Second Court of Appeals

Summaries of Civil Opinions and Published Criminal Opinions Issued - Week of May 21, 2018.

NOTE: Summaries are prepared by the court's staff attorneys and law clerks for public information only and reflect his or her interpretation alone of the facts and legal issues. The summaries are not part of the court's opinion in the case and should not be cited to, quoted, or relied upon as the opinion of the court.

Links to full text of opinions (PDF version) can be accessed by clicking the cause number.

In re E.D., No. 02-16-00448-CV (May 24, 2018) (Sudderth, C.J., joined by Walker, Kerr, and Pittman, JJ.) (Birdwell, J., dissenting, joined by Meier and Gabriel, JJ.).

Held:  Recognizing that there are significant and troubling irregularities in the record before us, Mother’s motion for new trial, filed 66 days after the date the judgment was signed, was untimely.  Because alternate service was not ordered or affected under rule 109a—which would have extended Mother’s deadline to file her motion for new trial to two years following the judgment—Mother’s motion for new trial, which was filed after the applicable 30-day deadline, was untimely.

Dissent:  As a result of the significant and troubling irregularities in the record—including a judgment nunc pro tunc issued wholly in violation of rule 316—the trial court effected an almost 180-degree change of possession and access of a child under the age of three from Mother to Father without considering or implementing the safeguards in Texas Family Code section 153.254, when less than two years earlier, the trial court had denied all possession and access to Father because it found he had engaged in a history or pattern of family violence.  In analyzing whether Mother is entitled to the extended jurisdictional timetable allowed by rule 109a, we should consider the substance rather than the form of Father’s motion for substituted service. That motion indicates that he sought alternate service via the method set forth in rule 106(b) but for the reason set forth in rules 109 and 109a––Mother’s location was unknown to him. Because Father sought and was granted substituted service on that basis, we should apply the two-year notice of appeal deadline, rather than denying it to Mother because Father and the trial court did not properly seek and effectuate service under those rules.