In Re Ruiz

the court orders of whether alleging Regardless has filed a motion State sup- in a of documents apparently notices been the inclusion these that two such record, di- asking clerk is plemental the clerk and the district district lost ac- clerk’s record supplemental what constitutes file this Court “determine rected to containing a missing the documents copies curate of of this Court with the Clerk 34.5(c). to be included the Id. Un- and order them court’s copy of the order. supplement.” of a making clerk’s record or the parties less waive the R.App. 34.5(e). P. Attached to the motion court hearing, the reporter’s record this copies outcry two notices which file a are of reporter prepare directed to file-stamp the of the dis- appear bear the supplemental reporter’s record of trict clerk. Id. the of this with Clerk Court. hearing 34.6(d). 13.1(a), supplemental records 34.5(e) procedure Rule sets out the to be the thirty days after shall filed within a document filed with followed whenever date this order. of trial been or the court clerk has “lost destroyed.” provides: Id. The rule

(e) Destroyed. Record Lost or Clerk’s designated inclusion in the filing

If a

clerk’s has been lost or de- record

stroyed, parties may, by written the

stipulation, deliver a of item to copy trial clerk inclusion in the court or a If the supplement.

clerk’s record Dionel RUIZ and Renee parties agree, cannot the trial court In re Bonfiglio Ruiz. or party’s must—on motion at the appellate court’s request —determine No. 10-00-174-CV. copy what constitutes accurate of missing and order it to be included item Texas, Appeals Court supplement. in the clerk’s record or a Waco. Id. May State, Camp’s counsel

According to the stipulate writing will inclusion copies

in the clerk’s record

outcry notices attached to motion.

However, this does not have Court

authority accuracy to determine the id.; see also id.

appellate record.

34.6(e). duty belongs this Rather court. Accordingly,

trial abate thirty days

cause for and direct whether the documents

court determine motion constitute

attached to State’s pleadings filed with the copies

accurate State, 34.5(e); Id Moss v.

district clerk. Worth —Fort h.). finds, pet. If so the court should the district

then court in sup these

clerk to include documents it record and file with the

plemental clerk’s Tex.R.App. P. of this Court. See

Clerk

34.5(e).

BACKGROUND appointing signed an order conservator temporary managing DPRS as juryA returned R.R. on of the recommending termination a verdict 28, March rights on 2000. parental Ruizes’ date, the follow- Respondent made On on the docket handwritten notation ing sheet:

Jury approximately returned verdict at of termination p.m. 7:15 Decree per jury’s as to parents entered both verdict, Strother, Judge T. Ralph /s/ Presiding. Swanton, Jr., T. Law Offices Robert substantially identical mo- Ruizes filed Jr., Swanton, Waco, relator Robert T. under to dismiss the suit section tions1 Dionel Ruiz. 263.401(a) Family Code on Waco, Hurley, for relator Re- John M. See Tex. Fam.Code 27. Ann. Bonfiglio nee Ruiz. (Vernon Supp.2000). Respon- on hearing May the matter for 2. dent set Atty., Segrest, John Criminal Dist. W. terminat- Respondent signed a final decree Wiley, Atty., Asst. James Criminal Dist. parental rights ap- ing the Ruizes’ interest, Dept, party real Texas permanent managing DPRS pointing as Regulatory Protective and Services. May 2. He conservator of R.R. on Gary Raymond Coley, & Co- Frederick denying dismissal mo- an order the Ruizes’ Waco, ley, attorney ad litem. days three tions later. OPINION RENDITION OF JUDGMENT DAVIS, Chief Justice. presented proceeding in this The issue docket notation Bonfig- above-quoted Dionel Ruiz Relators and Renee whether a final order suffi- lio Ruiz ask this Court a writ of constitutes rendition of to issue Respondent, one-year dismissal man- against mandamus the Hon- cient to avoid 263.401(a).2 That Strother, by statute Ralph Judge orable T. dated a suit County. 19th trial court to filed requires District Court of McLennan a dismiss Monday after the request Respon- by “on first Ruizes we order DPRS anniversary parent- of the date court affecting dent to dismiss suit first by temporary appointing relationship against filed them rendered temporary managing as conserva- Department Regulatory of Protective and [DPRS] “[ujnless (“DPRS”) has rendered a al- court because tor” Services an extension.” Tex. granted final order or failed to render a final order legedly 263.401(a). Monday the first by following case Fam.Code anniversary appointment of DPRS’s judgment A trial renders managing of their court

