In THE INTEREST OF J.S., a CHILD v. the State of Texas

Supreme Court of Texas
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No. 22-0420
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In the Interest of J.S., a Child
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On Petition for Review from the
Court of Appeals for the Fifth District of Texas
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JUSTICE BOYD, concurring.

When the Texas Department of Family and Protective Services
files suit to terminate a parent-child relationship or to be named as a
child’s managing conservator, the trial court may enter a temporary
order appointing the Department to serve as the child’s managing
conservator until the suit is tried and a final judgment is entered. See
TEX. FAM. CODE § 105.001(a)(1). To ensure the court promptly resolves
the suit, Section 263.401(a) provides that, on the first Monday that
occurs one year after the court enters the temporary order, “the court’s
jurisdiction over the suit . . . is terminated and the suit is automatically
dismissed without a court order.” Id. § 263.401(a). But Subsection (a)
provides an exception: the court’s jurisdiction does not terminate on that
deadline and the suit is not automatically dismissed if the court has
(1) “commenced the trial on the merits” by the deadline or (2) “granted
an extension under Subsection (b) or (b-1).” Id.
Subsection (b),1 however, never mentions “grant[ing] an
extension.” See id. § 263.401(b). Instead, it provides that the trial court
may “retain the suit on the court’s docket,” but only “for a period not to
exceed 180 days after the time described by Subsection (a).” Id.
Necessarily, then, Subsection (a)’s reference to “grant[ing] an extension
under Subsection (b)” means “retain[ing] the suit on the court’s docket.”
To “retain the suit on the court’s docket” (that is, to “grant[] an
extension under Subsection (b)”), the trial court must find that
(1) “extraordinary circumstances necessitate the child remaining” in the
Department’s temporary managing conservatorship and (2) continuing
the Department’s appointment as temporary managing conservator is
in the child’s “best interest.” Id. If the court makes those findings, it may
“retain the suit on [its] docket” even if it has not commenced the trial
within one year. Id. If it fails to either timely commence the trial or make
these required findings, “it may not retain the suit on the court’s docket.”
Id.
The Court holds in this case that (1) the Family Code requires
trial courts to “expressly” announce the two required findings, either in
a written order or orally on the record, but (2) a trial court’s failure to
expressly announce the required findings does not terminate the trial
court’s jurisdiction, so a parent may waive an objection to the lack of
findings by failing to timely assert that objection. See ante at ___. As to

1 Subsection (b-1) authorizes a court that timely commenced trial to
extend the deadline and retain the case on its docket if it grants a new trial or
mistrial or receives the case again on remand after an appeal from its final
judgment. TEX. FAM. CODE § 263.401(b-1). Because the court here did not
timely commence the trial, this subsection does not apply.

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both points, I read the Family Code to provide the opposite: (1) a trial
court’s jurisdiction necessarily terminates if it fails to timely make the
required findings because the court cannot “grant[] an extension under
Subsection (b)” unless it makes the required findings, but (2) the Code
does not require express findings, so the findings may be implied by the
record and a trial court’s order. Here, the trial court expressly made the
best-interest finding orally on the record in open court. Based on the
record and the trial court’s order, I would conclude the court also
impliedly made the extraordinary-circumstances finding. Like the
Court, I would reverse and remand this case for the court of appeals to
address Mother’s other appellate issues, but I would do so for the
opposite reasons. I therefore concur in the Court’s judgment, but
respectfully cannot join its opinion.
I.
Jurisdiction
Subsection (a) of Section 263.401 states that a trial court’s
“jurisdiction over the suit . . . is terminated” unless the court has timely
“commenced the trial on the merits or granted an extension under
Subsection (b).” TEX. FAM. CODE § 263.401(a) (emphasis added).
Subsection (b), in turn, provides that unless the court has commenced
the trial or made the required extraordinary-circumstances and
best-interest findings, the court “may not retain the suit on the court’s
docket.” Id. § 263.401(b). So to “grant[] an extension under Subsection
(b),” as Subsection (a) requires, the court must “retain the suit” on its
docket under Subsection (b). And to do that, the court must make the
required findings.

