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The Court requested full merits briefing on February 21, 2014. The Court issued an opinion resolving the case on October 3, 2014. File Closed
Tracking 1 article about this case.
Per Curiam Opinion PDF
|Appellate District:||4th Court of Appeals|
|Outcome Below:||Dismiss WOJ|
|COA Docket No.:||04-12-00315-CV|
|Opinion Author:||Honorable Marialyn Price Barnard|
|Trial Court:||83rd District Court|
|Trial Judge:||Honorable Robert C. Richardson|
|This case was waiting for a possible rehearing motion between November 14, 2014 and January 26, 2015.|
|2014-10-03||Court approved judgment sent to attorneys of record||Issued|
|2014-10-03||Opinion issued||Court of Appeals' judgment reversed and remanded to Court of Appeals|
|2014-10-03||Petition for Review granted under TRAP 59.1|
|2014-10-03||Petition for Review disposed||Petition granted pursuant to TRAP 59.1|
|This case was pending on merits briefs between April 28, 2014 and October 3, 2014.|
|2014-04-28||Reply Brief (Petitioner)|
|2014-04-14||Brief on the Merits (Respondent)|
|2014-03-21||Brief on the Merits (Petitioner)|
|2014-02-27||Case Record Filed|
|2014-02-21||Record Requested in Petition for Review|
|2014-02-21||Brief on the Merits Requested|
|2014-01-22||Phone call from Clerk's Office|
|This case was waiting for a decision about briefing or a possible grant between November 4, 2013 and January 22, 2014.|
|2013-08-23||Referral to Pro Bono Program - Letter sent to All Counsel of Record and Program Liason|
|2013-07-17||Response Waiver filed|
|2013-06-17||Supreme Court of Texas Requested Response|
|2013-05-14||Case forwarded to Court|
|2013-04-15||Phone call from Clerk's Office|
|2013-04-12||Affidavit of Inability to Pay Court Costs|
|2013-04-12||Petition for Review (Petitioner)|
|Grant, Jeffrey Alan||
A party who does not participate in the trial court hearing that leads to the judgment being challenged can file a notice of restricted appeal for up to six months after judgment, as compared to the normal 30-day notice of appeal deadline. The wrinkle here is that the judgment recited that the party had appeared at the key hearing — while other aspects of the trial court record indicated that she had not.
The underlying dispute involves child custody. About two years after a divorce, the father moved to modify the court's custody order to appoint him sole managing conservator. A hearing was set for September 2011, and while the father appeared by telephone, the mother did not. The trial court did not enter an order until November 2011. That order, in turn, began with recitals stating that the hearing occurred in November 2011 and that the mother appeared.
The Supreme Court held that the court of appeals was not bound by the recital on the face of the judgment and, instead, should have considered the other indications in the record that — here, at least — conclusively established that the relevant hearing was the one that took place in September 2011.
The Court emphasized that this record was truly overwhelming:
Importantly, nothing in the record indicates the hearing took place in November 2011. And at least eight references in the record, including portions of the trial court’s docket sheet and the reporter’s record, conclusively confirm the hearing occurred in September 2011 and the petitioner did not participate.
When the record is less conclusive, a party may have a much more difficult time trying to challenge an incorrect recital in a judgment that threatens to deprive the appellate courts of jurisdiction.