In THE INTEREST OF A.C.T.M., a CHILD v. the State of Texas

          Supreme Court of Texas
                            ══════════
                             No. 23-0589
                            ══════════

                 In the Interest of A.C.T.M., a Child

   ═══════════════════════════════════════
               On Petition for Review from the
     Court of Appeals for the Thirteenth District of Texas
   ═══════════════════════════════════════

                            PER CURIAM

      After the trial court terminated Mother’s parental rights, the
court of appeals dismissed her appeal for lack of jurisdiction on two
separate occasions.    In this Court, Mother challenges the court of
appeals’ dismissal.    Respondent, the Department of Family and
Protective Services, agrees with Mother that the court of appeals had
jurisdiction over the appeal, and it contended as much before that court.
The Department thus confesses error in the judgment.
      We agree with Mother and the Department. As the Department
has confessed error, we reverse the judgment of the court of appeals
without requesting further briefing or hearing argument. We remand
the case to the court of appeals to address Mother’s issues on the merits.
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      In July 2022, the presiding associate judge ordered the
termination of Mother and Father’s parental rights. 1 Mother timely
requested a de novo hearing before the trial court. The trial court orally
pronounced that it would affirm the associate judge’s ruling, and on
October 24, 2022, Mother noticed her appeal.          Mother’s notice was
premature because the trial court did not sign a written order of
termination until November 8, 2022.
      Neither the parties nor the appellate court supplemented the
clerk’s record to include the trial court’s two-page November order.
See ___ S.W.3d ___, 

, at *3 (Tex. App.—Corpus
Christi–Edinburg June 15, 2023). Relying on the absence of this order,
the appellate court dismissed Mother’s appeal for lack of jurisdiction,
holding that “there is no final, appealable order” that conferred
appellate jurisdiction. See In re A.C.T.M., No. 13-22-00517-CV, 

, at *1 (Tex. App.—Corpus Christi–Edinburg Jan. 5, 2023, no
pet.). The court of appeals recited that the district clerk had informed
the appellate clerk that there were “no signed orders or judgments
memorializing the trial court’s October 24, 2022 oral pronouncement.”2

 The appellate court advised Mother that an appealing party “must


      1 The child’s father has not appealed to this Court.         Only the
termination of Mother’s rights is before us.
      2 The record does not provide details about the date or nature of these

communications, but courts of appeals are instructed to cure record defects
under Texas Rule of Appellate Procedure 34.5(d). TEX. R. APP. P. 34.5(d)
(“[T]he appellate clerk must inform the trial court clerk of the defect or
inaccuracy and instruct the clerk to make the correction.”).




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file a new notice of appeal” once the trial court rendered “a final
judgment or order adopting the associate judge’s recommendation.” 

       Two weeks later, after the court of appeals issued its first opinion
and judgment, the trial court signed a second order terminating
Mother’s parental rights. Unlike the November order, the eight-page
January order named a managing conservator for the child and included
the statutorily mandated instructions notifying Mother of her right to
an appeal.3 See TEX. FAM. CODE § 161.207(a); id. § 263.405(b). Mother
again filed a notice of appeal, this time within twenty days of the trial
court’s January order.
       In an about-face, the appellate court informed Mother in May that
her appeal from the January order was untimely because, in its view,
the November order was the relevant final order and had been from the
start. The court gave Mother ten days to “cure” the defect in what it
deemed was (1) her untimely notice of appeal from the final November
order and (2) an ineffective appeal from the January order because the
trial court had lost plenary power, rendering the January order void.
___ S.W.3d ___, 

, at *1, *4.                Mother and the
Department both responded, with the Department conceding that the
court of appeals had jurisdiction over the case.
       Though the parties urged that the court of appeals possessed
jurisdiction, the court nevertheless dismissed Mother’s second appeal.
Id. at *4. The court concluded that the trial court’s January order was
void because the trial court had lost plenary power following the final


       3 The two-page November order purports to include a complete final

judgment as an attached “Exhibit A,” which is not part of the record.




