In THE INTEREST OF A.B. AND D.B., CHILDREN v. the State of Texas

Supreme Court of Texas
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No. 22-0864
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In the Interest of A.B. and D.B., Children

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On Petition for Review from the
Court of Appeals for the Sixth District of Texas
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PER CURIAM

A father appeals the trial court’s order terminating his parental
rights to his two children. After a joint bench trial, the trial court
ordered termination of both the father’s and the mother’s rights in a
single order.
By statute, either of two courts of appeals has jurisdiction to
entertain the appeal. Father noticed his appeal to one court of appeals.
Mother noticed her appeal to the other. Father then amended his notice
of appeal to consolidate his appeal into the court of appeals in which
Mother’s appeal was pending. Though no party objected to the
consolidation, that court of appeals concluded that the amended notice
could not vest it with jurisdiction, and it dismissed Father’s case.
We conclude that Father properly invoked the court of appeals’
jurisdiction, and thus the court of appeals erred in dismissing Father’s
appeal on jurisdictional grounds. Accordingly, we reverse the court of
appeals’ judgment and remand the case to that court to consider the
merits of Father’s appeal.
I
The Texas Department of Family and Protective Services became
concerned for two young children’s safety after their father allegedly
shattered their mother’s bedroom window. The Department sought to
terminate Mother A.J.’s and Father D.B.’s parental rights to their two
children. Following a bench trial, the Family District Court for the
307th Judicial District of Gregg County found clear and convincing
evidence of endangerment, failure to comply with the court-ordered
service plan, and abuse of a controlled substance on the part of both
parents. The trial court terminated their parental rights under Family
Code Section 161.001(b)(1)(D), (E), (O), (P), and (b)(2).
Two court of appeals districts—the Sixth and the Twelfth—have
jurisdiction over appeals from Gregg County. See TEX. GOV’T CODE
§ 22.201(g), (m). A party may notice an appeal from a trial court’s ruling
to either court of appeals. 1
Father noticed his appeal to the Twelfth Court of Appeals.
Meanwhile, Mother noticed her appeal to the Sixth Court of Appeals.
Two weeks after Mother filed her notice, Father amended his notice to

1 When there is an option, an appellant selects the court of appeals by

denoting it in the notice of appeal. See TEX. CIV. PRAC. & REM. CODE § 51.012;
TEX. R. APP. P. 25.1(d)(4). The Sixth and Twelfth Courts of Appeals Districts
have overlapped since 1963. James T. “Jim” Worthen, The Organizational &
Structural Development of Intermediate Appellate Courts in Texas, 1892–2003,
46 S. TEX. L. REV. 33, 64-65 (2004); see Act of May 8, 1963, 58th Leg., R.S.,
ch. 198, § 1, 1963 Tex. Gen. Laws 539, 540 (codified at TEX. GOV’T CODE
§ 22.201).

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reflect that he was appealing to the Sixth Court under Mother’s
appellate case number. He also moved to dismiss his appeal in the
Twelfth Court, representing that he sought to consolidate appeals from
the same trial court proceedings in the Sixth Court. The Twelfth Court
granted his motion.
The parties filed their appellate briefs in the Sixth Court. After
briefing was complete, the Sixth Court notified the parties of “a potential
defect” in the court’s jurisdiction and called for supplemental briefing.
No party’s original or supplemental brief raised an objection to
consolidation.
With respect to Mother’s appeal, the Sixth Court affirmed and
issued a written opinion. ___ S.W.3d ___, 2022 WL 3567911, at *1 (Tex.
App.—Texarkana Aug. 19, 2022). In a footnote, however, the court held
that it lacked jurisdiction over Father’s appeal and ordered it dismissed
“for want of jurisdiction.” Id. at *1 n.2. The court observed that the
Texas Rules of Appellate Procedure permit an amended notice of appeal
if “filed to correct ‘a defect or omission in an earlier filed notice.’” Id.
(quoting TEX. R. APP. P. 25.1(g)). The Sixth Court decided, however, that
Father’s “first-filed notice contained no defect or omission” and thus his
amended notice of appeal failed to properly invoke the Sixth Court’s
jurisdiction. Id. In so holding, the Sixth Court relied on Miles v. Ford
Motor Co., in which our Court held that the court of appeals in which
jurisdiction is first invoked acquires dominant jurisdiction over the
appeal. Id. (quoting 914 S.W.2d 135, 138 (Tex. 1995)).
Mother and Father petitioned for review. We denied Mother’s
petition. In Father’s appeal, we requested merits briefing. In their

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respective briefs, the Department and Father agree that the Sixth Court
improperly evaluated its jurisdiction; both urge that we reverse and
remand the case to that court to consider the merits of Father’s appeal.
II
Texas Rule of Appellate Procedure 25.1(g) permits a party to
amend a notice of appeal to correct “a defect or omission in an earlier
filed notice.” In this case, the “defect or omission” that Father sought to
correct was his indication that his appeal was taken to the Twelfth Court
of Appeals rather than the Sixth. Father sought to consolidate the
appeals arising from the same trial court order.
Father’s amended notice sought to comply with the Rules of
Judicial Administration, which require consolidation of multiple
appeals from a single judgment or order in one court of appeals:
If notices of appeal filed by two or more parties from a
single judgment or order designate different courts of
appeals that have jurisdiction of the appeal because the
county in which the trial court sits is assigned to more than
one appellate district, the appeals must be consolidated in
one of the courts of appeals.
TEX. R. JUD. ADMIN. 15.2. Father’s amended notice referenced Mother’s
appellate case number to comply with Rule 15.2. 2

2 Rule of Judicial Administration 15.2 is mandatory; two appeals from

a single judgment filed in different courts “must” be consolidated. In other
words, Father was required to seek consolidation with Mother’s appeal in
either the Sixth or Twelfth Court. In the ordinary process, appealing parties
must notify the clerks of the respective courts of appeals of any objection to
consolidation under Rule of Judicial Administration 15.3, and the courts may
then make an appropriate transfer under that Rule (or Rule 15.4 when the
parties cannot agree). These provisions do not exclude other methods for the
parties to achieve consolidation of appeals arising from the same trial court
judgment or order.

