Juan Velasquez v. Texas Department of Family Protective Services

Court of Appeals
Tenth Appellate District of Texas

10-23-00133-CV

Juan Velasquez,
Appellant

v.

Texas Department of Family Protective Services,
Appellee

On appeal from the
74th District Court of McLennan County, Texas
Judge Gary R. Coley, presiding
Trial Court Cause No. 2022-3682-3

CHIEF JUSTICE JOHNSON delivered the opinion of the Court.

MEMORANDUM OPINION

Appellant Juan Velasquez appeals the trial court’s order denying his

petition for bill of review from a prior order terminating his parental rights.

We will affirm.

A. Background

After a contested trial before an associate judge, Velasquez’s parental

rights to two of his children were ordered terminated. Velasquez timely
requested trial de novo before the trial court, and after a contested trial

Velasquez’s parental rights to the two children were again ordered terminated.

Velasquez retained counsel to appeal the trial court’s final order of

termination, but his counsel failed to timely file a notice of appeal. Velasquez

then filed a petition for bill of review with the trial court seeking to have the

final order of termination vacated. The trial court denied Velasquez’s first

amended petition for bill of review and his subsequent motion for new trial,

motion for reconsideration, and second amended petition for bill of review.

In Velasquez’s trial brief, he argued that equitable relief by way of a bill

of review is necessary because he was deprived of his right to effective

assistance of counsel due to failures of his trial and appellate attorneys, not

through any fault of his own. Velasquez’s contention was that the right to

parent is a “fundamental, constitutional” right that requires extraordinary

diligence and error minimization because of the gravity of terminating the

parent-child relationship for which a bill of review is an appropriate safeguard.

Velasquez brings this appeal and raises four issues.

B. Issue Three

We construe Velasquez’s third issue as a complaint that the trial court

erred in denying Velasquez’s petition for bill of review because he suffered a

due process violation and therefore he was relieved of the requirement that he

plead and prove (1) a meritorious defense to the underlying cause of action, (2)

Velasquez v. Tex. Dep’t. of Family Protective Services Page 2
which the petitioner was prevented from making by the fraud, accident or

wrongful act of the opposing party or official mistake, but was only required to

plead and prove that there was no fault or negligence on his own part in failing

to perfect his appeal of the termination proceeding.

1. Authority

“A bill of review is an equitable proceeding brought by a party seeking to

set aside a prior judgment that is no longer subject to challenge by a motion

for new trial or appeal.” In Interest of Child, 492 S.W.3d 763, 766 (Tex. App.—

Fort Worth 2016, pet. denied) (citing Ross v. Nat’l Ctr. for the Emp’t of the

Disabled, 197 S.W.3d 795, 797 (Tex. 2006); Caldwell v. Barnes, 975 S.W.2d 535,

537 (Tex. 1998)). A petitioner must file a petition for bill of review to invoke

the equitable powers of the trial court. Baker v. Goldsmith, 582 S.W.2d 404,

408 (Tex. 1979). The petitioner must show sufficient cause for the court to

grant the bill of review. See TEX. R. CIV. P. 329b(f). “Courts narrowly construe

the grounds on which a plaintiff may obtain a bill of review due to Texas’s

fundamental public policy favoring the finality of judgments.” Mabon Ltd. v.

Afri-Carib Enterprises, Inc., 369 S.W.3d 809, 812 (Tex. 2012). “In reviewing

the grant or denial of a bill of review, every presumption is indulged in favor

of the court’s ruling, which will not be disturbed unless it is affirmatively

shown that there was an abuse of judicial discretion.” Saint v. Bledsoe, 416

S.W.3d 98, 101 (Tex. App.—Texarkana 2013, no pet.) (citing Nguyen v. Intertex,

Velasquez v. Tex. Dep’t. of Family Protective Services Page 3
Inc., 93 S.W.3d 288, 293 (Tex. App.—Houston [14th Dist.] 2002, no pet.),

overruled on other grounds by Glassman v. Goodfriend, 347 S.W.3d 772 (Tex.

App.—Houston [14th Dist.] 2011, pet. denied); Harris v. Elm Oil Co., 183

S.W.2d 216, 218 (Tex. Civ. App.—Texarkana 1944, writ ref’d w.r.m.)).

A bill of review petitioner must ordinarily plead and prove (1) a

meritorious defense to the underlying cause of action, (2) which the petitioner

was prevented from making by the fraud, accident or wrongful act of the

opposing party or official mistake, (3) unmixed with any fault or negligence on

their own part. Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004). However,

when a bill-of-review petitioner claims a due process violation for no service or

notice, they are relieved from proving the first two elements. Mabon Ltd., 369

S.W.3d at 812.