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November order. See TEX. R. CIV. P. 329b(d). Docketing Mother’s second
appeal under a new appellate case number, the court held that Mother
could not appeal from a void order. ___ S.W.3d ___, 

,
at *4 (citing Freedom Commc’ns, Inc. v. Coronado, 

(Tex. 2012)). The court of appeals further held it would not relate
Mother’s second notice of appeal back to the November order because
her second notice of appeal was untimely for that order. 

 (citing TEX.
R. APP. P. 26.1(b), 28.1(b), 26.3, and Verburgt v. Dorner, 

 (Tex. 1997)).       The dissenting justice would have exercised
jurisdiction over the appeal, holding that the January order was the trial
court’s final order. Id. at *4-6 (Benavides, J., dissenting) (illustrating the
incompleteness and lack of finality of the November order).


                                     II

       We review de novo the court of appeals’ dismissal for lack of
jurisdiction. In re Jones, 

, 924 (Tex. 2021). Mother’s
January appeal was timely if the trial court’s January order was the
final order, and the dissenting justice provides convincing arguments
that it was. Even accepting the court of appeals’ majority opinion that
the November order was the final order, however, Mother had appealed
from it. Mother timely noticed her appeal from both orders and timely
sought to invoke the appellate court’s jurisdiction from both. The court
of appeals erred in declining to exercise jurisdiction.
       Generally, a party must perfect its appeal by filing a written
notice of appeal within thirty days—or twenty days for accelerated
appeals like this one—after the judgment is signed. TEX. R. APP. P.




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26.1(b). A prematurely filed notice of appeal, however, “is effective and
deemed filed on the day of, but after, the event that begins the period
for perfecting the appeal.” TEX. R. APP. P. 27.1(a). Mother filed her first
appeal after the oral pronouncement but before the trial court signed
the November order.       Under Rule 27.1(a), this premature filing
successfully invoked the jurisdiction of the appellate court.       If the
November order is the final order, then the court of appeals should have
accepted Mother’s original, early appeal.
      That the November order was not included in the record of
Mother’s original appeal presents a record defect, not a jurisdictional
defect. See TEX. R. APP. P. 25.1(b), 34.5(d). Mother’s appeal effectively
invoked the jurisdiction of the appellate court because it was a timely
filed bona fide effort to invoke the court’s jurisdiction. See In re J.M.,

 (Tex. 2013) (“The primary ‘factor which determines
whether jurisdiction has been conferred on the appellate court is . . .
whether the instrument was filed in a bona fide attempt to invoke
appellate court jurisdiction.’” (quoting Warwick Towers Council of Co-
Owners v. Park Warwick, L.P., 

 (Tex. 2008)). Under
the rules of appellate procedure, a court of appeals must direct the trial
court to supplement a defective record before dismissing a case for lack
of jurisdiction. TEX. R. APP. P. 34.5(d). The court of appeals appears to
have done so here—according to the court’s first opinion, the clerks of
the trial and appellate courts communicated about whether the trial
court issued a final order. A.C.T.M., 

, at *1. The court
relied on these communications to hold that there was no final order.




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       This appeal, however, arises from Mother’s January notice of
appeal. The court of appeals should have exercised jurisdiction despite
its conclusion that Mother’s January notice of appeal was untimely for
the November order.       Mother’s first notice of appeal in November
sufficed to invoke the court’s jurisdiction over the November order. The
parties and the trial court carried out the court of appeals’ mandate to
finalize what the court of appeals later determined was already final.
Filing a new notice of appeal under the court’s instructions did not
nullify Mother’s November notice of appeal once the court of appeals
reversed course and resurrected that appeal.          The court of appeals
directed Mother to file a new notice of appeal after the trial court’s
plenary power would have ended under the November order.4 See 

She followed those instructions. The court of appeals’ reversal of course,
not mother’s actions, resulted in these extraordinary events. Mother did
not relinquish her appellate rights by following the court’s instructions.
       Under its later reasoning, the court of appeals’ first dismissal of
the appeal was error because the first appeal was later determined to
be, in fact, a timely appeal of a final order. An obdurate reading of the
appellate rules deprived Mother of her appellate rights despite a notice
of appeal from both orders. Given the constitutional protections afforded


