FILED, ‘4mm COURT OFA F APPEALS : No, 14-03:342-CV sae INTHE ‘yun = 2 2005 €D WELLS FOURTEENTH COURT OF APPEALS CLERK — 7 HOUSTON, TEXAS JAMES D. HARDIN, Appellant Vs. CHARLOTTE L. HARDIN, Appellee Appealed from the 246" Judicial District Court, Harris County, Texas 7 APPELLANT’S ORIGINAL BRIEF - z James D. Hardin 4906 Nina Lee Lane ‘Houston, Texas (713) 682-7747 In propria persona ORAL ARGUMENT REQUESTEDNo. 14-03-342-CV. IN THE FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS JAMES D. HARDIN, Appellant vs. CHARLOTTE L. HARDIN, Appellee Appealed from the 246" Judicial District Court, Harris County, Texas APPELLANT’S ORIGINAL BRIEF James D. Hardin 4906 Nina Lee Lane Houston, Texas (713) 682-7747 In propria persona ORAL ARGUMENT REQUESTEDIV. a TABLE OF CONTENTS TABLE OF CONTENTS ..............- peer i INDEX OF AUTHORITIES ....... cestesenveeesnneeeneeeese iti CERTIFICATE OF PARTIES AND ATTORNEYS.. vi REQUEST FOR ORAL ARGUMENT......... See vii STATEMENT OF FACTS............000000essseseeseeees 2 STATEMENT OF POINTS OF ERROR. veeteteneeee 5 ARGUMENTS AND AUTHORITIES ..........000-s000 eee 7 POINT OF ERROR NO. 1 Arguments and Authorities Under Point No.1 7 POINT OF ERROR NO. 2 Arguments and Authorities Under Point No.2............--- 9 POINT OF ERROR NO. 3 Arguments and Authorities Under Point No.3........ 9 POINT OF ERROR NO. 4 Arguments and Authorities Under Point No.4... POINT OF ERROR NO. 5 Arguments and Authorities Under Point No.5...............000+5 13 POINT OF ERROR NO. 6 Arguments and Authorities Under Point No.6..........--..-+00+++ 13 POINT OF ERROR NO. 7 Arguments and Authorities Under Point No.7. ve vceeeeeee 13 POINT OF ERROR NO. 8 Arguments and Authorities Under Point No.8. ane 7 POINT OF ERROR NO. 9 Arguments and Authorities Under Point No.9....... Sone 21 POINT OF ERROR NO. 10 Arguments and Authorities Under Point No. 10xR g POINT OF ERROR NO. 11 Arguments and Authorities Under Point No.11... CONCLUSION AND PRAYER. CERTIFICATE OF SERVICE...... Abbreviations ii 25 27 27 28INDEX OF AUTHORITIES Case Law Omodele v. Adams, 14-01-00999-CV [14th Dist.] 2003) . Weimer v. Weimer, 788 S.W.2d 647, 650 (Tex. App.-Corpus Christi 1990, no writ) Scott v. Younts, 926 $.W.2d 415, 418 (Tex. App.-Corpus Christi 1996, n.w-h.) City of Los Fresnos v. Gonzalez, 830 S.W.2d 627, 629 (Tex. App.-Corpus Christi 1992, no pet.)....... Roberson, 768 S.W.2d at 281............. Walker v. Packer, 827 S.W.2D 833, 849-850 (Tex. 1992). . Barr y. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex. 1992) Mapco, Inc. v. Forrest, 795 $.W.2d 700, 703 (Tex. 1990............0.0005 Cunningham v. Parkdale Bank, 660 S.W.2d 810, 813 (Tex. 1983) Moreno v. Moore, 897 S.W.2d 439, 442 (Tex. App.--Corpus Christi 1995, no writ) In re Gonzalez, 993 S.W.2d 147 (Tex.App. Dist.4 03/10/1999) . . Inre HSN, 69 S.W.3d 829, 835 (Tex. App.CCorpus Christi 2002, no pet.) ... Roosth, 889 S.W.2d at 456....... fee Daniels, 811 S.W.2d at 280 Ex parte Hightower, 877 S.W.2d 17, 20 (Tex. App.-Dallas 1994, orig. proceeding, writ dism'd w.oj.) . Roosth v. Daggett, 869 S.W.2d 634, 637 (Tex. App.-Houston [14th Dist.] 1994, orig. proceeding) In re Mater Moers, No. 01-01-00635-CV (Tex. App. Dist.1 02/13/2003) ii ul nT Ml 12 1B B 14 14 14 15 15 15 15Goldberg v. Miller, 810 A.2d 947 (Md. 2002) eee eee eee ee D.H. Blair Inv. Banking Corp. v. Reardon, 97 S.W.3d 269, 273 (Tex. App.Houston [14th Dist.] 2002, pet. filed) 17 Nguyen v. Intertex, Inc., 93 S.W.3d 288, 293B94 (Tex. App.-Houston [14th Dist.] 2002, no pet)... 7 Curtis v. Commissioner for Lawyer Discipline, 20 S.W.3d 227, 232 (Tex. App.-Houston [14th Dist.] 2000, no pet.).............. 17 McGuire v. McGuire, 4 S.W.3d 382, 384 (Tex. App.-Houston [Ist Dist.] 1999, no pet.)..........2..5 17 Wood v. O'Donnell, 894 S.W.2d 555, 556 (Tex. App.-Fort Worth 1995, no writ)... 17 ‘Starck v. Nelson, 878 S.W.2d 302, 307 (Tex. App.-Corpus Christi 1994, no writ) 18 Watkins v. Austin, 590 S.W.2d 830, 832 (Tex. Civ. App.-Dallas 1979, no writ)... 18 In re G.IS., 940 S.W.2d 289, 293 (Tex. App.-San Antonio 1997, no pet.)....... 18,19 Cole v. Cole, 882 8.W.2d 90, 92 (Tex. App.-Houston [14th Dist,] 1994, writ denied) 19 Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex 1991) 19 Zieba v. Martin, 928 S.W.2d 782, 786 (Tex. App.-Houston [14th Dist,] 1996, no writ) 19 Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994) . beeen 20 Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001) ......... . 20 Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 577 (Tex. 2002) oe 20 Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406B07 (Tex. 1998). . 20 Schlafly v. Schlafly, 33 S.W.3d 863, 33 S.W.3d 863 (Tex. App. 11/22/2000) 23 Davis v. State, 791, S.W.2d 308 (Tex. App.—Corpus Christi 1990, pet. ref'd) . 24 Statutes Tex. Fam. Code Ann. § 154.121-.133 (Vernon 2002) . . oe caus 7 Tex. Fam. Code Ann. § 154.122............ : ce eteet eee eeee 7d iv‘Tex. Fam. Code Ann § 154.123............. re 7 9 Tex. Fam, Code Ann. § 154.125.000.000. vceeteeeeeeeeeeeees 7 Tex. Fam. Code Ann. § 154.125(b) rrr vee 7 Tex. Fam. Code Amn, §154.130....... cee eeeeeees +. 10,14 Tex. Fam. Code Ann, §154.130(@)(1)......-- beeteeeeteeeees . 10 Tex. Fam. Code Ann. §154.130(@\(3) 0.0000... ceveeereee ; 9 Tex. Fam. Code Ann, § 156.401(a)(1) (Vernon 2002) . 18 Tex. Fam. Code Ann. § 156.002(b) (Vernon 1996) . . eee . ee we 21 Tex. Fam. Code Ann, § 154.303(b) (Vernon 1996) .. 21 Tex. Fam. Code Ann. § 102.003 (Vernon 2002) veces eect eeeeeeeees 22 Tex. Fam. Code Ann. § 231.109(d) (Vernon 1996) 0.0.0.0... 0ceeceeveeeeeee 22 of Court ‘Tex.Disciplinary Rules of Professional Conduct, Rule 3.03(a)(1)......... 22 Tex. Code of Judicial Conduct Canon 3(B)(8) ...... ceseeaeeetesesaeeees 26 TexR App.P. Rule 26.1(a)(4)..... ee 911 TexR.Civ.P. 103(@)....... poebpesennseesaeadas o 24 TexRCiv.P. 301 .. cect teeeees ceceees 13 Tex R Civ.P. Rule 306(a)(3).... feceeeeee 10,11 Tex.R.Civ.P. 306(a)(4) . . ‘i oo cre : 10 TexRCivE. 