If a party fully participated throughout the prior suit and has been

prevented from perfecting appeal, they are required to plead and prove in the

bill of review proceeding (1) a failure to file a motion for new trial or a failure

to advance an appeal, (2) caused by the fraud, accident or wrongful act of the

opposing party or by an official mistake, (3) unmixed with any fault or

negligence of their own, and (4) a meritorious ground of appeal. See Thompson

v. Ballard, 149 S.W.3d 161, 164 (Tex. App.—Tyler 2004, no pet.); McDaniel v.

Hale, 893 S.W.2d 652, 663 (Tex. App.—Amarillo 1994, writ denied). “A

meritorious ground of appeal is one that, had it been presented to the appellate

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court as designed, might, and probably would, have caused the judgment to be

reversed.” See Morris v. O’Neal, 464 S.W.3d 801, 807 (Tex. App.—Houston

[14th Dist.] 2015, no pet.).

Procedurally, the petitioner must present to the court prima facie proof

to support his claims of a meritorious ground on appeal as a pre-trial matter.

Thompson, 149 S.W.3d at 165 (citing Petro–Chem. Transp. Inc. v Carroll, 514

S.W.2d 240, 245 (Tex. 1974); McDaniel, 893 S.W.2d at 663). At the pre-trial

stage, the only relevant inquiry is whether the petitioner has made a prima

facie showing of a meritorious ground of appeal. Ballard, 149 S.W.3d at 165

(citing Beck v. Beck, 771 S.W.2d 141, 142 (Tex. 1989); Martin v. Martin, 840

S.W.2d 586, 591 (Tex. App.—Tyler 1992, writ denied). The Supreme Court of

Texas explained what constitutes prima facie proof and how it is to be

presented:

Prima facie proof may be comprised of documents, answers to
interrogatories, admissions, and affidavits on file along with such
other evidence that the trial court may receive in its discretion.
The bill of review defendant may respond with like proof showing
that the defense is barred as a matter of law, but factual questions
arising out of factual disputes are resolved in favor of the
complainant for the purposes of this pretrial, legal determination.
If the court determines that a prima facie meritorious defense has
not been made out, the proceeding terminates and the trial court
shall dismiss the case.

Velasquez v. Tex. Dep’t. of Family Protective Services Page 5
Baker, 582 S.W.2d at 409.

If a prima facie showing has been made, the court should conduct a full

trial on the merits of the underlying case. Baker, 582 S.W.2d at 408–09. The

court may, in its discretion, conduct the trial of the issues in one hearing or in

separate hearings. Baker, 582 S.W.2d at 409.

A bill of review is proper only when a party has exercised due diligence

to prosecute all adequate legal remedies against a former judgment. Davis v.

Smith, 227 S.W.3d 299, 302 (Tex. App.—Houston [1st Dist.] 2007, no pet.)

(citing King Ranch v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003); Wolfe v.

Grant Prideco, Inc., 53 S.W.3d 771, 773 (Tex. App.—Houston [1st Dist.] 2001,

pet. denied)). This due diligence requirement is distinct from the elements of

the bill of review. Davis, 227 S.W.3d at 302 (citing Caldwell, 975 S.W.2d at

537–38). The rule applies even when the failure to pursue available legal

remedies results from the negligence or mistake of a party’s attorney. Gracey

v. West, 422 S.W.2d 913, 916 (Tex. 1968); Thompson v. Henderson, 45 S.W.3d

283, 288 (Tex. App.—Dallas 2001, pet. denied). “Although it is an equitable

proceeding, the fact that an injustice has occurred is not sufficient to justify

relief by bill of review.” Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex.

1999).

2. Discussion

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On January 20, 2023, the trial court conducted a hearing on the bill of

review. The live pleading at the time of the hearing was Velasquez’s first

amended petition for bill of review which read, in relevant part, as follows:

Facts

6. In the earlier suit, on February 5, 2021, Plaintiff, filed suit in
the 74th District Court against Defendant, now Petitioner and
Plaintiff, Cause No. 2021-319-3, and later 2021-320-3, the two
children were severed out, styled Department of Family Protective
Services vs. Juan Velasquez, claiming Original Petition for
Protection of a child, for conservatorship, and for termination in
suit affecting the parent- [sic]. A Judgment was improperly taken
against Defendant on July 12, 2022. A copy of the Judgment is
attached as Exhibit A and incorporated by reference. More than
thirty days have passed since the Judgment was signed. Less than
six (6) months have passed from the cause of action accruing. This
Court in which the original suit was filed has proper jurisdiction.