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The Court reads these two provisions separately. The Court
agrees that, under Subsection (a), a trial court loses jurisdiction if it fails
to timely commence the trial or “grant[] an extension under Subsection
(b).” Ante at ___. But, according to the Court, if the trial court grants an
extension without making the findings required to retain the suit on its
docket, its jurisdiction is not terminated. Id. at ___. But a court that
grants an extension without making the required findings has not
“granted an extension under Subsection (b).” And so, under Subsection
(a), its jurisdiction terminates, and the suit is automatically dismissed.
Subsections (a) and (b) expressly require us to read them
together. By terminating the court’s jurisdiction unless it has timely
commenced trial or “granted an extension under Subsection (b),”
Subsection (a) expressly refers to and incorporates Subsection (b)’s
requirements for granting an extension. See TEX. FAM. CODE
§ 263.401(a) (emphasis added). This was our exact holding just two
terms ago: Subsection (b) “sets forth the circumstances in which the
automatic dismissal date—and thus the trial court’s jurisdiction over the
suit—may be extended.” In re G.X.H., 627 S.W.3d 288, 296 (Tex. 2021)
(emphasis added). And under Subsection (b), the court cannot extend
the dismissal date and retain the suit on its docket “after the time
described by Subsection (a),” unless it makes the two required findings.
See TEX. FAM. CODE § 263.401(b). Reading Subsections (a) and (b)
together, as their plain language requires, the court loses jurisdiction if
it fails to grant an extension, and the only way it can grant an extension
is by making the required findings. The findings, in other words, are a
“prerequisite for granting an extension of the dismissal date” under

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Subsection (a). G.X.H., 627 S.W.3d at 297. So, if the court fails to make
the required findings, it cannot have granted an extension “under
Subsection (b),” as Subsection (a) requires, and it thus loses jurisdiction
and cannot retain the suit on its docket.
Under the Court’s construction, Subsection (b)’s declaration that
the court “may not retain the suit on the court’s docket” must mean
something different than Subsection (a)’s declaration that the court’s
“jurisdiction over the suit . . . is terminated and the suit is automatically
dismissed without an order.” See ante at ___. According to the Court, a
trial court that fails to timely commence trial loses jurisdiction if it also
fails to “grant[] an extension under Subsection (b),” but it does not lose
jurisdiction if it grants an extension without making the findings
Subsection (b) requires (even though the court cannot “grant[] an
extension under Subsection (b)” unless it makes the findings). See id. at
___. Instead, the Court asserts, a trial court that grants an extension
without making the findings Subsection (b) requires has nevertheless
“granted an extension under Subsection (b)” and thus retains
jurisdiction; but still, it “may not retain the suit” on its docket, whatever
that means. See id. at ___.
I agree that, as a general rule, we must presume that different
statutory phrases carry different meanings. See In re D.S., 602 S.W.3d
504, 514 (Tex. 2020). But that presumption cannot prevail when one of
the phrases can only mean the same as the other. Here, the statute
provides that a trial court’s failure to make the required findings has
two effects: (1) under Subsection (b), the court cannot retain the case on
its docket, and (2) under Subsection (a), the court cannot grant an

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extension that preserves its jurisdiction. See TEX. FAM. CODE
§ 263.401(a), (b). Read together, “cannot retain the suit on its docket”
can only mean “loses jurisdiction,” and the case is automatically
dismissed.
In fact, Section 263.403 supports this reading by providing that if
the court enters an order that temporarily returns the child to the
parent, then “[n]otwithstanding Section 263.401, the court may retain
jurisdiction and not dismiss the suit.” Id. § 263.403(a). Section 263.403
confirms that Section 263.401 uses the phrases “jurisdiction over the
suit . . . is terminated,” “the suit is automatically dismissed,” and “the
court may not retain the suit on the court’s docket” interchangeably to
describe that the court no longer has the power to hear the case.
The Court contends that we recently held otherwise in G.X.H.
Ante at ___. But we did not. We held in G.X.H. that, “while a trial court’s
failure to timely extend the automatic dismissal date before that date
passes—through a docket-sheet notation or otherwise—is jurisdictional,
claimed defects relating to the other requirements of [Section] 263.401(b)
are not.” 627 S.W.3d at 301 (emphasis added). But the “other
requirements of [Section] 263.401(b)” to which we referred in that
holding were “other” requirements that apply after a court makes the
required findings and retains the suit on its docket, not the required
findings themselves.
The parents in G.X.H. argued, first, that the trial court did not
extend the dismissal date under Subsection (b) and thus lost jurisdiction
under Subsection (a) because the court did not enter an order and
instead, after conducting an oral hearing in open court, noted on its

