Before Sudderth, C.J.; Birdwell and Bassel, JJ. Opinion by Chief Justice Sudderth OPINION The primary issue in this appeal from a judgment terminating the parent–child relationship (1) between Mother and K.C. and N.T and (2) between Father and K.C.[1] is an issue of first impression: whether the trial court lost jurisdiction by failing to extend the Texas Family Code’s automatic-dismissal deadline before its expiration when one of its extension orders omitted either a date certain or a time frame by which a new dismissal date could be calculated and a subsequent extension order was rendered too late.[2] Because we hold that the trial court lost jurisdiction over the suit automatically, we vacate the trial court’s judgment and dismiss the underlying suit without prejudice to refiling. Background On October 17, 2018, after receiving a referral of “neglectful supervision” by Mother, the Department of Family and Protective Services filed a petition requesting to be named temporary managing conservator of K.C. and N.T. The same day, the trial court signed an order naming the Department as the children’s temporary managing conservator. Mother was served on October 18, 2018, and Father was served on October 16, 2019. Before service of the suit on Father, Mother and the Department agreed to an extension of the initial dismissal date, October 21, 2019, to April 17, 2020. The trial court signed an order extending the dismissal deadline according to the agreement. On February 11, 2020, after a permanency hearing, the trial court signed an order again listing the dismissal date as April 17, 2020, and also setting trial for March 30, 2020. On March 13, 2020, the Texas Supreme Court issued its First Emergency Order Regarding the COVID-19 State of Disaster (1st Order), 596 S.W.3d 265 (Tex. 2020). In that order, the court gave Texas courts the authority, “[s]ubject only to constitutional limitations,” to “[m]odify or suspend any and all deadlines and procedures, whether prescribed by statute, rule, or order, for a stated period ending no later than 30 days after the Governor’s state of disaster has been lifted.”[3] Id. at 265 (emphasis added). On March 19, 2020, the Texas Supreme Court issued its Third Emergency Order Regarding the COVID-19 State of Disaster (3rd Order), in which it clarified that the 1st Order applied to Family Code Section 263.401 deadlines and that those deadlines “may or must be modified or suspended . . . to avoid the risks of disaster and still protect the interests of all involved in these difficult circumstances.” 596 S.W.3d 266, 267 (Tex. 2020).[4] On March 20, 2020, Mother and Father reached the following mediated settlement agreement with the Department: The parties agree to remove this case from the jury trial docket and ensure it is placed on the bench trial docket. The parties agree to convene the bench trial if at all possible due to the COVID – 19 [pandemic], on the trial date or to reasonably set this matter on a bench trial docket immediately thereafter if not possible. The parties agree to immediately convene the trial so that the out of state placement options can be explored. The parties agree that such reconvening of the trial is for the purpose of extending the dismissal date so that th[e] out of state placement options can be considered. Instead of convening trial, the Department moved on April 13, 2020, to extend the dismissal deadline from April 17, 2020, to “a date specific within 30 days of the end of the statewide disaster declaration.” [Emphasis added.] On April 14, 2020, the trial court signed an order[5] purporting to extend the dismissal date.[6] In the order, the trial court found that “[t]he COVID-19 pandemic and subsequent” 1st Order constituted extraordinary circumstances justifying an extension of the dismissal deadline and that the deadline “shall be extended.” But the order did not list how long the dismissal deadline should be extended, nor did it list a specific date for dismissal; it simply stated, “The dismissal date is extended to ,” and it noted, “The final trial date is reset to , 2020 at 9:00 A.M.” The order also set the next permanency hearing—-”[p]ursuant to § 263.306(a-1)(7), Texas Family Code”[7]—-for May 11, 2020. The court’s online docket entry for that day simply records the order’s title.[8] On April 21, 2020, the court administrator sent a Notice of Final Trial, setting June 22, 2020, as the trial date. After a permanency hearing either on May 8 or May 11, 2020,[9] the trial court issued an order reciting that the dismissal and final trial dates had been set for June 22, 2020. On May 26, 2020, the Texas Supreme Court issued its Seventeenth Emergency Order Regarding the COVID-19 State of Disaster (17th Order), which provided as follows: 3. Subject only to constitutional limitations, all courts in Texas may in any case, civil or criminal—and must to avoid risk to court staff, parties, attorneys, jurors, and the public— . . . . . . . in all proceedings under Subtitle E, Title 5 of the Family Code, specifically including but not limited to Section 263.401(b): modify or suspend a deadline or procedure—whether imposed by statute, rule, or order—for a stated period not to exceed 180 days; extend the dismissal date for any case previously retained on the court’s docket for an additional period not to exceed 180 days from the date of this Order. 