802.. veeeeeeee : veeeeeeee 24No, 14-03-342-CV. IN THE FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS JAMES D. HARDIN, Appellant Vs. CHARLOTTE L. HARDIN, Appellee CERTIFICATE OF PARTIES AND ATTORNEYS In order that members of this Court may determine disqualification or recusal under the Texas Rules of Appellate Procedure 15 and 15a, the Appellant certifies that the following is a complete list of the parties, attorneys, and other persons with a financial interest in the outcome of this lawsuit Appellant Attorney. James D. Hardin ‘None 4906 Nina Lee Lane Houston, Texas 77092 Appellee Attorney Charlotte L. Hardin None 4243 Daisy Meadow Dr. Katy Texas 77449 ‘Trial Judge . Honorable Don Ritter viNo, 14-03-342-CV. ~ IN THE FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS JAMES D. HARDIN, Appellant - Vs. - CHARLOTTE L. HARDIN, Appellee = REQUEST FOR ORAL ARGUMENT The Appellant, James D. Hardin, requests oral argument in this case to emphasize and clarify the written arguments contained herein. See Tex. R. App. P. 39.1. Appellant will be prepared to respond to questions during the time allotted Appellant for oral argument.No. 14-03-342-CV ~ INTHE FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS JAMES D. HARDIN, Appellant, vs. - CHARLOTTE L. HARDIN, Appellee. - APPELLANT’S ORIGINAL BRIEF TO THE HONORABLE FOURTEENTH COURT OF APPEALS, HOUSTON: Appellant, James D. Hardin, submits his brief. For clarity, James D. Hardin will be . referred to as Appellant or James. The Appellee, Charlotte L. Hardin, will be referred to as Appellee or Charlotte Appellant brings this appeal before this honorable court to seek correction of those certain errors of law committed by the 246th Judicial District Court, Harris County and the issuance of an Order by that Court propounded by those errors, as will be set out and detailed herein. Appellant was the Movant in the trial court, Appellee was the Respondent in the trial court.STATEMENT OF THE FACTS This is a family law case to modify a child-support order. The Honorable Don Ritter was presiding judge of the 246th Judicial District Court, Harris County, Texas at trial. In January, 2003, his term expired and the Honorable Judge Jim York assumed the office. On October 3, 2001 the Agreed Final Decree of Divorce Order was signed. The Agreed order awarded child-support compliant with child-support guidelines, but awarded access and possession to the non-custodial parent that varied significantly from those respective guidelines. On September 27, 2001, Appellant was asked to resign by his employer, SpawMaxwell in Houston, and was given $3,000 severance pay and insurance coverage until October 31, 2001. From September 27, 2001, forward, Appellant actively sought new employment in the Houston area but received no offers of employment. On November 16, 2001, Appellant accepted the only offer of employment he had received since September 27, 2001, which was with C. F. Jordan, LP. in Dallas, Texas. Appellant relocated and began work on Monday, November 19, 2001. On ‘November 29, 2001 Appellant filed his petition to modify child-support and to modify access and possession because of the relocation, On March 8, 2002, Appellant received verbal reduction-in-force notice and on March 15, 2002, received his final paycheck from C. F. Jordan, L.P. Appellant returned to Houston and applied for unemployment benefits on March 16, 2002. Appellant received a statement of unemployment benefits from Texas Workforce Commission dated March 18, 2002 and began receiving unemployment checks. Appellant actively sought work while receiving unemployment checks. On May 28, 2002, this case came to trial. The trial court docket sheet reflects that summary judgment was entered in favor of Appellant. Appellee’s attomey retuned to the trialcourt the next day and requested a new trial. A new trial was granted but no order granting new trial was signed by the trial court. The trial court did not sign an order setting out the summary judgment rendered in open court on May 28, 2002. The new trial date was set for September 23, 2002. On or about July 19, 2002, Appellant received an offer for employment that was to begin the following Monday and did not submit his unemployment compensation voucher for that week. The job offer did not materialize. The prospective employer delayed the start date several times over the following four (4) weeks, but Appellant was told repeatedly by this prospective ‘employer that he would be ready for Appellant “in just a few days”. Appellant did not attempt to restart his unemployment checks during this period. ‘On August 20, 2002, the vehicle occupied by Appellant was resting at a red light in Houston and was struck by the vehicle of an uninsured motorist. Appellant filed a police report the day of the accident. Appellant presented himself to the Northwest Memorial Hermann Hospital in the early evening of August 20, 2002 with severe back pain. The treating physician at Northwest Memorial Hermann Hospital diagnosed the Appellant as having a broken back, admitted him to the hospital for overnight stay, and the next day released Appellant with a back brace, pain medication and specific instructions, Appellant received continued and ongoing medical treatment for his broken back at regular intervals between August 20, 2002, and November 11, 2002, the day of the trial in this case. Appellant did not seek immediate employment between August 20, 2002, and November 11, 2002. Between May 28, 2002, and September 23, 2002, Appellee obtained new counsel. The trial date of September 23, 2002 was reset to November 11, 2002, due to a medical emergency of Appellee’s attorney. Discovery in this case was concluded prior to the May 28, 2002, originaltrial date. The request for modification of access and possession was not withdrawn with amended pleading prior to trial. ‘At trial, November 11, 2002, Appellant testified that he was unemployed and unavailable for employment at that time due to his injuries. Written evidence was offered at trial to support these statements by Appellant. An Associate Attorney General appeared at trial and introduced herself into the proceedings. At the conclusion of the trial, the court verbally denied Appellant all relief requested. The parties returned to court for a hearing on November 22, 2002, for the signing of the order. ‘The order was prepared by Appellee’s trial attorney. Appellant’s trial attorney refused to sign the order, stating it did not reflect the trial proceedings. The same Associate Attorney General present at the trial signed the order approving it. The order was not signed by the court in the presence of Appellant and Appellant’s trial attorney on November 22, 2002. At that time, the trial court stated that it was granting the Motion To Withdraw submitted by Appellant’s trial attomey. On December 3, 2002, Appellant acquired actual knowledge of the final order signed on November 22, 2002. The order entered by the court on November 22, 2002, denied Appellant ail relief requested and ordered Appellant to pay additional child support in the amount of attorney’s fees assessed at $2,250.00. Appellant filed a request for findings of fact and conclusions of law on December 3, 2002. On January 14, 2003, the trial court held a hearing for the purpose of either granting or denying issuance of findings of fact. The trial court denied issuance of findings of fact. Appellant filed Notice of Appeal with the trial court on January 23, 2003.STATEMENT OF POINTS OF ERROR POINT OF ERROR NUMBER 1 The trial court erred by denying any modification of Appellant's child-support obligation, thus awarding child-support in the same amount as the original child-support obligation when the weight of the evidence showed that Appellant does not have sufficient net resources to justify that amount under the guidelines of Tex. Fam. Code Ann. §154.121-.133 (Vernon 2002), and is an award that varies from the child-support guidelines. Jd. § 