...

Due Process Violation

8. Defendant wrongfully obtained the Judgment in violation of
Plaintiff’s due process by failing to consider evidence of the
separation of Juan Velasquez and his wife.

During the hearing on the first amended petition for bill of review, Velasquez’s

counsel argued that he wanted to present evidence of actions taken by

Velasquez after the de novo termination hearing. The Department argued

against any such evidence because of the “prerequisites” that must be

established before a court can consider a bill of review on the merits. Despite

the trial court’s concerns, and over the Department’s objection, the trial court

Velasquez v. Tex. Dep’t. of Family Protective Services Page 7
allowed some brief testimony by Velasquez and an offer of proof by his counsel

that included a request for a new final hearing. The substance of the evidence

and offer went to whether Velasquez had separated from the mother of the

children and whether he was a good father to the children. The trial court then

took the first amended bill of review under advisement before ultimately

denying the requested relief.

Within ten days of the trial court’s denial of Velasquez’s petition for bill

of review, new counsel for Velasquez filed a notice of appearance and

designation of lead counsel. Shortly thereafter, Velasquez’s new counsel filed

a “Motion for Reconsideration and Motion for New Trial” and a supporting trial

brief. After filing the motions and the brief, counsel for Velasquez filed a

second amended petition for bill of review which read, in relevant part, as

follows:

Facts

6. In the earlier suit, on February 5, 2021, Plaintiff, filed suit in
the 74th District Court against Defendant, now Petitioner and
Plaintiff, Cause No. 2021-319-3, and later 2021-320-3, the two
children were severed out, styled Department of Family Protective
Services vs. Juan Velasquez, claiming Original Petition for
Protection of a child, for conservatorship, and for termination in
suit affecting the parent- [sic]. A Judgment was improperly taken
against Defendant on July 12, 2022. A copy of the Judgment is
attached as Exhibit A and incorporated by reference. More than
thirty days have passed since the Judgment was signed. Less than
six (6) months have passed from the cause of action accruing. This
Court in which the original suit was filed has proper jurisdiction.
(emphasis original)

Velasquez v. Tex. Dep’t. of Family Protective Services Page 8
...

Due Process Violation

8. Defendant wrongfully obtained the Judgment in violation of
Plaintiff’s due process as outlined in the brief attached hereto as
Exhibit B, which is specifically included by reference, as if fully
set forth herein. Petitioner’s Bill of Review should be granted for
numerous reasons. First, Petitioner’s appellate counsel’s failures
resulted in Petitioner being wholly deprived of his right to appeal
this matter. Second, Petitioner’s appellate counsel’s failure to file
a motion for new trial resulted in the waiver – certainly
unintentional on the part of Petitioner – of both evidentiary and
factual insufficiency arguments that would have been available to
Petitioner on appeal. Third, Petitioner’s trial counsel allowed
large amounts of objectionable evidence to come in during trial,
thus waiving many potential appellate arguments. In sum, the
equitable bill of review should be granted because if proper
objections had been raised at trial and his appellate counsel had
prosecuted the appeal, Petitioner could have obtained a different
outcome than the termination he has thus far suffered. (emphasis
original)

In the trial brief attached to and incorporated into Velasquez’s second amended

petition for bill of review, Velasquez asserted that his appellate counsel’s

failure to file a motion for new trial resulted in the forfeiture of many

evidentiary and factual sufficiency issues on appeal and that counsel’s failure

to file a timely notice of appeal resulted in the loss of his right to appeal. He

maintained the bill of review should be granted because he was entitled to his

due process right of effective assistance of counsel through the deadline for

filing his notice of appeal and a denial of such amounted to a structural defect

in the proceeding. Velasquez asserted that the deprivation at issue should be

Velasquez v. Tex. Dep’t. of Family Protective Services Page 9
characterized as a “structural defect” analogous to criminal cases when a

defendant is denied an entire level of review. His contention was that in

criminal cases, habeas corpus provides redress for such structural defects; and

here, the bill of review should fill that gap in civil parental rights terminations.

Velasquez argued that effective assistance of counsel, as a due process right,

should be afforded the same treatment parties receive when they have been

denied due process because they were not served or given notice of a pending

lawsuit resulting in a default judgment. He cited to Caldwell v. Barnes as

authority and argued that because of the due process nature of his claim, he

should be relieved of showing the first two elements required for the grant of a

bill of review and is only required to show lack of fault or negligence on

Velasquez’s part. See Caldwell, 154 S.W.3d at 96-97.

