Opinion Library
Texas court rulings translated into actionable litigation strategy.
This Week's DigestStrategy Category
786 opinions found
In the Interest of B.D.R., a Child
COA05
In a child-related appeal from the 301st District Court (Dallas County), the appellant’s brief became overdue. The Fifth Court of Appeals sent a delinquency notice directing the appellant to file a brief within ten days and expressly warning that failure to comply would result in dismissal under Texas Rule of Appellate Procedure 38.8(a)(1). The appellant neither filed a brief nor sought an extension or otherwise communicated with the court. Applying TRAP 38.8(a)(1) and its independent dismissal authority under TRAP 42.3(b) (want of prosecution) and 42.3(c) (failure to comply with a rule/court notice), the court treated the appeal as abandoned and dismissed it, leaving the trial court’s child-related orders in place.
Litigation Takeaway
"In Texas family-law appeals, missed briefing deadlines can end the case. If your brief is late, act immediately—file the brief and/or a motion for extension with a reasonable explanation before the court’s cure deadline. Silence after a Rule 38.8 delinquency notice is a fast path to dismissal for want of prosecution, even in child-interest cases."
In the Interest of M.Z. and M.C.Z., Children
COA05
In a Dallas County divorce after a 23-year marriage, the community estate included the husband’s executive deferred-compensation “performance units,” which would pay only upon future contingent events (e.g., IPO, dividend, sale) and could be forfeited. The only valuation evidence was uncontroverted expert CPA testimony that the units had no presently ascertainable fair market value as of trial, but were not worthless and could be divided in kind. The trial court nevertheless treated the units as 100% community property, awarded 100% of them to the husband, and assigned a $0 value in the just-and-right division. Applying the abuse-of-discretion framework with embedded legal-sufficiency review under Texas Family Code § 7.001, the Dallas Court of Appeals held that evidence showing “no current calculable FMV” does not support a finding of “no value,” and the record contained no affirmative evidence that the units were worthless. Because the performance units were a material portion of the community estate, the erroneous $0 valuation tainted the overall division. The court reversed the property division and remanded for a new, proper division of the community estate (affirming the divorce otherwise).
Litigation Takeaway
"Contingent does not mean worthless. If an asset can’t be reliably valued today (executive compensation, earnouts, carried interests, options), a court cannot simply assign $0 without evidence of actual worthlessness—especially if it awards the entire asset to one spouse. Build a record that either (1) proves worthlessness, or (2) supports a division-in-kind or other non-speculative mechanism, and tie any valuation error to overall “just and right” harm when the asset is material."
In re E.R.F.
COA04
In a parentage action, the alleged father nonsuited his petition and the trial court signed an order granting the nonsuit. Because the mother had not filed any counterclaim or other pleading seeking affirmative relief at the time of the nonsuit, the nonsuit extinguished the case. Under Rule 329b, the trial court’s plenary jurisdiction expired 30 days after the signed nonsuit order. The mother later filed a motion for temporary orders and the trial court held a hearing and orally announced temporary possession-and-access rulings, later reducing them to a written temporary order. The Fourth Court of Appeals held the trial court lacked jurisdiction to issue any substantive temporary possession/access orders after plenary power expired; both the oral pronouncements and the later written temporary orders were void. The court granted mandamus relief and ordered the void temporary orders set aside.
Litigation Takeaway
"A nonsuit is a hard jurisdictional stop: if the opposing party has not already filed a live claim for affirmative relief, the case is over and the court cannot issue post-dismissal temporary custody/possession orders once plenary power runs. To preserve (or obtain) temporary relief, get an affirmative counterclaim on file before the nonsuit—or file a new SAPCR/parentage case. Void post-plenary orders are immediately mandamusable without proving an inadequate appellate remedy."
Daniel Matthew Bible v. The State of Texas
COA03
In this criminal appeal with family-law crossover implications, the defendant challenged the legal sufficiency of the evidence supporting an indecency-with-a-child-by-contact conviction as to alleged “breast” touching. Although the complainant initially answered “No” when asked directly whether her breast was touched and described the contact as stopping at the “bra line,” the court reviewed the entire record under the Jackson v. Virginia legal-sufficiency standard and deferred to the jury’s role as factfinder. The jury saw the complainant demonstrate the hand movement across her chest and reviewed an admitted body diagram she highlighted to show the area touched. A forensic interviewer testified that the complainant’s “bra line” demonstration included the breast, and a forensic nurse explained that young children have breast tissue and that the highlighted area encompassed the breasts. Considering the demonstrations, diagram, and corroborating contextual evidence, the Third Court of Appeals held a rational juror could find breast contact beyond a reasonable doubt and affirmed the conviction.
