In a split decision, the Fourteenth Court of Appeals decided that the appellate deadlines for a bill of review to set aside a decree terminating parental rights should be those applicable to ordinary, rather than accelerated, appeals. In the Interest of A.A.S., No. 14-11-00489-CV (Tex. App. - Houston [14th Dist.] May 10, 2012, n.p.h.).
The appeal came about because a child's mother knew how to contact the father but concealed that information from the Texas Department of Family and Protective Services when the Department filed a petition to terminate the father's parental rights. Consequently, the Department served the father by publication. A year later, the father learned of the termination. Because the time for appeal had passed, the father filed a bill of review. A bill of review is an equitable proceeding to set aside a prior judgment that no longer can be challenged by a motion for a new trial or by direct appeal.
Despite the mother's perfidy, the trial court denied the bill of review. The father then appealed the bill of review. The question on which the Fourteenth Court split was whether the appeal of the bill of review should be governed by ordinary appellate deadlines or those applicable to accelerated appeals. If the former applied, then the father's appeal was timely; if the latter applied, then the court of appeals lacked jurisdiction over the case because the father waited too long to appeal the denial of the bill of review.
The Court's decision rested on Tex. Fam. Code section 109.002(a), which read in pertinent part:
An appeal from a final order rendered in a suit, when allowed under this section or under other provisions of law, shall be as in civil cases generally. An appeal in a suit in which termination of the parent-child relationship is in issue shall be given precedence over other civil cases and shall be accelerated by the appellate courts. The procedures for an accelerated appeal apply to an appeal in which the termination of the parent-child relationship is in issue.
(emphasis added). The statute has since been amended to add the phrase “under the Texas Rules of Appellate Procedure” in two places, but its substance remains unchanged.
The Court's majority reasoned that termination of the parent-child relationship was not “in issue” because the only issue before the Court was whether the Department had properly served the father by publication. In contrast, the dissent reasoned that because reversal of the case would result in vacation of the termination decree, termination of the parent-child relationship was “in issue” in the bill of review proceedings.
The majority held that the Court had jurisdiction and affirmed the case on its merits. The dissent would have dismissed the appeal for want of jurisdiction.