154.122 POINT OF ERROR NUMBER 2 The trial court abused its discretion by failing to make certain mandatory specific findings regarding the variance from the child- support guidelines. Tex. Fam. Code Ann, §154.130. The failure by the trial court to make the mandatory findings timely restricted the post-judgment actions available to Appellant. POINT OF ERROR NUMBER 3 The trial court abused is discretion by to make the mandatory findings of fact required by Tex. Fam. Code Ann, §154.130(a\3) rendering §154.130(a)(1) as a post-judgment motion unnecessary, therefore, T.R.A-P. Rule 26.1(a)(4) should control the deadline for filing a Notice of Appeal. POINT OF ERROR NUMBER 4 The trial court erred by failing to give notice immediately pursuant to RCP. Rule 306(a)(3). POINT OF ERROR NUMBER 5 The trial court abused its discretion by issuing an award of additional child support reduced to a judgment against movant without pleading, notice, submission of evidence or hearing on that issue, and without regard to Tex. Fam. Code § 156.123. POINT OF ERROR NUMBER 6 The trial court erred by awarding attomey’s fees against Appellant without the specific finding required by Tex. Fam. Code § 156,005. POINT OF ERROR NUMBER 7 The trial court erred by awarding attorney’s fees without sufficient ‘evidence to support the amount of the award and without a specific finding that the attomey’s fees were 1) in fact paid by Appellee, and 2) were diverted from the benefit of the child.POINT OF ERROR NUMBER 8 The trial court erred in finding that Appellant failed to prove that Appellant was entitled to relief under Texas Family Code §156.401 when legally and factually sufficient evidence was presented by ‘Appellant at trial to meet the burden of proof required under Texas Family Code §156.401. POINT OF ERROR NUMBER 9 The trial court abused its discretion, bordering on judicial misconduct, by signing a modification order signed by an Assistant Attomey General with no standing in the action, in an apparent attempt to convert this modification proceeding into an enforcement action, to justify the award of attomey’s fees as additional child support and for other apparent clandestine Purposes. POINT OF ERROR NUMBER 10 The trial court erred in overruling the objection of Plaintiff's counsel and directing the Plaintiff under cross-examination to interpret the meaning of the contents of the letter entered as Exhibit RIS, specifically the statement “but the only job he has is with his father making $15 an hour.” POINT OF ERROR NUMBER 11 The trial court erred by signing and entering into the record two (2) days before the signing of the final order, the Order On Motion To Withdraw. This premature act resulted in Appellant being effectively abandoned by counsel before the case was legally concluded, a condition not anticipated by nor consented by Appellant. The trial court’s premature act gives rise to the possible misrepresentation that Appellant’s counsel may have abstained from approving the final order only because he was no longer the counsel of record for Appellant.DISCUSS! INT OF ERROR NUMBER 1 ERROR NUMBER 1 The trial court erred by denying any modification of Appellant’s child-support obligation, thus awarding child- support in the same amount as the original child-support obligation when the weight of the evidence showed that Appellant does not have sufficient net resources to justify that amount under the guidelines of Tex. Fam. Code Ann, §154.121- 133 (Vernon 2002), thus the award varies from the child- support guidelines. Id. § 154.122. In Omodele v. Adams, 14-01-00999-CV [14th Dist.] 2003), this Court stated, “In awarding child-support, the trial court is required to base the amount ordered on the net resources of the parties and other applicable factors listed in the Family Code. See Tex. Fam. Code Ann. § 154.121-.133 (Vernon 2002). The Family Code sets forth guidelines for child-support payments that are presumed to be reasonable and in the children’s best interests. Jd § 154.122. These guidelines provide that an obligor-parent’s child-support obligation is to be a percentage of his monthly net resources, depending on the number of children he is to support. Jd. § 154.125.” In the instant case, Appellant had only the one child, and thus the guidelines state that his monthly child support should equal twenty percent of his net resources. Id. § 154.125(b). The record reflects that Appellant presented evidence that his employment with SpawMaxwell was terminated by agreed letter of resignation dated September 27, 2001. See Reporter's Record Exhibit R5. The record reflects that the divorce decree was signed on October 3, 2001. Appellant had no reasonable basis upon which to ask the trial court to abstain from signing the divorce decree based solely upon termination of his employment a mere six days before it was signed. Appellant had experienced unexpected unemployment in the past, and had never been unemployed for longer than two weeks under such circumstances, It was reasonable for Appellant to believe that he would be employed again within two weeks, with a salary at orvery near his salary at SpawMaxwell. Appellant asserts that material and substantial change did not occur when he agreed to resign from SpawMaxwell, The material and substantial change ‘occurred when he was forced to accept new employment at 77% of the salary he enjoyed with SpawMaxwell, and that employment required him to relocate to Dallas. It was unreasonable to ‘expect Appellant to know beforehand that the events of September 11, 2001 would potentially reduce the availability of employment in the Houston area during October and November, 2001 It. was impossible for Appellant to know on September 27, 2001, that he would not obtain new employment until November, 2001, or that his new employment would require relocation to Dallas. Appellant’s petition to modify parent-child relationship asks the trial court to modify both the child-support obligation and periods of access and possession of the child based upon his new employment and relocation. The trial court erred in disregarding the facts evidencing that the material and substantial change to the circumstances of the Appellant occurred after the divorce decree was signed on October 3, 2001, therefore, the trial court did not find in this case in the best interest of the child. “The best interest of the child” shall always be the primary consideration of the court in determining questions of managing conservatorship, possession, and support of and access to a child, Weimer v. Weimer, 788 S.W.2d 647, 650 (Tex.App.-Corpus Christi 1990, no writ). Courts may modify child support orders whenever there has been a material and substantial change in the circumstances of the child, or a person affected by a support order, and the modification is in the best interests of the child. Scott v. Younts, 926 S.W.2d 415, 418 (Tex. App.