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docket sheet that it was granting an extension and continuance. Id. at
298. In response to that argument, we held that the docket-sheet entry
sufficiently granted the extension and, because the parties failed to
provide the record of the oral hearing, we presumed that “the trial court
made the necessary findings to support the extension orally on the
record at the hearing.” Id. at 299.
We then turned to the parents’ separate argument that “the
extension was invalid because the trial court” failed to satisfy
Subsection (b)’s “other requirements”; that is, it “failed to enter an order
setting a new dismissal date and trial date before the initial dismissal
date passed.” Id. at 300–01. In support of this argument, the parents
relied not on Subsection (b)’s first sentence, which requires the findings
as “a prerequisite for granting an extension of the dismissal date” under
Subsection (a), nor on its second sentence, which “limits the length of
the extension to 180 days,” but on its third sentence, which “directs the
trial court that has [made the required findings and] granted an
extension to render an order that does three things: schedules the new
dismissal date, makes further temporary orders as necessary for the
children's safety and welfare, and sets the trial date.” Id. at 297
(describing TEX. FAM. CODE § 263.401(b)). Referring only to the third
sentence’s requirements—which apply only after the court has made the
required findings and granted an extension and thus retained the case
on its docket and its jurisdiction over the case—we explained that
“claimed defects relating to the other requirements of [Section]
263.401(b) are not” jurisdictional. Id. at 301.

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G.X.H. thus confirms that a trial court loses jurisdiction if it fails
to timely extend the dismissal date, and that the court must make the
extraordinary-circumstances and best-interest findings to extend the
dismissal date. Once the court has made the findings and thus “granted
an extension under Subsection (b),” its jurisdiction does not terminate,
the suit is not automatically dismissed, and the court may retain the
suit on its docket. At that point, Subsection (b)’s third sentence requires
the court to enter an order that schedules a new dismissal date, makes
further temporary orders as necessary for the children’s safety and
welfare, and sets a trial date. See TEX. FAM. CODE § 263.401(b). But its
failure to meet those requirements does not terminate the court’s
jurisdiction because those requirements are not necessary to “grant[] an
extension under Subsection (b).” The court’s failure to make the findings
required to extend the dismissal date, however, does.
Before today, the Court has never held that the findings
Subsection (b) requires to extend the dismissal date under Subsection
(a) are not jurisdictional. But we have confirmed in G.X.H. that “a trial
court’s failure to timely extend the automatic dismissal date before that
date passes . . . is jurisdictional.” G.X.H., 627 S.W.3d at 301. And under
Subsection (a), the court cannot extend the dismissal date by “grant[ing]
an extension under Subsection (b)” unless it makes the findings
Subsection (b) requires. See TEX. FAM. CODE § 263.401(a). Because a
court’s jurisdiction terminates if it fails to extend the dismissal date
“under Subsection (b),” and it cannot extend the dismissal date under
Subsection (b) unless it makes the required findings, a court that grants

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an extension without making the required findings loses jurisdiction
and cannot retain the suit on its docket.
II.
Implied Findings
Because a trial court’s jurisdiction terminates if it fails to
commence the trial before the dismissal date or grant an extension
under Subsection (b), a party may challenge any order entered after that
date as void, even if the party did not preserve that objection. In this
case, the trial court orally announced a finding that extending the
dismissal date and keeping the Department as temporary managing
conservator was “in the child’s best interest,” and it ordered that the
dismissal date be extended, but it did not expressly announce the finding
that “extraordinary circumstances necessitate the child remain[]” in the
Department’s temporary managing conservatorship. This raises the
issue of whether Section 263.401 requires a trial court to expressly
announce the required findings, either in a written order or orally on the
record, or whether we may infer that it made the finding in light of the
record and the court’s order extending the dismissal date.
The Court holds that Section 263.401(b) requires trial courts to
expressly announce the required findings, even though nothing in that
subsection’s language imposes that requirement. See ante at ___. In the
Court’s view, the failure to expressly announce the findings necessarily
equates to a failure to “make” the findings. I disagree. Although I do
agree that, as we advised in G.X.H., courts should expressly announce
their findings in a written order to avoid any risk of confusion or
misunderstanding, 627 S.W.3d at 299, I cannot agree that Subsection
(b) requires them to do so. In holding otherwise, the Court relies on our