The Department argued in its response to Velasquez’s motions and

second amended petition for bill of review that Velasquez failed to plead or

prove the requisite elements for relief under an equitable bill of review. The

Department maintained that Velasquez must plead and prove specific

elements, including the existence of a meritorious ground for appeal and lack

of any personal fault in missing deadlines.

The trial court took the post-ruling petition and motions under

submission and subsequently entered an order that denied all of Velasquez’s

requested relief.

Velasquez v. Tex. Dep’t. of Family Protective Services Page 10
As a party who fully participated throughout the parental-rights

termination suit and has been prevented from perfecting appeal, Velasquez is

required to plead and prove in his bill of review proceeding (1) a failure to file

a motion for new trial or a failure to advance an appeal, (2) caused by the fraud,

accident or wrongful act of the opposing party or by an official mistake, (3)

unmixed with any fault or negligence of their own, and (4) a meritorious ground

of appeal. See Ballard, 149 S.W.3d at 164; McDaniel, 893 S.W.2d at 663. In

addition to pleading and proving the above items, Velasquez must show that

he exercised due diligence in pursuing all adequate legal remedies against a

former judgment. See Davis, 227 S.W.3d at 302. The traditional test used to

determine whether a party has been diligent is whether the litigant and their

counsel used such care as a prudent and careful person would ordinarily use

in their own cases of equal importance. In re A.L.H.C., 49 S.W.3d 911, 916

(Tex. App.—Dallas 2001, pet. denied) (citing Lambert v. Coachmen Indus. of

Tex., Inc., 761 S.W.2d 82, 88 (Tex. App.—Houston [14th Dist.] 1988, writ

denied); Conrad v. Orellana, 661 S.W.2d 309, 313 (Tex. App.—Corpus Christi-

Edinburg 1983, no writ)).

Here, Velasquez places all responsibility for the failure to file a notice of

appeal in the underlying case squarely on his then appellate counsel.

Velasquez does not deny that he had knowledge of the order terminating his

parental rights and acknowledges that the trial court in the underlying case

Velasquez v. Tex. Dep’t. of Family Protective Services Page 11
“signed an appealable order on July 22, 2022.” Velasquez details in his sworn

declaration that he hired appellate counsel on June 3, 2022, before entry of the

appealable order, for the purpose of appealing the order terminating his

parental rights in the underlying case. Velasquez did not allege that notice

was not given when the order terminating was signed in the underlying case,

nor did Velasquez explain his appellate counsel’s failures or present any

evidence in an effort to do so. A principal-agent relationship is included in the

attorney-client relationship that results in the acts of one binding the other, as

a general rule. Gracey, 422 S.W.2d at 916. Therefore, Velasquez’s allegation

of attorney negligence is not a sufficient ground to support a bill of review. See

Transworld Fin. Services Corp. v. Briscoe, 722 S.W.2d 407, 408 (Tex. 1987)

(citing Gracey, 422 S.W.2d 913); see also King Ranch, Inc., 118 S.W.3d at 752.

Velasquez’s primary assertions throughout his trial brief were that his

“trial counsel and appellate counsel failed him most grievously” and that “[t]he

worst failures were committed by [Velasquez’s] appellate counsel.” However,

an injustice in a final order will not support relief for a party by a bill of review.

In re Marriage of Noonan, 280 S.W.3d 339, 344 (Tex. App.—Amarillo 2008, pet.

denied) (citing Crouch v. McGaw, 134 Tex. 633, 138 S.W.2d 94, 96 (1940)). We

conclude the trial court did not abuse its discretion in denying Velasquez’s

requested relief in his bill of review proceeding.

Velasquez v. Tex. Dep’t. of Family Protective Services Page 12
With regard to Velasquez’s due process claims we have found no

authority, nor has Vasquez directed us to any that would relieve him of his

heavy burden in seeking a bill of review, except when a due-process violation

occurs because of no service of process, or no notice of trial setting or dispositive

hearing. As an intermediate appellate court, we are bound to follow the

existing legal precedent. If an exception is to be made here, that is within the

sole province of the Supreme Court of Texas.

We overrule issue three.

C. Conclusion

Because Velasquez’s third issue is dispositive of the appeal, we need not

consider his other issues. See TEX. R. APP. P. 47.1. We affirm the order of the

trial court.

MATT JOHNSON
Chief Justice

OPINION DELIVERED and FILED: August 14, 2025
Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Affirmed
CV06

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