Full Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-26-00515-CV ___________________________ IN RE TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Relator Original Proceeding 362nd District Court of Denton County, Texas Trial Court No. 25-5620-362 Before Birdwell, Bassel, and Walker, JJ. Memorandum Opinion by Justice Walker MEMORANDUM OPINION On the court’s own motion, we withdraw our prior opinion of August 13, 2026, and substitute the following in its place. Our judgment remains unchanged. Relator, the Texas Department of Family and Protective Services, seeks a petition for writ of mandamus to compel the trial court to vacate its order extending the dismissal deadline in this Chapter 262 suit affecting the parent–child relationship to October 26, 2026, under Section 263.401(b) of the Texas Family Code. The Department maintains that the trial court was prohibited from extending the dismissal deadline to that date because it had already set the deadline to August 31, 2026, after a failed monitored return under Section 263.403(c) of the Texas Family Code. The Department asserts that if the trial court proceeds to trial on October 12, 2026, as it currently plans to do, instead of commencing trial before the dismissal date required by Family Code Section 263.403(c), it will do so after having lost its jurisdiction. We agree with the Department and conditionally grant relief. I. BACKGROUND The Department filed its original petition on June 6, 2025, and obtained temporary orders appointing it as the children’s temporary managing conservator on the same date. Under the Texas Family Code, the initial dismissal date is “the first Monday after the first anniversary of the date the court rendered a temporary order 2 appointing the department as temporary managing conservator.” Tex. Fam. Code § 263.401(a). Accordingly, June 8, 2026, was the initial dismissal date.1 On December 9, 2025, based on a November 20, 2025 hearing, the trial court signed an order for monitored return. See id. § 263.403. The trial court ordered two of the children to be placed in Mother’s home on November 24, 2025, and ordered the remaining two children placed in her home on December 19, 2025. The Texas Family Code requires that when signing an order for monitored return, the trial court set a new dismissal deadline “not later than the 180th day after the date the temporary order is rendered.” See id. § 263.403(b)(2). In our case, citing Section 263.403(b), the trial court specified that the new dismissal date would be May 19, 2026. This date was earlier than the original Section 263.401(a) dismissal deadline, but the order noted that the deadline would change if the Department removed the children from the monitored return before May 19, 2026. On March 10, 2026, the trial court signed a notice of removal from monitored return. Citing Section 263.403(c), the trial court set August 31, 2026, as the new dismissal deadline.2 Id. § 263.403(c). 1 The Department states that May 8, 2026, was the initial dismissal date, but it cites Section 263.401(a). This date appears to be a typo. 2 The Department appears to assert that the trial court was compelled under Section 264.403(c) to extend the deadline the full 180 days, which would have extended it to September 6, 2026. The Department has not asked us to review this discrepancy between what the order provides and what the Department contends it should have provided. 3 The trial court set the case for trial on August 17, 2026, and Mother filed on July 1, 2026, a motion for continuance and for extension of the dismissal deadline. Father filed a comparable motion on July 6, 2026. On July 28, 2026, the trial court signed an order extending the dismissal deadline to October 26, 2026—under Section 263.401(b)—and setting the trial for October 12, 2026. See id. § 263.401(b). The Department responded by filing this petition. II. DISCUSSION A. STANDARD OF REVIEW Mandamus relief is an extraordinary remedy. In re Acad., Ltd., 625 S.W.3d 19, 25 (Tex. 2021) (orig. proceeding). The party seeking mandamus relief must show both that the trial court clearly abused its discretion and that the party has no adequate remedy by appeal. In re Allstate Indem. Co., 622 S.W.3d 870, 875 (Tex. 2021) (orig. proceeding). B. THE DISMISSAL DEADLINE AND EXTENSION STATUTES When the Department files a suit affecting the parent–child relationship that requests termination of the parent–child relationship or requests that the Department be named conservator of the child, it must prosecute its case diligently or its suit will be automatically dismissed without court order on the first Monday after the first anniversary of the date the court rendered a temporary order appointing the Department as temporary managing conservator. Tex. Fam. Code § 263.401(a). 