temporary conservator conditionally grant pronouncement of its decision daughter by R.R. We will oral or written memo- signed, court requested. open the relief hereinafter re- represented by separate The term "section” as used are The Ruizes Family Code unless fers to a section of counsel. indicated. otherwise (d)(4) randum filed with the clerk.3 S & A Res “final order.” Leal, Corp. taurant 263.401(d). v. The notation does not (Tex.1995) curiam). (per 857-58 To consti “grant” petition, DPRS’s nor does it “or rendition, tute pronouncement the court’s der” or “decree” that the Ruizes’ clearly “must indicate the intent to render rights be terminated. Balogh, 978 Cf. judgment at the time the words are ex 700; Giles, S.W.2d at Giles v. pressed.” Ramos, Balogh Worth —Fort 701 (Tex.App. Corpus writ). Rather, it — indicates the in court’s denied) Christi pet. (op. reh’g), tent to render a termination decree in the — denied, U.S.-, cert. 120 S.Ct. future. Intercoastal Warehouse Corp. Cf. (1999). 145 L.Ed.2d 57 affecting For suits Bank, Clear Lake Nat’l the parent-child relationship, Legisla 295-96 (Tex.App. [14th Dist.] —Houston provided ture has that rendition judg of 1990,writ w.o.j.); Formby’s dism’d KOA v. may ment accomplished by be a docket 428, BHP Supply Corp., Water 730 S.W.2d notation.4 See Tex. Fam.Code writ). 1987, 430-31 (Tex.App. no —Dallas (Vernon 1996). § 101.026 assuming Even that rendition aof Furthermore, 263.401(d) specifi- termination decree implied could be from cally defines what is required to constitute notation, writing the docket fails to a “final purposes order” for that of statute. appointment managing address the of a 263.401(d) (Ver- § See Tex. Fam.Code Ann. R.R., conservator which subdivision Supp.2000). non parties agree that (d)(4) requires in a “final order.” Tex. (d)(4) only subdivision potentially applies 263.401(d)(4). § DPRS Fam.Code Ann. 263.401(d)(4). § this case. Id. That does not requirements address the of sub subdivision defines a “final order” as one (d)(4) division in its response. The attor which parent-child “terminates the rela- ad ney argues litem for R.R. that tionship appoints and a relative of the docket notation nonetheless satisfies subdi child, person, another suitable or the de- (d)(4) because, vision “under the circum partment managing as conservator of the case, stances of this only party who child.” Id. could managing become conservator fol We have no pro record of an oral lowing the rights termination nouncement in this case. A See S & Res was disagree. [DPRS].” We Corp., Thus, taurant 892 161.207(a) provides pertinent Section the issue before us is Respon whether part: dent’s docket notation constitutes If judgment by parent- rendition of the court written memo terminates the randum. relationship The docket notation with to respect states both pertinent part, parents only living parent, “Decree of termination to or to the suitable, be entered to parents per jury’s appoint as both court shall competent adult, verdict.” This satisfy Department notation fails to ei of Protective and requirements ther of the Services, subdivision Regulatory a licensed child- judgment entry judg- Rendition of and judgment ters the written on the minutes of ment are nelius, Burrell, distinct actions. See Burrell v. Cor- the court. 570 S.W.2d at Oak 382, (Tex.1978); 570 S.W.2d 384 Oak Homes, Creek 758 S.W.2d at 290. Homes, Jones, 288, Creek v. 758 Inc. 1988, writ). 290 Judg- no —Waco contrary general 4. This is to the rule in civil usually go through stages: ments three rendi- standing cases that a docket notation alone tion, writing, entry. reduction to Oak judgment. does not constitute rendition of Homes, Creek 758 S.W.2d at 290. The trial Guillot, 345, v. McCormack 597 S.W.2d rendition, judgment. court renders its After (Tex.1980) (orig.proceeding); 346 Withrow v. prevailing party prepares the trial court or the 432, (Tex. Lloyds, State Farm 990 S.W.2d 435 judgment signed by a written which is 1999, denied). App. pet. —Texarkana signing, court. After the trial court clerk en-