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precedent and on the subsection’s “amendment history.” See ante at ___.
I do not agree that either supports the Court’s conclusion.
As to our precedent, the Court first relies on our statement that,
“for the suit to remain on the court’s docket beyond the one-year
dismissal date,” the court “cannot just enter an extension order” but
instead “must make specific findings to support the extension order.” Id.
at ___ (quoting In re Dep’t of Fam. & Protective Servs., 273 S.W.3d 637,
643 (Tex. 2009) [hereinafter In re DFPS]). I completely agree with that
statement. Section 263.401 expressly requires trial courts to make two
specific findings as a prerequisite to granting an extension. See TEX.
FAM. CODE § 263.401(b). But Section 263.401 does not require the trial
court to expressly announce those findings, and we did not hold or
suggest in In re DFPS that it does. Indeed, that case did not present that
issue, or anything related to it. Instead, it involved a suit in which the
trial court timely commenced the trial but then granted a new trial after
the one-year deadline without ever making any findings or granting an
extension. See In re DFPS, 273 S.W.3d at 640.
Next, the Court relies again on G.X.H., suggesting that we held
there that, “to avoid error, the findings must be ‘made orally on the
record or in some other writing.’” Ante at ___ (quoting G.X.H., 627
S.W.3d at 299). Actually, what we held was that a trial court’s failure to
“make the findings in a written order . . . is not error, provided the
findings are made orally on the record or in some other writing.” G.X.H.,
627 S.W.3d at 299 (emphasis added). We announced this holding
because the trial court there did not announce its finding in a written
order, and the parties failed to provide a transcript of the oral hearing.

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See id. Relying on our well-established rule that all findings necessary
to support a judgment “are implied” when express findings are neither
issued nor requested, we presumed that “the trial court made the
necessary findings to support the extension orally on the record at the
hearing.” Id. (first citing Shields Ltd. P’ship v. Bradberry, 526 S.W.3d
471, 480 (Tex. 2017) (“When neither party requests findings of facts and
conclusions of law following a nonjury trial, all fact findings necessary
to support the trial court’s judgment are implied.” (emphasis
added)); and then citing BMC Software Belg., N.V. v. Marchand, 83
S.W.3d 789, 795 (Tex. 2002) (“When a trial court does not issue findings
of fact and conclusions of law with its special appearance ruling, all facts
necessary to support the judgment and supported by the evidence are
implied.” (emphasis added))).
In light of the limited issue G.X.H. presented, we held that it
would not be error for the trial court to fail to expressly announce the
findings in a written order if the court expressly announces the findings
orally on the record. But we did not address whether—much less hold
that—it would be error for the trial court to fail to expressly announce
the findings at all, because G.X.H. did not present that issue. Instead,
we relied on our well-established rule requiring that necessary findings
be implied when express findings are neither issued nor requested.2 If

2 The Court suggests that a trial court cannot impliedly make the
required findings because “[o]ur decisions addressing implied findings have
typically involved implied findings of fact and conclusions of law to support a
judgment, not a procedural case-processing requirement like the one at issue
here.” Ante at ___ (footnote omitted) (citing Shields, 526 S.W.3d at 480). But as
the above quotations from Shields and BMC Software demonstrate, we
expressly relied in G.X.H. on those exact decisions, reasoning that because

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that well-established rule supports G.X.H.’s holding that we can
presume that the trial court “made” the findings when the record is
missing, it certainly supports the conclusion that an available record can
establish that the findings were implied.
Next, the Court relies on the fact that the legislature has
amended Section 263.401 several times throughout the years, first to
add a requirement that the trial court “find[] that” continuing the
Department’s temporary conservatorship is in the child’s best interest,
then to add a requirement that the court find that extraordinary
circumstances necessitate that decision, then to require that the court
“make” those findings to retain the case on its docket, and later to
require the court to “consider” certain facts when making the findings.
Ante at ___. No doubt, the legislature has repeatedly and increasingly
stressed that trial courts must thoughtfully “make” the required
findings as a prerequisite to granting an extension, but through all of
those amendments it has never once addressed how courts must make
them. Although the legislature is deemed to be aware of our
well-established rule that necessary findings are implied when express
findings are neither issued nor requested, it has never amended the

such findings can be implied, they can also be presumed when the record is
missing. The Court also suggests that if trial courts could impliedly make the
findings, we would have had no need to presume that the trial court made the
findings in G.X.H. and instead “we would have reviewed the entire record of
the case ourselves to confirm whether” the trial court implied made the
findings. Id. at ___. But we had no record to review in G.X.H. The reason we
had to presume that the trial court made the findings in that case was because
we had no record to confirm the findings were expressed or implied.