       4 The court of appeals properly gave Mother an opportunity to cure the

no-final-order defect during her first attempted appeal, which is required
before dismissing for a procedural defect. TEX. R. APP. P. 44.3. The court of
appeals recognized no final order at the time of its first dismissal. A.C.T.M.,

, at *1 (“[I]t appears there is no final, appealable order.”).
Mother’s appeal in January was an attempt to cure the defect recognized in
her first dismissal. Her attempt was made in good faith and should be given
effect.




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to parents whose parental rights are in jeopardy, rejecting Mother’s
second appeal after an erroneous first rejection in this manner
implicates her due process rights.5 See In re K.M.L., 

 (Tex. 2014) (Lehrmann, J., concurring) (collecting authorities
discussing due process protections in parental-rights cases).
       This case is like Briscoe v. Goodmark Corp., 

 (Tex.
2003). In Briscoe, the court of appeals rejected a first appeal because
there was no final judgment and later rejected a second appeal, holding
that a final order was present at the time of the first appeal after all. 

. The second appeal was untimely according to that original final
order, so the court of appeals held it lacked jurisdiction over the second
appeal. 

 While recognizing that the court of appeals had the power
to correct its erroneous first rejection of the appeal, our Court observed
that the correction did “not mean that the court of appeals was correct
in dismissing [the second] appeal for want of jurisdiction. As incorrect
as that [first] decision was, as a matter of law, the judgment was then
interlocutory,” and the appellant “did everything that he possibly could
to preserve his appellate rights.”           

.       Recognizing the


       5 This Court has recognized appellate jurisdiction to avoid due process

implications where an appellant follows erroneous instructions from a
governmental body. Mosley v. Tex. Health & Hum. Servs. Comm’n, 

, 254 (Tex. 2019). In Mosley, an administrative law judge sent a party a
letter explaining that she had thirty days to petition a district court for review.
Id. at 255. The appellant “did exactly as the letter and rule directed . . . only
to be informed that in so doing she had failed to exhaust her administrative
remedies and was not entitled to judicial review.” Id. at 268. We reinstated
the party’s administrative case. Id. at 269. That decision was informed by the
party’s detrimental reliance on the agency’s instructions. Similarly, here,
Mother and the trial court relied on the appellate court’s instructions in its
first opinion dismissing the appeal.




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“oft-repeated position that a party should not lose the right to appeal
because of an ‘overly technical’ application of the law,” this Court held
that “the court should have asserted jurisdiction over [the appellant’s]
second appeal and considered his issues on the merits.” Id. (quoting
Lehmann v. Har-Con Corp., 

 (Tex. 2001)).
      Similarly, in this case, it is hard to see what more Mother could
have done to invoke her appellate rights. The November order became
effectively interlocutory after the Court rejected Mother’s first appeal on
that basis. Mother, following the directive of the court of appeals in its
first opinion, appealed again after the trial court issued its January
order. Like the appellant in Briscoe, Mother did everything she could to
invoke appellate jurisdiction. The court of appeals should have reached
the merits of her claim. See Horton v. Stovall, 

, 567 (Tex.
2019) (“Rather than disposing of appeals based on harmless procedural
defects, ‘appellate courts should reach the merits of an appeal whenever
reasonably possible.’” (quoting Perry v. Cohen, 

 (Tex.
2008))); Blankenship v. Robins, 

 (Tex. 1994).


                              *     *      *

      Mother timely noticed her appeal from both judgments under
consideration by the court of appeals. The court of appeals erred in
rejecting jurisdiction after Mother relied on the appellate court’s ruling
rendering her initial appeal interlocutory. The Department confesses
error in the judgment. Without requesting briefing on the merits or
hearing oral argument, see TEX. R. APP. P. 59.1, we grant Mother’s




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petition for review, reverse the judgment of the court of appeals, and
remand this case to the appellate court for further proceedings.

OPINION DELIVERED: December 29, 2023




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