609 S.W.3d 119, 120 (Tex. 2020) (emphasis added). Pursuant to the 17th Order, on June 24, 2020, the trial court entered an agreed order that purported to further extend the dismissal date to November 20, 2020. After several more dismissal-deadline extension orders, trial commenced on October 18, 2021. However, the trial court recessed the trial on Mother’s motion. Although the trial resumed on January 4, 2022, the trial court recessed it again because it “went beyond the allotted docket time.” Trial recommenced and was completed on March 28, 2022. The trial court signed the final termination order on May 9, 2022. Underlying Case Automatically Dismissed Mother and Father both contend that the underlying suit was dismissed automatically under Section 263.401(c), either in April 2020 or in June 2020. According to our analysis of the plain language of the Texas Supreme Court’s COVID-disaster-related emergency orders allowing extensions of the Family Code’s automatic-dismissal deadline, we agree. Family Code Section 263.401 establishes certain deadlines for cases filed by the Department that request termination of the parent–child relationship. See Tex. Fam. Code Ann. § 263.401. According to that section, unless the court has commenced the trial on the merits or granted an extension under subsection (b) or (b-1)[10] of Section 263.401, “on the first Monday after the first anniversary of the date the court rendered a temporary order appointing the [D]epartment as temporary managing conservator, the court’s jurisdiction over the suit . . . is terminated and the suit is automatically dismissed.” Id. § 263.401(a). To retain the suit before the automatic dismissal, the trial court must find that extraordinary circumstances necessitate continuing the Department’s temporary managing conservatorship and that continuing the conservatorship is in the child’s best interest. Id. § 263.401(b) (requiring also that if trial court retains the suit, it must render an order (1) scheduling a new automatic-dismissal date and setting trial on the merits no later than the 180th day after the initial dismissal date and (2) making further orders for the child’s safety and welfare as necessary to avoid further delay). If the trial court extends the dismissal date but does not commence the trial on the merits no later than the day before the extended dismissal date, “the court’s jurisdiction over the suit is terminated and the suit is automatically dismissed without a court order.” Id. § 263.401(c); In re J.R., 622 S.W.3d 602, 605 (Tex. App.—Fort Worth 2021, orig. proceeding [mand. dism'd]). An extension order rendered on or after the automatic-dismissal date cannot operate to revive jurisdiction that has already been lost. J.R., 622 S.W.3d at 605; see also In re G.X.H., 627 S.W.3d 288, 301 (Tex. 2021) (“[A] trial court’s failure to timely extend the automatic dismissal date before that date passes . . . is jurisdictional . . . .”); In re J.R.T., No. 09-21-00361-CV, 2022 WL 802557, at *4 (Tex. App.—- Beaumont Mar. 17, 2022, no pet.) (mem. op.). The Department contends that the trial court’s April 14, 2020 order properly extended the automatic-dismissal deadline,[11] arguing that under the 1st and 3rd Orders, the trial court was not required to comply with Section 263.401(b) and was required to instead simply grant an extension before or on the April 17, 2020 dismissal deadline: “The trial court was not required to set a new dismissal date, because the order was not issued under § 263.401, and the trial court properly set the case for a permanency hearing on May 11, 2020.” See A.N. v. Tex. Dep’t of Fam. & Protective Servs., No. 03-22-00099-CV, 2022 WL 3638211, at *2–3 (Tex. App.—-Austin Aug. 23, 2022, no pet. h.) (mem. op.) (holding that when trial court has extended dismissal deadline under one of the Texas Supreme Court’s COVID-disaster-related emergency orders, automatic dismissal does not occur when extension order entered on day set for dismissal because extensions under the Texas Supreme Court’s emergency orders, other than first extensions, are not pursuant to Section 263.401(b)). We agree with the Department that the trial court was not required to comply with all of Section 263.401(b) to properly extend the dismissal deadline. See In re C.D., No. 05-21-00768-CV, 2022 WL 484559, at *2 (Tex. App.—-Dallas Feb.17, 2022, no pet.) (mem. op.) (noting that although trial court ordinarily may not grant more than one Section 263.401(b) extension, the Texas Supreme Court’s COVID-disaster-related emergency orders allow additional extensions). But even if the trial court was not required to comply with all of Section 263.401(b)’s requirements to properly extend the dismissal deadline and thereby retain jurisdiction, its April 14, 2020 extension order nevertheless failed to comply with the express language of the only other authority on which it could have relied—-the 1st Order. That order expressly authorized the trial court to extend the deadline only “for a stated period,”[12] which was to end “no later than 30 days after the Governor’s state of disaster has been lifted.” 1st Order, 596 S.W.3d at 265. Thus, according to the 1st Order’s plain language, the trial court’s extension had to identify some fixed amount of time by which the dismissal date could be calculated. The Department cites no authority holding that an open-ended extension order that omits any time frame or end date for the extension[13] suffices to comply with the 1st Order. See Neurological Assocs. of San Antonio, P.A. v. Torres, No. 04-21-00120-CV, 2022 WL 1559101, at *3 (Tex. App.—- San Antonio May 18, 2022, no pet.) (mem. op.) (“[N]othing in the [1st O]rder suggested an automatic modification or suspension of deadlines and procedures.”); In re J.L.J., 645 S.W.3d 294, 298 (Tex. App.