-Corpus Christi 1996, n.w.h.)DISCUSSION OF ERRORS NUMBER 2, 3 AND 4 ERROR NUMBER 2 ‘The trial court abused its discretion by failing to make certain mandatory specific findings regarding the court’s variance from the child-support guidelines, required by Tex. Fam. Code Ann, §154.130, thus restricting the post-judgment actions available to Appellant causing damage to Appellant. ERROR NUMBER 3 The trial court abused is disc by failing to make the mandatory findings of fact required by Tex. Fam. Code Ann. §154.130(a)(3) rendering §154.130(a)(1) as a post-judgment motion umnecessary, therefore, Tex.R.App.P. Rule 26.1(a)(4) should control the deadline for filing a notice of appeal. ERROR NUMBER 4 The trial court erred by fe Tex.R.Civ.P, Rule 306(a)(3). ig to give notice as required by Tex R.App.P. 26.1(a)(4) allows ninety (90) days for a notice of appeal to be filed with the trial court after the judgment is signed, if a post-judgment request for findings of fact and conclusions of law is filed with the trial court within the ten (10) days required by Tex. Fam. Code Ann, §154.130(a)(3). In the instant case, the child-support award varied from the guidelines set out in Tex. Fam, Code §154.123 because the court denied relief to Appellant and thus ordered the child-support obligation to continue at the current amount which varies substantially from Tex. Fam, Code Ann. §154.123. By reason that neither Appellant nor his attorney witnessed the signing by the trial judge of the order that was submitted to Appellant’s counsel for approval and was rejected by ‘Appellant's counsel as reflected by the record, Appellant nor Appellant's attomey received actual knowledge on November 22, 2002, of the signing of that particular order on that date.‘Appellant had reason to believe that the trial judge would not sign the order because Appellant's trial attomey had refused to approve it, The trial court did grant the Motion To Withdraw of, Appellant’s trial attomey while in court on November 22, 2002. The trial court subsequently failed to give notice to the Appellant of the signed final order as required by Tex R.Civ.P. 306(a)(3); no such notice was required to be issued to Appellant's trial attomey because of the withdrawal Appellant received actual knowledge of the signed order on December 3, 2002, the date that Appellant filed his request for findings of fact and conclusions of law with the trial court, but within the twenty (20) days allowed by Tex.R.Civ.P. 306(a\(4). Thus all deadlines remained triggered by the date the order was signed, whether Appellant had knowledge of it or not. However, Tex. Fam. Code Ann. §154,130(a)(1) requires a request for findings of fact and conclusions of law to be filed with the court within ten (10) days after the signing of the order, and in this case Appellant on day eleven (11) received actual knowledge that the trial judge did, in fact, sign and enter the order unapproved by Appellant’s trial attorney, and concurrently filed his request for findings of fact and conclusions of law with the trial court On January 16, 2003, this Court stated in Omodele v. Adams, 14-01-00999-CV (Tex. App.-Houston [14th Dist.] 2003) that, “If the trial court’s award varies from the child- support guidelines, the court is required to make certain specific findings regarding the variance. See id. § 154.130, The language of this statute is mandatory. By refusing to make the finding required by section 154.130, the trial court prevented Omodele from effectively contesting the court’s deviation from the child-support guidelines.” Appellant asserts that the findings of fact and conclusions of law were mandatory, upon finding by this Court that Point of Error Number | is affirmative. If this Court does not find 10Point of Error Number 1 is affirmative then Appellant is damaged by the conflict between Tex RCiv.P. 306(a)(3) and Tex.R.AppP. 26.1(a)(4) and Tex. Fam. Code Ann. §154.130(a)(1) because the ambiguity between them caused fatal error by Appellant when Appellant filed his notice of appeal on day 62 after the final order was signed. Appellant was restricted from filing a motion for new trial or motion to set aside because he could cite no legal basis for either, without the findings of fact and conclusions of law, before the deadlines expired for timely filing them. Likewise, any other post-judgment remedies that might have otherwise been available to Appellant, if timely findings of fact and conclusions of law had been filed, were severely restricted or estopped by the trial court’s abuse of discretion. The test for harm when the trial court has filed no findings of fact or conclusions of law is whether the appellant will be forced to ‘guess the reason or reasons the trial judge ruled against him. City of Los Fresnos v. Gonzalez, 830 S.W.2d 627, 629 (Tex. App.-Corpus Christi 1992, no pet.) When, as here, a reporter’s record is filed, those findings are not conclusive. Roberson, 768 S.W.2d at 281. A trial court abuses its discretion if it clearly fails to analyze or apply the law correctly or if its decision is arbitrary and unreasonable. Walker v. Packer, 827 s.w.2D 833, 849-850 (Tex. 1992). To Appellant, it is clear from the record that the trial court erred and/or abused its discretion when it stated at the end of the trial that its four dispositive conclusions were 1) Appellant knew at the date of divorce that he was not employed with that company, 2) Appellant new he was going to be moving, 3) Appellant did not appear in trial court with any financial records or tax returns, which are required by the Code, and 4) The burden was on Appellant to show that he was either not making the same amount of money or the reasons for it, and he has failed to do any of that. il‘The evidence and factual testimony presented at trial clearly contradict numbers 2 and 4; number 1 is a true statement, but that was not the date that material and substantial change occurred; and number 3 required Appellant to produce records that do not exist and states clearly that he is enforcing the Federal Income Tax Code. Excluding only the federal documents that do not exist, the additional documents the trial court required to be produced during the trial were prohibited by the doctrine of res judicata, and would not have been permissible as a matter of law. In general terms, res judicata is the generic term for a group of related concepts concerning, the conclusive effect given final judgments. Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628, (Tex. 1992). This general doctrine of res judicata encompasses two distinct categories: (1) res judicata, or claim preclusion, and (2) collateral estoppel, or issue preclusion. Id. Appellant’s argument relates to res judicata because the documents were being required for the purpose of using financial information dating back to prior to the date of divorce to decide the current claim, The record reflects that Appellant was unemployed and recuperating from an automobile accident on the day of the trial, and neither a statement of net resources nor copies of federal income tax returns produced at trial would have proved, disproved or mitigated either of those facts. 