Litigation Takeaway
"Don’t assume a witness’s damaging sound-bite answer (e.g., “No, he didn’t touch my breast”) defeats an abuse allegation when the testimony includes location descriptors (“bra line”), in-court demonstrations, and marked diagrams. Courts can treat demonstrative evidence—especially when supported by CAC/forensic interviewer and medical testimony—as enough to prove anatomically specific contact, and factfinders may credit that totality over semantic inconsistencies. In custody/protective-order litigation, build (or attack) the foundation and clarity of diagrams/gestures and the “translator” testimony that links imprecise language to legally significant anatomy."
In the Interest of Q.G., C.G., Z.G. and A.I.G., Children
COA05
In an appeal involving the interests of multiple children, the appellant failed to participate in key post-notice appellate steps: the appellant did not respond to the court’s inquiry about the reporter’s record and did not file an appellate brief. The Fifth Court of Appeals ordered the case submitted without a reporter’s record and set a firm briefing deadline. After the deadline passed, the court issued a delinquency notice giving a ten-day cure period and expressly warning that the appeal would be dismissed without further notice if no brief was filed. When the appellant still filed nothing and made no contact with the court, the court applied the Texas Rules of Appellate Procedure governing want of prosecution and noncompliance and dismissed the appeal.
Litigation Takeaway
"Child-related appeals can be lost on procedure: if you don’t secure the record, respond to court inquiries, and file your brief by the ordered deadline (or timely seek an extension), the court can—and will—dismiss the appeal for want of prosecution even after a single delinquency warning."
In re I.M.
COA03
In an original proceeding arising from Travis County, the relator sought mandamus relief from the Third Court of Appeals but provided a petition and/or record that did not affirmatively establish the prerequisites for extraordinary relief. Applying Texas Rule of Appellate Procedure 52.8(a) and the traditional mandamus standard (clear abuse of discretion and no adequate remedy by appeal), the court issued a one-sentence memorandum opinion denying relief because the relator failed to show entitlement to mandamus. The court’s summary disposition reflects strict enforcement of Rule 52’s briefing and record burdens and a refusal to reach the merits when the required elements are not demonstrated on the face of the petition and supporting record.
Litigation Takeaway
"Mandamus is not a second appeal: win or lose depends on the front-end work. If you cannot prove (with a complete, authenticated Rule 52 record and element-by-element briefing) both a clear abuse of discretion and why ordinary appeal is inadequate, the court may deny mandamus summarily—without addressing the underlying dispute."
In re Miranda Fredenberg
COA12
In a SAPCR modification case, the mother sought mandamus/prohibition arguing a retired visiting judge lost authority to act once the trial court’s plenary power expired because the assignment order carried forward only “until plenary power has expired.” After the modification order was signed, the visiting judge signed an income withholding order (IWO) after plenary power expired and scheduled/reset hearings on other post‑judgment motions. The Tyler Court of Appeals applied the mandamus standard (clear abuse of discretion and no adequate appellate remedy) and analyzed (1) the distinction between plenary power over the merits and the court’s continuing enforcement jurisdiction, and (2) the scope of the visiting judge’s assignment. The court held the post‑plenary IWO was not void because it functioned as an enforcement tool contemplated by the modification order and authorized by Texas Family Code § 158.102, which allows withholding to issue until support/arrearages are paid. As to other post‑judgment matters, the record did not show the visiting judge ruled on them outside his authority before the presiding administrative judge issued an amended assignment expressly granting authority to handle post‑judgment proceedings going forward. Mandamus and prohibition were denied.
Litigation Takeaway
"Plenary power expiring does not necessarily end a court’s ability to issue support-enforcement instruments like an income withholding order—especially when the final SAPCR order anticipates withholding and the Family Code authorizes it. If you plan to attack a visiting judge’s post‑judgment authority, you must build a precise record of what was signed and when, and move quickly because an amended assignment can prospectively cure assignment-scope problems."