—-Houston [14th Dist.] 2022, pet. denied) (holding that the terms of the 33rd emergency order—-substantially similar to the other COVID-disaster-related emergency orders—-”establish that the extension is not automatic”). But cf. In re J.D.A.S., No. 14-22-00115-CV, 2022 WL 3365259, at *2–3 (Tex. App.—-Houston [14th Dist.] Aug. 16, 2022, no pet.) (mem. op.) (holding that trial court’s standing order, issued according to 1st Order, “that all cases already on an extended dismissal date shall be retained for up to 180 days pas[t] the extended dismissal date,” operated sufficiently to extend dismissal deadline); C.C., 2022 WL 1121428, at *3 (holding same for similar standing order, which extended the statutory dismissal deadline for all pending TDFPS-filed cases “until November 22, 2020″). In other words, the COVID-disaster-related emergency orders are not self-executing; they provide for outside limits on extensions, but they do not dictate how long such extensions must be within the permissible limits. Even assuming that the April 14, 2020 order operated to extend the dismissal deadline to at least the date stated therein (May 11, 2020), it could not have extended the dismissal date beyond June 11, 2020—-30 days after the date the then-effective Governor’s disaster proclamation was to expire[14]—-at the time it was rendered. See 12th Order, 629 S.W.3d at 144; 1st Order, 596 S.W.3d at 265. Before that time, on May 8, 2020, the trial court rendered an order stating, “[T]he Court determines that the date for dismissal of this cause shall be June 22, 2020,” and further setting a final trial date: “[T]he Court determines that this suit shall be and is hereby set for trial on June 22, 2020 . . . .” But that date was beyond 30 days after the expiration of the then-effective Governor’s disaster declaration. Thus, if the suit was validly extended by the April 14, 2020 order to allow a further extension on May 8, 2020, the “stated period” for the May 2020 extension would have expired on June 11, 2020, before the extended June 22, 2020 dismissal date set in the order. No trial court order extending the deadline past June 11, 2020, was signed after the Governor renewed his disaster proclamation effective May 12, 2020. See Tex. Gov. Proclamation No. 41-3734, 45 Tex. Reg. 3397, 3397 (2020). However, even if we were to further assume that the deadline extension to June 22, 2020, could have been effective, the trial court nevertheless failed to timely extend that deadline. On June 17, 2020, Father filed a motion to continue the trial setting, but he did not ask for a continuance for a certain time frame or until a date certain.[15] The trial court’s online docket note for June 22, 2020, states only “Continuance Granted”;[16] it does not say for how long a continuance was granted or reference a date when it was to end.[17] Not until June 24, 2020—-two days after the dismissal date—-did the trial court sign an agreed order further extending the dismissal date to November 20, 2020, and setting final trial for October 19, 2020.[18] By the time this order purporting to extend the dismissal deadline was rendered, the automatic- dismissal date had already passed; thus, this order could not have revived the trial court’s jurisdiction. See J.R., 622 S.W.3d at 605. The Department urges us to adopt the reasoning of the Austin Court of Appeals in A.N.—-that the Section 263.401(c) automatic dismissal did not occur on June 22, 2020, because second and subsequent dismissal-date extensions according to one of the Texas Supreme Court’s emergency orders are not extensions according to Section 263.401(b), which allows for only one extension. 2022 WL 3638211, at *2. To the extent that the Department argues that A.N. allows a trial court to retain jurisdiction by rendering an extension order the day after the dismissal deadline set according to one of the COVID-disaster-related emergency orders or beyond—-rather than on the actual dismissal deadline itself—-we disagree. See C.D., 2022 WL 484559, at *2 (holding that “for the [trial] court to retain jurisdiction by extending the dismissal date . . ., the court must actually extend the dismissal date before it expires”); see also J.R.T., 2022 WL 802557, at *4; In re J.R., 622 S.W.3d at 605. Moreover, the reasoning of A.N. does not compel a different result here because in that case, the trial court had signed its second extension order on the dismissal date itself, not a day or more after. 2022 WL 3638211, at *1. Accordingly, we hold that the reasoning of A.N. does not apply here. We sustain Mother’s second issue and Father’s first issue. Because those issues are dispositive, we need not address Mother’s and Father’s other issues on appeal. See Tex. R. App. P. 47.1. Conclusion Having determined that the underlying suit was automatically dismissed under Family Code Section 263.401(c), we vacate the trial court’s judgment as void and dismiss the Department’s suit without prejudice to refiling and without prejudice to the trial court’s rendering a new emergency order under Family Code Section 262.102. See Tex. R. App. P. 43.2(e); Tex. Fam. Code Ann. § 262.102; In re J.R., 652 S.W.3d 508, 515–16 (Tex. App.—-Houston [14th Dist.] 2022, pet. filed.); J.D.A.S., 2022 WL 3365259, at *5; In re A.M., No. 07-19-00391-CV, 2020 WL 1174579, at *3 (Tex. App.– –Amarillo Mar. 11, 2020, no pet.) (mem. op.). /s/ Bonnie Sudderth Bonnie Sudderth Chief Justice Delivered: November 3, 2022
