Wednesday, December 7, 2011

Immediate appeal of temporary orders not available in SAPCR cases

Houston Court of Appeals again dismisses a premature appeal, holding that unlike temporary injunction orders in civil cases, temporary orders in family law cases governed by the Texas Family Code cannot be challenged in an interlocutory appeal.


Appellant [in family law case - name omitted] filed her initial brief on August 15, 2011 and her amended brief on October 11, 2011. Neither brief complies with Texas Rule of Appellate Procedure 38.1. Specifically, neither contains "a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex. R. App. P. 38.1(i). The appendix does not comply either. See Tex. R. App. P. 38.1(k)(1).

The briefs fail to identify any error; they simply request a different result. See Tex. R. App. P. 38.1(f), (j). It does not appear that Appellant sought the clarifications and modifications of the agreed orders that she requests in her brief from the trial court in the first instance. As a court of appeals, we may only review the trial court’s judgments or other rulings as permitted under statute; we cannot undertake the duties assigned to the trial court. See Tex. R. App. P. 43.2 (limiting courts of appeals to affirming, modifying, reversing, or vacating trial court judgment, or dismissing appeal); see also In re B.L.D., 113 S.W.3d 340, 350 (Tex.2003) ("Requiring parties to raise complaints at trial conserves judicial resources by giving trial judges the opportunity to correct an error before an appeal proceeds.") (citing In re C.O.S., 988 S.W.2d 760, 765 (Tex.1999)).

Appellant’s first brief addresses the trial court’s agreed order in suit to modify the parent-child relationship signed on October 13, 2010. Her amended brief addresses recent agreed temporary orders signed August 2, 2011, which are contained in a recently filed supplement to the clerk’s record. Those temporary orders address the same subject matter and thus appear to supersede the earlier agreed order at issue in this appeal. The Texas Family Code specifically precludes the interlocutory appeal of temporary orders in suits affecting the parent-child relationship. See Tex. Fam. Code Ann. § 105.001(e) (West 2008); see also Tex. Fam. Code Ann. § 6.507 (West 2006) (specifically precluding interlocutory appeal of temporary orders, except those appointing receiver); Mason v. Mason, 256 SW3d 716, 718 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (citing Marley v. Marley, No. 01-05-00992-CV, 2006 WL 3094325, at *2 (Tex. App.—Houston [1st Dist.] 2006, pet. denied) (mem. op) (holding that section 51.014(4) of Civil Practice and Remedies Code permitting appeals from temporary injunctions did not control over statutory prohibition of interlocutory appeals from temporary orders in Family Code). Because Appellant has not identified any issue over which this Court can exercise jurisdiction, we dismiss this appeal.


Panel consists of Chief Justice Radack and Justices Bland and Huddle.

01-10-00966-CV - 12/1/11

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