12DISCUSSION OF POINTS OF ERROR NUMBERS 5, 6, AND 7 ERROR NUMBER 5 The trial court abused its discretion by issuing an award of additional child support reduced to a judgment against movant without pleading, notice, submission of evidence or hearing on the issue, and without regard to Tex. Fam. Code Amn. § 156.123, ERROR NUMBER 6 The trial court erred by awarding attorney's fees against Appellant without the specific finding required by Tex. Fam. Code Ann. § 156.005. ERROR NUMBER 7 The trial court erred by awarding attorney’s fees without sufficient evidence to support the amount of the award and without a specific finding that the attorney’s fees were 1) in fact paid by Appellee, and 2) were diverted from the benefit of the child. The record reflects that the trial court was never presented any pleading containing a request for additional child support, The trial record reflects that no oral request for additional child support was made. No evidence to support an award of additional child support was centered at the trial. ‘The hearing was devoid of any mention of additional child support Texas Rule of Civil Procedure 301 provides that "[t]he judgment of the court shall conform to the pleadings, the nature of the case proved and the verdict, if any, and shall be so framed as to give the party all the relief to which he may be entitled either in law or equity." Tex.R.Civ.P, 301. A judgment is void when the facts show that the court rendering the judgment had no jurisdiction to enter the judgment. Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990). The pleadings invoke the trial court's jurisdiction to render a judgment, and the part of a judgment which the pleadings do not support is considered void. Thus, a trial court may not grant relief to a party in the absence of pleadings to support that relief, Cunningham v. Parkdale Bank, 13660 S.W.2d 810, 813 (Tex. 1983); Moreno v. Moore, 897 S.W.2d 439, 442 (Tex. App.--Corpus Christi 1995, no writ). If the court orders additional child support beyond the presumptive amount, the court must make a written finding regarding the specific reasons for deviating from the guidelines. See Tex. Fam. Code Ann. § 154.130. In re Gonzalez, 993 S.W.2d 147 (Tex.App. Dist.4 03/10/1999). If the trial court did not abuse its discretion or err in denying Appellant all relief requested, the trial court did err in awarding attorney's fees as additional child support beyond the presumptive amount without making a written finding regarding the specific reasons for deviating from the guidelines of Tex. Fam. Code Ann. § 154.123. Appellant asserts there was no evidence of the hourly rate of Appellee’s attorneys other than the court testimony of Mary Quinn (“Quinn”), Appellee’s trial attomey. Quinn testified that the $2,500.00 she was paid to represent Appellee was paid directly to her by the Appellee’s sister. It was not diverted from the benefit of the child. See Court Transcript page 100, lines 18- 20. The hourly rate testified by her was modified by the trial judge during the trial without explanation. Appellee offerred no written evidence that the hours worked by Quinn were, in fact, spent on the case at trial and Quinn did not testify that the hours she billed were expended on the case at trial. No evidence was presented addressing the reasonableness and necessariness of the attorney's fees by reason that the trial court heard no evidence that the fees were "incurred in relation to the child and were in the nature of child support," to prove they were reasonable and necessary. The trial court's award of attomey fees as child support does not dispense with the requirement that such fees be supported by evidence. See, e.g., In re H.S.N., 69 S.W.3d 829, 835 (Tex. App.CCorpus Christi 2002, no pet.) (finding no abuse of discretion in award of attorney fees where trial court heard evidence that fees, which were "incurred in relation to the child and 14are in nature of child support,” were reasonable and necessary); Roosth, 889 $.W.2d at 456 (holding, after review of evidence, that services performed by appellee's attorneys were related to needs of children); Daniels, 811 S.W.2d at 280 (observing that although issues on appeal were whether appellee had pleaded for attomey fees and whether those fees were incurred as "necessaries" for child, evidence supported award of attorney fees). Appellee testified at trial that Quinn was paid $2,500.00 to represent Appellee, but no invoices or other written proof of that amount or its payment to Quinn, was presented to the trial court See Reporter's Record, page 82, Line 25 and page 83, lines 1-11. ‘Although attomey's fees may be taxed as child support in suits brought to enforce a child~ support order, appellate courts distinguish fees awarded in suits brought to modify a child- support order because of the consequences that follow from characterizing the fees as child support. See Ex parte Hightower, 877 S.W.2d 17, 20 (Tex. App.-Dallas 1994, orig. proceeding, writ dism'd w.oj.); Roosth v. Daggett, 869 S.W.2d 634, 637 (Tex. App.-Houston [14th Dist.] 1994, orig. proceeding). Jn re Mater Moers, No. 01-01-00635-CV (Tex.App. Dist.1 02/13/2003) In re Mater Moers, Infra., continues by stating, “The case before us does not involve attorney's fees and costs incurred in a child-support enforcement proceeding. Rather, this case involves attorney's fees and costs incurred in modifying a court order affecting the parent-child relationship by creating new child-support obligations. We agree with the Fifth and Fourteenth Courts of Appeals that attorney's fees and costs may not be taxed or characterized as child support when they are incurred in a suit brought to modify the parent-child relationship that does not involve the enforcement of a child support obligation. See Ex parte Hightower, 877 S.W.2d at 21 (holding attorney ad litem fees incurred in suit to modify visitation rights are not child support and cannot be enforced through contempt power); Roosth, 869 S,W.2d at 637 (holding 15attorney's fees incurred in joint divorce proceeding are debt not enforceable through contempt power); see also Goldberg v. Miller, 810 A.2d 947 (Md, 2002) (citing Hightower in concluding that attorney ad litem fees may not be characterized as child support in modification proceeding). Because this case does not involve enforcement of child-support obligations, we hold that the trial court erred in characterizing attorney's fees as child support.” 