925 (1949); 807, v. 811 DeWitt or an authorized 216 S.W.2d placing agency, agency 687, Brooks, 122, 128, of the Tex. managing conservator child.5 143 (1944). Bough, the concluded 691 court 161.207(a) (Vernon Tex. Fam.Code Ann. trial court: 1996). 161.207(a) finds its origin Section substantially en- in a similar statute first motion, and authority of its had the own Legislature in Act acted 1907. See (if application therefor absence 5, 1907, R.S., Apr. Leg., ch. approved 30th nei- it under the evidence deemed 1907 Tex. Laws 136 Gen. parent proper person ther was a (amended 1962) (current version at children), custody and control of the 161.207).6 Act any suitable award such provided pertinent part: person responsi- this disposed assume case, Upon hearing of such if the bility. child shall found to come within said Noble Bough, (quoting at 574 provinces of Section (Tex.Civ. Noble, 185 S.W. “dependent shall be adjudged act it writ)); accord App.—Austin child,” may be entered Haynes Haynes, disposition child as to the making of said dism’d). Civ.App. writ —Beaumont physi- court seems best for its moral and It turned may cal welfare. over the similari Because of substantial custody any care and of suitable and section ties between the 1907 statute any person or suitable institution in the 161.207, presume Legislature we county for organized pur- or State the stat intended for this construction of caring pose “dependent of children” County v. ute to See Ector continue. willing and which is able and to care for (Tex. Stringer, 477, n. 4 479 843 same. 1992); v. Paul & Marine Cooper St. Fire Id. (Tex. Co., 614, Ins. 617-18 985 1999, no v. App.- pet.); Blount statute, the 1907 of the Under version —Amarillo Dutton, 955, (Tex.App.— 967 S.W.2d 957 held trial Texas courts that “the court had 1998, pet.). Accordingly, we Beaumont no authority chil- award ap have Respondent conclude that could or person agency.” dren to suitable Ham, (Tex. person 826, pointed any agency suitable or 342 826 Moore writ) conservator, regard 1961, managing be R.R.’s Civ.App. (citing no —Amarillo filed 573, person agency Bough, less whether such or Bough v. 674 263 S.W.2d 1953, writ)); Civ.App. pleadings requesting appointment. no such Antonio ac- —San 161.207; Collins, 418, 424, Bough, 147 Tex. cord Davis See Tex. Fam.Code 1, (Austin Co.1912). 161.207(a) (1911), Printing § 5. We note that section contains a at 467 expansive listing of entities whom the more article without sub- Article became 2335 2189 appoint managing can trial court as conserva- change Statutes stantive Civil Revised 263.401(d)(4) tor than does section because 1925, 1, Sept. Act effective 39th of 1925. See (in appointment of addi- the former includes 2335, R.S., 1, Leg., § art. in Tex.Rev.Civ. Stat. DPRS) child-placing agen- "a licensed tion cy, (A.C. (1925), 1,§ 621-22 & Sons at Baldwin agency” an authorized while the or latter 1973, 1925). provision sec- this became Compare does not. 15.05(b) Family Title 2 of Code. tion (Vernon 161.207(a) 1996) § with Tex. Fam. 1973, R.S., 25, Leg., May Act ch. 63d (Vernon 263.401(d)(4) Supp. § Code Ann. 543, 1, 15.05(b), § Laws sec. 1973 Tex. Gen. However, 2000). because the docket notation 1411, (amended 1989) (current ver- 1428-29 appoints managing this case conserva- in 161.207). § sion at Tex. Fam.Code Ann. tor, purposes the distinction is irrelevant Legislature 2 and repealed the Title former proceeding. of this Act statute 1995. See enacted the current in 20, 1, 6, 1995, R.S., Leg., § Apr. 74th ch. Legislature 6 codified section 6. The 161.207, 2(1), Gen. Laws sec. 1995 Tex. Civil Act article 2189 of Revised 1907 113, Statutes, 217, of 1911. Revised 32d Statutes Leg., R.S., 1, 2189, art. in Tex.Rev.Civ. Stat. 574; Judgment” at a “Final Haynes, 263 S.W.2d 191 S.W.2d at 2, Noble, May days on six after 81; this case Dionel at 319. S.W. Ruiz filed his motion to dismiss.7 Assum- filed, ing no motion for new is ADEQUATE REMEDY AT LAW appeal Ruizes’ notice of would be due on Tex.R.App. 26.1(a). Settled law establishes that man Family P. June 1. appropriate appeals damus relief is to correct a Code mandates that such cases given precedence “be over other civil clear abuse of discretion when the Relator cases.” Tex. Fam.Code Ann. adequate remedy has no at law. Walker v. (Vernon Supp.2000). Assuming we treated

