’s petitions for writ of mandamus. We conditionally grant the Department’s
petition for writ of mandamus because Higdon and Ludwig had an adequate remedy
by appeal. Pursuant to Texas Rule of Appellate Procedure 52.8(c) and without
hearing oral argument, we direct the court of appeals to vacate its order to the
trial court directing the trial court to dismiss the case. The writ will issue
only if the court of appeals does not comply.

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J. Dale
Wainwright

Justice

OPINION DELIVERED:
December 15, 2006