16DISCUSSION OF POINT OF ERROR NUMBER 8 ERROR NUMBER & The trial court erred in denying all relief to Appellant, inferring that Appellant failed to prove that Appellant was entitled to relief under Texas Family Code §156.401 when legally and factually sufficient evidence was presented by Appellant at trial to meet the burden of proof required under Texas Family Code Ann, §156.401 (Vernon 2000). When the trial court does not issue findings of fact and conclusions of law, all facts necessary to support the judgment, and supported by the evidence, are implied. D.H. Blair Inv. Banking Corp. v. Reardon, 97 S.W.3d 269, 273 (Tex. App.-Houston [14th Dist.] 2002, pet. filed); Nguyen v. Intertex, Inc., 93 S.W.3d 288, 293B94 (Tex. App.-Houston [14th Dist.] 2002, no pet.). When the appellate record includes both the reporter's record and the clerk's record, the implied findings are not conclusive and may be challenged for legal and factual sufficiency. D.H. Blair Inv. Banking Corp., 97 S.W.3d at 273; Curtis v. Commissioner for Lawyer Discipline, 20 S.W.3d 227, 232 (Tex. App.-Houston [14th Dist.] 2000, no pet.). Appellant acknowledges that a trial court's ruling on child support will not be reversed on appeal unless there is a clear abuse of discretion. McGuire v. McGuire, 4 S.W.3d 382, 384 (Tex. App.-Houston [Ist Dist.] 1999, no pet.). The test is whether the trial court acted arbitrarily, unreasonably, or without reference to guiding rules or principles. Id. The reviewing court must review the evidence in the light most favorable to the trial court's actions and indulge every legal presumption in favor of the order. Id. Legal and factual insufficiency of the evidence will not be considered independent grounds of error, but will be considered in determining whether the trial court abused its discretion. Wood v. O'Donnell, 894 $.W.2d 555, 556 (Tex. App.-Fort Worth 1995, no writ), 17Appellant met the burden at trial to show that circumstances had “materially and substantially changed since the date of the order's rendition." Tex. Fam, Code Ann. §156.401(a)(1) (Vernon 2002). When reviewing whether the circumstances of a parent or child have materially and substantially changed, the reviewing court should look at the circumstances between the date of the original decree and the date of the motion to modify. See Starck v. Nelson, 878 S.W.2d 302, 307 (Tex. App.-Corpus Christi 1994, no writ), Short term slumps in parental income are not sufficient to support modification of a child support order. For this reason, Appellant did not consider the loss of his job on September 27, 2001 to be sufficient grounds to ask the trial court to abstain from si ing the final agreed order on October 3, 2001. See Watkins v. Austin, 590 S.W.2d 830, 832 (Tex. Civ. App.-Dallas 1979, no writ) ‘A court may take a parent's earning potential into consideration when determining an issue of child support. In re G.J.S., 940 S.W.2d 289, 293 (Tex. App.-San Antonio 1997, no pet.) However, in this case, such a consideration must be buffered by historical industry performance. No such evidence was presented at trial to establish that the construction industry (the sole industry from which Appellant derives his earning potential) was not affected by the events of 9/11/2001, Appellant testified that 9/11 reduced the number of jobs available in the Houston area for which he would be qualified Appellant filed the petition to modify approximately six weeks after the original agreed divorce decree due to a material and substantial change of great magnitude. The trial court could not have reasonably found that appellant's financial condition was only a temporary slump. See ‘Watkins, 590 S.W.2d at 832, The material and substantial change asserted by Appellant in his pleading involved a mandatory relocation to the city of Dallas to accept the only job opportunity 18that became available to Appellant after severance from his previous employer on September 27, 2001, in addition to a 23% reduction in salary. The trial court could not have reasonably found that appellant's financial conditions had not materially and substantially changed because of appellant's high earning potential. See In re G.J.S., 940 S.W.2d at 293. Appellant’s employment at the time of divorce, with SpawMaxwell, was terminated on 9/27/01 primarily because of the events of 9/11/01. See Reporter's Record pg. 15, lines 18-25 and pg. 16, lines 1-4, Appellant testified at trial that the events of 9/11 were the proximate cause of his inability to secure comparable new employment in the Houston area. A broader geographic area was needed. It ‘would have been unreasonable for the trial court to expect Appellant to maintain a salary level that others in his industry were unable to maintain because of force majeure. Appellant concedes that no evidence was offered at trial setting out what the financial circumstances of the Appellant were at the time the original decree of divorce was entered, but he asserts that he did present sufficient documentary evidence to prove his financial circumstances at the time of the hearing on the motion to modify, therefore, the trial court abused its discretion in making the apparent determination that there had not been a material and substantial change, as differentiated from Cole. See Cole, 882 S.W.2d at 92. Accordingly, Appellant asserts that the trial court did abuse its discretion in determining that appellant had not proved a material and substantial change in his financial circumstances that warranted a reduction in child support payments. Under the abuse of discretion standard, the legal and factual sufficiency of the evidence are not independent grounds of error, but are merely factors in assessing whether the trial court abused its discretion. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991); Zieba v, Martin, 928 S.W.2d 782, 786 (Tex. App.Houston [14th Dist.] 1996, no writ), The Appellate Court is to review the trial court's findings of fact for legal and factual sufficiency of the 19evidence by the same standards applied in reviewing the evidence supporting a jury's finding. See Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). When reviewing the legal sufficiency of the evidence, the Appellate Court considers only the evidence and inferences tending to ‘support the trial court's finding, disregarding all contrary evidence and inferences. See Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001). A “no evidence" point will be sustained if there is no more than a scintilla of evidence to support the finding. Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 577 (Tex. 2002). In conducting a factual sufficiency review, the Appellate Court must examine the entire record, considering both the evidence in favor of, and contrary to, the challenged finding, and set aside the finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406B07 (Tex. 1998), 20DI INT OF ERROR NUMBER 9 ERROR NUMBER 9 The trial court abused its discretion, bordering on judicial misconduct, by allowing the presence of an Assistant Attorney General to be present at the trial and for signing a modification order also signed by an Assistant Attorney General giving approval to it with no standing in the action. In absence of findings of fact and conclusions of law it is not possible for Appellant to understand the reasons the trial court allowed an Assistant Attomey General to introduce herself into the trial proceedings. See Reporter's Record, page 8, lines 16-25 and page 9, lines 1-4. No statutory authority nor any case law can be located addressing this gross misconduct. This modification action was brought by Appellant as Plaintiff, against Appellee as Respondent. The State of Texas had no standing as a party to this modification action under Texas law. ‘The Tex. Fam. Code Ann. § 156.002 (Vernon 1996) states: “(b) A person or entity who, at the time of filing, has standing to sue under Chapter 102 may file a suit for modification in the court with continuing, exclusive jurisdiction.” The Tex. Fam. Code Ann. § 154.303 (Vernon 1996) states: “(b) The parent, the child, if the child is 18 years of age or older, or other person may not transfer or assign the cause of action to any person, including a governmental or private entity or agency, except for an assignment made to the Title IV-D agency.” The trial court record reflects that no pleading was ever filed asserting that the rights of the Appellee-Respondent, Charlotte L. Hardin, in the modification action had been transferred in part to the Office of the Attorney General of the State of Texas (“OAG”) as Title IV-D Agency. Even if such an action might, under restricted circumstances, allow the Title IV-D Agency to counter-file for modification, no such action occurred as evidenced by the record. aiThe Texas statutes appear to allow for such an action, should one have been filed, as found in the Tex. Fam. Code Ann. § 102.003 (Vernon 2002). It allows an original suit to be filed by a government entity, or an authorized agency, either of which the OAG would qualify. However, in the instant case, the Appellee/Respondent was represented of record by a private attorney, and Texas law explicitly forbids an employee of the OAG from representing the interests of any entity other than the State of Texas in a legal action involving Title IV-D services. Tex. Fam. Code Ann, § 231.109 (Vernon 1996) states explicitly “(@) An attomey employed to provide Title IV-D services represents the interest of the state and not the interest of any other party. The provision of services by an attorney under this chapter does not create an attorney-client relationship between the attomey and any other party. The agency shall, at the time an application for child support services is made, inform the applicant that neither the Title IV-D agency nor any attomey who provides services under this chapter is the applicant's attorney and that the attomey providing services under this chapter does not provide legal representation to the applicant.” Appellant argues that the signature of the Assistant Attomey General appearing in the final order as if approving same for whatever purpose intended was done in bad faith, was groundless and done for the purpose of harassment. Appellant argues that the signature of the Assistant Attorney General added without standing was done for the purpose of securing advantage in the Title IV-D enforcement action pending against Appellant in the Master’s court at that time. See Reporter’s Record pg. 8, lines 23-25 and pg. 9, lines 1-4. ‘The Texas Disciplinary Rules of Professional Conduct impose upon counsel the duty of candor toward the court, See TEX. DISCIPLINARY R. PROFESSIONAL CONDUCT 3.03(a)(1) (stating that a "lawyer shall not knowingly make a false statement of material fact or Jaw to a tribunal."). Similarly, both the Texas Lawyer's Creed and the Texas Standards of 22Appellate Conduct admonish counsel against making misrepresentations to a court. Schlafly v. Schlafly, 33 $.W.3d 863, 33 S.W.3d 863 (Tex.App. 11/22/2000), Appellant argues that the presence of the Assistant Attorney General inside the bar at the trial and entry of the signature of the Assistant Attomey General in the Order constituted professional misconduct. It caused bias against Appellant as exhibited by the biased behavior of the trial court against Appellant and supported by the evidence of it. Appellant argues that the presence of the Assistant Attorney General at trial denied him a fair trial and inclusion of her signature on the final order was intended to create unfair advantage over Appellant in the Title IV-D enforcement action pending against Appellant at that time. 23DISCUSSSION OF POINT OF ERROR NUMBER 10 ERROR NUMBER 10 The trial court erred in overruling the objection of Plaintiff’s counsel and directing the Plaintiff under cross-examination to interpret the meaning of the contents of the letter entered as Exhibit R15, specifically the statement “but the only job he has is with his father making $15 an hour.” Tex R.Civ-Evid. 103(a) provides that error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected. Since findings of fact and conclusions of law were not issued in this case it is not known if this evidence influenced the trial court’s ruling. However, it is presumed that if it might be found by this Court, to represent more than a “scintilla” of evidence supporting the judgment of the trial court, the error of its admittance should be raised. Plaintiff's attorney objected to the cross-examination of Plaintiff concerning the contents of the letter that reads, in part, “but the only job he has is with his father making $15 an hour.” The trial court violated Tex.R.Civ.Evid. 802 by requiring Plaintiff to testify as to “his interpretation” of the letter. See Reporter’s Record pg. 42, lines 18-22. The letter was hearsay evidence of an out-of-court statement and was, therefore, incompetent evidence to show the existence of a prior inconsistent statement. See Davis v. State, 791 S.W.2d 308 (Tex. App. Corpus Christi 1990, pet. red). This is encouraged by the contradictory statements contained in the letter immediately preceding and proceeding the statement at issue. 