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The Sixth Court erred in concluding that Father’s first-filed
notice to the Twelfth Court could not be altered by subsequent
amendment to achieve consolidation of the two appeals. The Sixth Court
of Appeals should have applied Rule of Judicial Administration 15.2 to
consolidate both parents’ appeals and reach the merits.
The Twelfth Court’s dismissal of the appeal upon Father’s motion
did not divest the Sixth Court of jurisdiction. The Sixth Court concluded
in error that the Twelfth Court’s dismissal fully adjudicated Father’s
appeal. 2022 WL 3567911, at *1 n.2. Rule of Appellate Procedure
42.1(a)(1) provides that an appellate court may not dismiss an appeal if
“such disposition would prevent a party from seeking relief to which it
would otherwise be entitled.” The Twelfth Court’s dismissal, which
explicitly withheld adjudication under Rule 42.1(a)(1), was without
prejudice to Father’s pursuit of his appellate rights in the Sixth Court.
The Sixth Court improperly interpreted the dismissal as a final
disposition preventing Father from seeking further relief in a court of
appeals.
Our opinion in Miles v. Ford Motor Co. does not compel dismissal
for lack of jurisdiction. In Miles, the plaintiffs sued for a product defect
and won a jury verdict. 914 S.W.2d at 136-37. Upon final judgment, the
plaintiffs appealed an earlier adverse partial summary judgment to the
Sixth Court of Appeals, and the defendants appealed the judgment on
the jury verdict to the Twelfth Court of Appeals. Id. at 137. One
defendant moved to consolidate the appeals. Id. In the ensuing
proceedings, the parties agreed that the appeals should be consolidated
but contested which court should hear the appeal. Id. at 137-38. Our

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Court agreed that the plaintiffs’ “venue selection should control because
they were the first to perfect an appeal,” and thus the Sixth Court
acquired dominant jurisdiction over the case. Id. at 138. Our Court
observed that “a court of appeals ‘will not be permitted to interfere with
the previously attached jurisdiction of another court of co-ordinate
power.’” Id. (quoting Morrow v. Corbin, 62 S.W.2d 641, 645 (Tex. 1933)).
In this case, the Sixth Court overlooked a nuance of Miles that
makes it clear that it had jurisdiction to decide Father’s appeal. In
Miles, a defendant argued that the plaintiffs invoked the jurisdiction of
the Sixth Court “as a pretext merely to establish venue” and did not
intend to prosecute their appeal. Id. at 138-39. In rejecting that
argument, we did not require the court of appeals to dismiss the second
appeal for lack of jurisdiction. Rather, we held that “abatement [of the
second appeal] is the more appropriate remedy.” Id. at 139. While we
recognized that dominant jurisdiction vests in the court of appeals to
which the first appeal is taken, that dominant jurisdiction does not
dissolve the second-noticed court of appeals’ jurisdiction. Instead, the
Twelfth Court was to yield to the Sixth Court for so long as the appeal
in the latter was prosecuted in good faith. Id.
In contrast to the situation in Miles, no pending proceeding
impedes the Sixth Court’s jurisdiction. Even if the Twelfth Court
initially acquired dominant jurisdiction, Father successfully dismissed
his appeal without regard to the merits, see TEX. R. APP. P. 42.1(a)(1),
and demonstrated his lack of intent to prosecute his appeal in that court.
Mother and the Department did not object to the dismissal or to the
consolidation of the two appeals in the Sixth Court. Father

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demonstrated his lack of intent to prosecute the appeal in the Twelfth
Court, so the Sixth Court became the dominant (and only) venue to hear
the appeal.
Finally, “we have repeatedly stressed that procedural rules
should be construed and applied so that the right of appeal is not
unnecessarily lost to technicalities.” Guest v. Dixon, 195 S.W.3d 687,
688 (Tex. 2006). The Sixth Court’s dismissal contravened “[o]ur
decisions reflect[ing] the policy embodied in our appellate rules that
disfavors disposing of appeals based upon harmless procedural defects.”
Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997). The Department
confesses that the merits were properly before the Sixth Court and that
the court erred in dismissing Father’s appeal for want of jurisdiction.
There was “no question of unfair surprise or confusion” to any party that
might preclude the court of appeals from adjudicating the merits. State
ex rel. Durden v. Shahan, 658 S.W.3d 300, 305 (Tex. 2022).
* * *
We hold that the Sixth Court of Appeals erred in dismissing
Father’s appeal for lack of jurisdiction. Accordingly, without hearing
oral argument, see TEX. R. APP. P. 59.1, we reverse the judgment of the
court of appeals and remand for the Sixth Court to consider the merits
of Father’s appeal.

OPINION DELIVERED: September 15, 2023

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