Packer, (Tex.1992) 827 S.W.2d an appeal such as an accelerated one for (orig.proceeding); Bishop, In re 8 S.W.3d timetables, appellate the remainder of the (Tex.App. orig. pro —Waco the record would be due on June 12.8 See denied]). ceeding [mand. This Court has Tex.R.App. 35.1(b). P. The Ruizes’ brief appropri determined that mandamus is an July would then be due on 3 and DPRS’s ate vehicle for enforcement of section (b). 38.6(a), If July brief on Id. 263.401 because relators in such a case twenty-one days’ shortened the usual no- no adequate legal remedy by which days, the appeal tice for to two submission they can timely compli otherwise obtain argued July which is more would be ance with the Bishop, statute. the date on than two months later than Neal, accord In re argued which proceeding was [1st Dist.] —Houston more than three months later than denied]). orig. proceeding [mand. provided dismissal date 263.401(a). 38.6(d), inap- DPRS contends that 39.9.9 mandamus is propriate appeal this case because “legisla- Bishop, As we observed “immediately available” to the Ruizes carry ture enacted to out [section 263.401] which they question pre- can assert the of the Governor’s recommendation distinguishes Bishop sented. DPRS our rights that be termi- Committee decision, in which held that the relators we nated or families reunified within twelve had no adequate remedy by appeal, on the months.” 8 S.W.3d at 417. To Bishop, rul- Bishop pre-trial basis involved a accomplish purpose, section 263.401 ing. Bishop, at 415-16. S.W.3d We trial on the expressly requires not that the reject this distinction. When the Ruizes months after merits be had within twelve to respective filed their motions dismiss appointment temporary manag- DPRS’s 263.401(a), Respondent conservator, had under section ing that a “final order” be but period. no discretion but to dismiss suit. “rendered” within that Tex. Fam. 263.401(a). § Ann. at 419. Code lengthy day a usually 7. We leave for another the issue of wheth- as such will involve more See, party position er a in the Ruizes' who fails to e.g., record. sign- seek dismissal of the suit until after the 56.01(h) (Vernon 1996) following (appeal ing a order can have final be held to juvenile adjudication child removed in which right forfeited to mandamus relief. home), 109.002(a) (appeal from custo- from reason, determination). may dy For this it assuming, appeal given prece- 8. Even so an expect to trial court clerk unreasonable by dence statute is the same as an acceler- not pre- reporter and court to have the record appeal. Compare ated P. 28 with Tex.R.App. days pro- pared in such cases within the 10 109.002(a) (Vernon Tex. Fam.Code interlocutory appeals. vided for Supp.2000); 40.1. Accel- but P. Tex.R.App. cf. appeals generally interlocutory erated involve See, 9.Again an accelerated we note that such e.g., orders with a limited record. Tex 28.1; given highly unlikely would be timetable P. R.App. & Tex. Civ. Prac. Rem.Code Ann. 51.014(a) (Vernon appellate Supp.2000). delays frequently On the other which occur hand, gen- appeals given statutory precedence process. erally following a and arise trial on the merits asserting grounds file the case same speedy “Justice demands a resolu originally alleged. child support of child termination as tion However, Bishop, at 416 it is (quoting Bishop, at 420. issues.” 8 S.W.3d (Tex. Yates, R.R. keep that DPRS can equally not clear Proffer 1987) (orig.proceeding)). Supreme supporting in foster absent new facts care that an recognized appeal Court home. removal from the Slatton Proffer Cf. frequently protect to inadequate “is Unit, 804 County Brazoria Prot. Servs. rights parents and children” these 552-53 S.W.2d —Texarkana 673; Proffer, 734 at accord cases. writ) (res judicata in ter- applies 416. Bishop, Applying 8 S.W.3d at these State); mination instituted cases legis to Ruizes’ case principles County v. Cameron Child see also Martin 263.401, purpose lative for section we be Unit, 37-38 Welfare appeal that an inadequate lieve obtain n.r.e., Antonio), Civ.App. writ —San refd compliance timely with the statute. See (1959) (per 160 Tex. 329 S.W.2d 83 Neal, 4 Bishop, 8 S.W.3d at curiam) custody of entitled to (parents parental rights after in which terminated). ABSURD RESULT Slatton, light conclude Both the ad litem DPRS and con her again DPRS cannot remove R.R. from tend that it to apply would be absurd home or her in foster care absent keep plain language to this support new which removal under facts the jury’s case because verdict would be chapter Family According Code. aside, DPRS have to set would re-file its sheet, Respondent’s docket DPRS re- petition, and R.R. potentially would have moved her home on or about R.R. from spend up eighteen additional months tempo- care awaiting foster second trial and rary April 6 DPRS as appointing orders on judgment. temporary managing sup- conservator. To will plain We decline to follow the removal, port subsequent DPRS must meaning of following statute when rely warranting which facts removal produce letter of the law would absurd adversary hearing after the occurred Tex., Fleming result. See Foods Inc. v. held on 1999. To hold otherwise (Tex.1999); Rylander, 6 S.W.3d 284 263.401(a) meaning- would render section 8 The Bishop, pur S.W.3d at 418. clear less DPRS would to permitted because be pose of section dictates pa 263.401 “that custody maintain of a in its care rights rental be terminated or reu families by annually re-filing indefinitely merely Bishop, nified within twelve months.” 8 clearly pur- contrary suit. This is to at 417. a “final Because order” pose Bishop, the statute. See timely rendered, not was termination see also Tex. Gov’t Code parental rights the Ruizes’ was not com 1998) (when (Vernon construing § 312.005 plete purposes for statute. See statute, all times court “shall consider at 263.401(a). Thus, R.R. evil, law, remedy”). the old and the family be her if we must reunited with an conclude dismissal is not “absurd reasons, ap- For these we conclude that result.”10 plying plain language of section 263.401(a) an already produce have that a dis- in this case does not We determined Rather, is man- missal under section without absurd result. statute able re- dates that R.R. must be reunified with her prejudice, so DPRS would be to Bonfiglio apparently cation Ruiz. 10. Because Dionel Ruiz is incar- with Renee cerated, necessarily mean this would reunifi- 928