In the Interest of T.C.C. and B.D.C., Children
COA05
After a bench trial, the judge orally rendered that Father would pay guideline child support based on minimum-wage net resources and reimburse Mother for the children’s portion of health-insurance premiums. The written final divorce decree signed shortly after trial contained lower child-support numbers and omitted any reimbursement obligation. Months later—after the trial court’s plenary power expired—Mother moved for a judgment nunc pro tunc to correct the decree to match the oral rendition. The Dallas Court of Appeals treated the dispute as a clerical “rendition-versus-entry” problem: because the reporter’s record showed the court had already rendered guideline child support on minimum-wage earnings and ordered premium reimbursement, the later written decree’s inconsistent numbers and omission were clerical mistakes in memorializing the judgment, not a new judicial decision. The court held the trial court could correct those clerical errors by nunc pro tunc at any time, and it affirmed the corrected child-support amounts and added medical-support reimbursement term. The court also dismissed Father’s challenges to unrelated provisions (protective order, conservatorship, homestead sale) for lack of jurisdiction because an appeal from a nunc pro tunc judgment reaches only the nunc pro tunc corrections, not issues that could have been appealed from the original decree.
Litigation Takeaway
"If the signed decree doesn’t match what the judge said on the record, a nunc pro tunc can fix true clerical discrepancies—even after plenary power expires—but it cannot be used to make new judicial changes. Also, appealing a nunc pro tunc order does not reopen the whole divorce; appellate review is limited to the corrections actually made, so missing the original appeal deadline can be fatal to other complaints."
In the Interest of C.R., a Child
COA04
In a Guadalupe County divorce, the mother alleged a history or pattern of family violence/abuse/neglect and sought to be appointed sole managing conservator with the father denied possession and access (or, alternatively, supervised access). A jury trial on conservatorship resulted in findings (under a preponderance standard in the charge) that the mother should be sole managing conservator and that the father should not be appointed a possessory conservator. At the charge conference, the father affirmatively stated he had “no objections.” The trial court then rendered a decree appointing the mother sole managing conservator and denying the father any possession or access, with findings that access would endanger the child and was not in the child’s best interest. On appeal, the father argued the preponderance instruction was unconstitutional because a no-access decree is “tantamount to termination” and should require clear-and-convincing evidence, and also contended the submission improperly asked the jury to decide an impermissible “term or condition” of possession/access under Tex. Fam. Code § 105.002(c)(2)(B). The Fourth Court treated both arguments as unpreserved jury-charge complaints: by stating “no objections,” the father waived charge error, and the court declined to apply fundamental-error review, noting that even in actual termination cases the Supreme Court requires preservation and that conservatorship orders—unlike termination—remain modifiable (distinguishing cases like *Stary* tied to protective orders). The court further concluded the jury was asked to decide conservatorship status (permissible), and because the jury refused to place the father in any conservatorship role, the trial court properly denied possession and access as a consequence of that status determination. The decree was affirmed.
Litigation Takeaway
"If a conservatorship submission sets up a potential “no access” outcome, you must preserve error at the charge conference—object to the burden of proof and the form of the questions and obtain rulings. Saying “no objections” will almost certainly waive appellate review, and courts will not rescue the issue by rebranding it as fundamental error or “de facto termination.”"
Payne v. Boyd
COA04
In Payne v. Boyd, a nonlawyer brother (Donald) attempted to prosecute a lawsuit for the named plaintiff (Darrell) based on a power of attorney arising from Darrell’s pending criminal matter. Defendants filed pleas to the jurisdiction asserting Donald lacked capacity and standing. The Fourth Court of Appeals distinguished capacity (a procedural defect that must be raised by verified pleading under Texas Rule of Civil Procedure 93) from standing (a jurisdictional requirement that can be raised by plea to the jurisdiction and is not waivable). Because defendants did not file a Rule 93 verified pleading, any capacity challenge was waived. But Donald still lacked standing because he pleaded no personal injury to himself and could not manufacture standing by claiming agency under a POA to assert Darrell’s constitutional/statutory claims. The standing defect deprived the trial court of subject-matter jurisdiction, and dismissal was proper without leave to replead because the defect was incurable as to Donald.
Litigation Takeaway
"A power of attorney is not a license to litigate. Even if the other side fails to preserve a Rule 93 verified “capacity” objection, you can still knock out proxy-driven filings by attacking standing with a plea to the jurisdiction—standing is nonwaivable and requires the filer to allege their own concrete injury. Preserve both: verified Rule 93 capacity challenge + plea to the jurisdiction on standing."