4 Upon certain findings, Section 263.401(b) allows for an extension of the dismissal date not to exceed 180 days. Id. § 263.401(b) (allowing 180-day extension upon findings that extraordinary circumstances warrant child’s remaining in Department’s temporary managing conservatorship and continuation is in child’s best interest). The extension must occur before the automatic dismissal date. In re C.S., No. 25-0008, 2026 WL 1614382, at *1 (Tex. June 5, 2026). But if at some point during the proceedings the trial court orders a monitored return, Section 263.401 no longer governs the dismissal deadline; Section 263.403 does. See Tex. Fam. Code § 263.403; In re L.C.C., 667 S.W.3d 510, 515–17 (Tex. App.—Eastland 2023, pet. denied). Section 263.401 does not, however, become irrelevant. One of Section 263.403’s subsections looks at what had previously been done under Section 263.401 to determine what may be done under Section 263.403. See Tex. Fam. Code § 263.403(a-1) (permitting six-month extension for “transition monitored return” so that parent can complete service plan under Section 263.403(a)(2)(B) but only if an extension under Section 263.401(b) had not previously been granted), (c) (providing original dismissal date under Section 263.401 as possible dismissal date if applicable). Section 263.403 contemplates two types of monitored returns during which the Department remains the child’s temporary managing conservator: a monitored return in which the Department immediately returns the child to a parent’s care or a “transition monitored return” in which the child’s care is transitioned from substitute 5 care to a parent’s care, according to a schedule, “while the parent completes the remaining requirements imposed under a service plan and specified in the temporary order that are necessary for the child’s return.” Id. § 264.403(a)(2). For either type of monitored return, Subsection (b)(2) requires the trial court to set a new dismissal date not later than the 180th day from the order directing the monitored return. Id. § 263.403(b)(2). If either type of monitored return fails, Section 263.403(c) requires the trial court to set yet another dismissal date: “The new dismissal date may not be later than the original dismissal date established under Section 263.401 or the 180th day after the date the child is moved or the order is rendered under this subsection, whichever date is later.” Id. § 263.403(c) (emphasis added). C. APPLICATION The record shows that when the monitored return failed, the Department removed the children, and the trial court set a new dismissal deadline as required by Section 263.403(c) of the Texas Family Code. See id. The new date—August 31, 2026—was after the original June 8, 2026 Section 263.401(a) dismissal date but failed to take advantage of the full 180 days after the March 10, 2026 removal date. On July 28, 2026, the trial court extended the dismissal deadline under Section 263.401(b). The issue presented requires that we construe the applicable statutes. Statutory construction presents a legal question that we review de novo. L.C.C., 667 S.W.3d at 516. 6 Once the trial court orders a monitored return, Section 263.403 governs the dismissal deadline. See Tex. Fam. Code § 263.403(b), (c); L.C.C., 667 S.W.3d at 515– 17. Although Section 263.403(a-1) and (c) reference the original Section 263.401(a) dismissal date, Section 263.403 does not provide that the parties may thereafter rely on Section 263.401(b) to further extend the suit’s dismissal deadline. See Tex. Fam. Code § 263.403(c); L.C.C., 667 S.W.3d at 517. We therefore hold that the trial court abused its discretion by further extending the dismissal deadline based on Section 263.401(b). We also hold that the Department has no adequate remedy at law, such as an appeal, because, based on the trial court’s March 10, 2026 order, the Department’s case will be dismissed automatically before the October 12, 2026 trial setting if the trial court does not commence trial before the dismissal date contemplated by Section 263.403(c).3 See Tex. Fam. Code § 263.401(a); In re Tex. Dep’t of Protective & Regul. Servs., 71 S.W.3d 446, 448 (Tex. App.—Fort Worth 2002, orig. proceeding). The present October 12, 2026 trial setting would thus deprive the Department of presenting its case. III. CONCLUSION We conditionally grant the Department’s petition for writ of mandamus and instruct the trial court to vacate its July 28, 2026 order extending the dismissal The Department maintains the dismissal date should be September 6, 2026. 3 We do not have to resolve that dispute in this proceeding. 7 deadline.4 Only if the trial court fails to comply with our instructions will we issue a writ. /s/ Brian Walker Brian Walker Justice Delivered: September 24, 2026 We do not understand the Department’s petition to complain about the trial 4 court’s granting Mother’s and Father’s motions for continuances. 8