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statute to require that trial courts expressly announce the required
findings.
In that regard, the Court’s suggestion that the statute’s use of the
word “make” somehow requires courts to expressly announce the
findings is likewise unavailing. Relying on select definitions from
Black’s Law Dictionary, the Court suggests that the word “make”—
which the statute does not define—necessarily requires “affirmative and
observable actions by the ‘maker.’” Id. at ___ & n.3. Setting aside
whether the term’s “legal” definition actually supports that assertion,
we must construe undefined words in a statute by applying their
common, ordinary meaning, not a limited or obscure legal definition, so
that ordinary citizens can rely on the statute’s language to mean what
it plainly says. See PHI, Inc. v. Tex. Juv. Just. Dep’t, 593 S.W.3d 296,
303 (Tex. 2019); Tex. State Bd. of Exam’rs of Marriage & Fam.
Therapists v. Tex. Med. Ass’n, 511 S.W.3d 28, 34–35 (Tex. 2017). The
common, ordinary meaning of “make,” of course, includes “to frame or
formulate in the mind” and “to form and hold in the mind.” Make,
MERRIAM WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2003).
The Court suggests that the statutory context requires us to give
“make” a technical legal meaning because the term governs judges’
actions, and judges understand legal meanings. Ante at ___ & n.3. But
if that were true, no statute would ever need to expressly require judges
to make findings in a written order or on the record, yet numerous
Family Code provisions do just that. These include, for example:
• “If the court makes an affirmative finding under Subsection
(a), the court shall issue a protective order that includes a
statement of that finding.” TEX. FAM. CODE § 261.504(b).

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• “If the court finds that visitation between a child and a parent
is not in the child’s best interest, the court shall render an
order that: (1) states the reasons for finding that visitation is
not in the child’s best interest . . . .” Id. § 263.109(b)(1).

• “Notwithstanding Section 263.401, the court may retain
jurisdiction and not dismiss the suit or render a final a final
order as required by that section if the court renders a
temporary order that: (1) finds that retaining jurisdiction
under this section is in the best interest of the child.” Id.
§ 263.403(a)(1).

• “If a court finds that a health care professional has been
consulted regarding a health care service, procedure, or
treatment for a child in the conservatorship of the department
and the court declines to follow the recommendation of the
health care professional, the court shall make findings in the
record supporting the court’s order.” Id. § 266.005.

These provisions demonstrate that the legislature knows how to
require express findings in a written order or in the record when it
intends to impose that requirement. Yet despite the repeated
amendments the Court so meticulously describes, the legislature has
never amended Section 263.401 to impose such a requirement. In my
view, this silence necessarily speaks volumes. See Lippincott v.
Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015) (“We presume the
Legislature included each word in the statute for a purpose and that
words not included were purposefully omitted.”). For these reasons, I
conclude that although Section 263.401(b) requires a trial court to make
the extraordinary-circumstances and best-interest findings as a
prerequisite to granting an extension and retaining its jurisdiction, it

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does not require that the court expressly announce those findings in a
written order or orally on the record.
I also conclude that the record in this case establishes that the
trial court impliedly made the extraordinary-circumstances finding. The
parents made an eleventh-hour request for a jury trial, the child’s
attorney ad litem was absent when the case was called, and logistical
issues related to the COVID-19 pandemic complicated the court’s ability
to timely commence the trial. Considering these obstacles to a timely
trial, the Department asked the trial court to find that extending the
deadline, retaining the case on the court’s docket, and keeping the
Department as managing conservator would be in the child’s best
interest. As the Court concedes, the Department was indisputably
“requesting an extension under Section 263.401.” Ante at ___. After
neither parent objected, the trial court orally made that requested
finding and extended the dismissal date. And all parties confirmed—
twice—that there was not “anything else” they wanted to bring to the
court’s attention. Under these facts and our well-established rule
requiring implication of findings necessary to support a ruling, I
conclude that the trial court implicitly but necessarily found that
extraordinary circumstances required that the child remain in the
Department’s temporary managing conservatorship.
III.
Conclusion
Under the Family Code’s plain language, a trial court’s
jurisdiction terminates if it fails to timely make the findings required to
extend the automatic dismissal date, but the trial court need not
expressly announce those findings. Here, the trial court impliedly made

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the extraordinary-circumstances finding, so I agree with the Court that
the court of appeals’ judgment should be reversed, and the case should
be remanded so the court of appeals can address Mother’s other
appellate issues. But because I respectfully disagree with the Court’s
reasoning, I join only in its judgment.

Jeffrey S. Boyd
Justice

OPINION FILED: June 16, 2023

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