family Proffer, parent failed to ren- In and child had because DPRS obtain timely jurisdiction a “final in a man- moved to another and the dition of order” Roy original jurisdiction court of was required ner. See 5 W. G. McDonald Elaine & (2d jurisdiction. CaRlson, to the Texas Civil PRACTICE 27:9 to transfer case new ed.1999) (disputes concerning exception rendition of The thrust behind Proffer unnecessary unnecessary and of an trial in child judgment “are reflect avoidance in judge prevailing custody more on the trial and the cases. the cases which this procedure”). allowing than court has cited counsel rules of Proffer mandamus, Accordingly, conditionally grant parties pursue by the re- relief we avoiding an tri- quested unnecessary writ of mandamus. The writ will were likewise Verbois, only Respondent sign if al. In re 10 issue fails S.W.3d 825 dismissing by App. orig. proceeding); the suit filed DPRS no In re —Waco 412 p.m., May Bishop, (Tex.App. later than 5:00 —Waco Simonek, orig. proceeding); In re dissenting. Justice GRAY orig. S.W.3d 285 —Waco Sanchez, proceeding); In re GRAY, Justice, dissenting. 1999, orig. proceeding). (Tex.App.—Waco adequate Because the Ruizes have an case, However, in already there has remedy I by appeal, disagree with already trial. jury been a has deter- grant of the mandamus. conditional writ of rights mined that the Ruizes’ requirement mandamus will not should terminated. The trial court has be remedy adequate issue where there is an already signed an order of termination. by appeal is well-settled. v. Pack- Walker allowing by relief manda- The reason for (Tex.1992). er, Man- in simply mus does not exist this case. extraordinary damus is intended to be an remedy, jury’s only available limited circum- The order based on the verdict only days stances and will issue situations was the trial court five involving urgent necessity. the Ruizes filed their mandamus manifest before “adequate They An action. exception remedy to the demonstrated by appeal” requirement they “adequate was rec- reason that do not have an Walker ognized by remedy by appeal” required by the Texas Supreme Court Walker. observed, They remedy by appeal, adequate The Court have an Proffer. therefore, should be this mandamus right Parents and children who have a denied.1 mandatory provision under the venue particular county venue should not go through that is forced

naught speedy demands a res- Justice sup-

olution of child and child

port issues. Yates,

Proffer 1987) added). (emphasis result, analysis not or discussion of issues includ- 1. Because I believe mandamus should considered, granted, ing many this court in less I will not of which are before much disagreement proceeding. my substantial with the discuss

Case Details

Case Name: In Re Ruiz

Court Name: Court of Appeals of Texas

Date Published: May 25, 2000

Citation: 16 S.W.3d 921

Docket Number: 10-00-174-CV

Court Abbreviation: Tex. App.