24zr RAL ERROR NUMBER 11 The trial court erred by signing and entering into the record two (2) days before the signing of the final order, the Order On Motion To Withdraw. This premature act resulted in Appellant being effectively abandoned by counsel before the case was legally concluded, a condition not anticipated by nor consented by Appellant. The trial court’s premature act gives rise to the possible misrepresentation that Appellant’s counsel may have abstained from approving the final order only because he was no longer the counsel of record for Appellant. Appellant learned on May 28, 2003 that the Order On The Motion For Withdrawal OF Counsel was actually signed and entered into the record by the trial court two (2) days before the trial court signed the final order. On November 22, 2002, the trial court announced it was granting the motion to withdraw, Appellant believed he was witnessing the signing of the Order for withdrawal at that time. The motion states in Paragraph 1 that the reason Appellant consented to the withdrawal because of his “expressed desire to handle his appeal pro se.” Appellant makes it clear in this Motion that the withdrawal was to take place to facilitate self-representation during the appeal process. No appeal can begin until a signed order is entered into the record from which to appeal. It was not the intent of Appellant that his trial attorney withdraw before a signed order was entered from which he could appeal pro se. Appellant asserts that Appellant’s trial attorney did not tell him the withdrawal had been granted prior to the hearing of November 22, 2002, and Appellant expresses full confidence in the integrity of his trial attorney by asserting that if his trial attomey had known such fact, he would have communicated it to Appellant. Appellant is more concerned with the reason the trial court would impulsively select, Appellant’s case file for review two (2) days before the hearing to sign the final order, notice that 25Motion To Withdraw had been filed into it two days previously, and sua sponte sign the Order without hearing. Appellant believes that the trial judge did not have knowledge of the filed Motion To Withdraw until it was brought to his attention, most likely by Appellee’s trial attorney who could have received her copy on that day by first class mail as it was mailed on November 18, 2002, This would not have been the first time that Appellee’s trial attorney committed violations of the code of professional conduct in this case. Appellee’s trial attorney conspired with the Assistant Attorney General to bring an enforcement action against Appellant after the modification action was already underway, to create bias and gain advantage over Appellant in the modification action. See Reporter’s Record page 108, lines 15-24. Appellant asserts the trial judge committed violation of the Texas Code of Judicial Conduct Canon 3(B)(8). 26CONCLUSION AND PRAYER The Appellant respectfully submits that the punitive nature of the denial of all relief requested, the original child support award reaffirmed in toto, and other orders of the court that are inconsistent with the facts underscore the pattem of bias and predisposition clearly manifested by the court in its handling of this case, Appellant further contends that the court’s award of additional child support in the form of attomey’s fees was arbitrary, unreasonable and was made without regard to guiding principles. WHEREFORE, premises considered, Appellant, James D. Hardin, prays that his points of error be sustained; that the order of the trial court below be reversed, or in the the alternative that this matter be remanded to the trial court for a new trial on the merit where all the parties will be given a fair chance to present their case. ie fames D. Hardin 4906 Nina Lee Lane Houston, Texas 77092 Telephone 713-682-7747 In propria persona CER’ ATE OF SER’ A true and correct copy of the foregoing Brief of Appellant has been delivered to Appellee, by mailing to Charlotte L. Hardin, 4243 Daisy Meadow, Katy, Texas 77449 and whose phone number is 832-593-9972, this 2nd day of June, 2003 by certified mail, 27APPENDIX STATUTES TEXAS FAMILY CODE § 154.121 FAM. Guidelines for the Support of a Child The child support guidelines in this subchapter are intended to guide the court in determining an equitable amount of child support. Added by Acts 1995, 74th Leg., ch. 20, § 1, eff. April 20, 1995. § 154.122 FAM. Application of Guidelines Rebuttably Presumed in Best Interest of Child (@) The amount of a periodic child support payment established by the child support guidelines in effect in this state at the time of the hearing is presumed to be reasonable, and an order of support conforming to the guidelines is presumed to be in the best interest of the child. (b) A court may determine that the application of the guidelines would be unjust or inappropriate under the circumstances. Added by Acts 1995, 74th Leg., ch. 20, § 1, eff. April 20, 1995, § 154.123 FAM. Additional Factors for Court to Consider (@) The court may order periodic child support payments in an amount other than that established by the guidelines if the evidence rebuts the presumption that application of the guidelines is in the best interest of the child and justifies a variance from the guidelines. (b) In determining whether application of the guidelines would be unjust or inappropriate under the circumstances, the court shall consider evidence of all relevant factors, including: (1) the age and needs of the child; (2) the ability of the parents to contribute to the support of the child; 3) any financial resources available for the support of the child; (4) the amount of time of possession of and access to a child; (5) the amount of the obligee’s net resources, including the earning potential of the obligee if the actual income of the obligee is significantly less than what the obligee could earn because the obligee is intentionally unemployed or underemployed and including an increase or decrease in the income of the obligee or income that may be attributed to the property and assets of the obligee; 28(6) child care expenses incurred by either party in order to maintain gainful employment; (7) whether either party has the managing conservatorship or actual physical custody of another child; (8) the amount of alimony or spousal maintenance actually and currently being paid or received by a party; (9) the expenses for a son or daughter for education beyond secondary school; (10) whether the obligor or obligee has an automobile, housing, or other benefits furnished by his or her employer, another person, or a business entity, (11) the amount of other deductions from the wage or salary income and from other compensation for personal services of the parties; (12) provision for health care insurance and payment of uninsured medical expenses; (13) special or extraordinary educational, health care, or other expenses of the parties or of the child; (14) the cost of travel in order to exercise possession of and access to a child; (15) positive or negative cash flow from any real and personal property and assets, including a business and investments, (16) debts or debt service assumed by either party; and (17) any other reason consistent with the best interest of the child, taking into consideration the circumstances of the parents. Added by Acts 1995, 74th Leg., ch. 20, § 1, eff. April 20, 1995. § 154.124 FAM. Agreement Concerning Support (@) To promote the amicable settlement of disputes between the parties to a suit, the parties may enter into a written agreement containing provisions for support of the child and for modification of the agreement, including variations from the child support guidelines provided by Subchapter (®) If the court finds that the agreement is in the child's best interest, the court shall render an order in accordance with the agreement. (©) Terms of the agreement in the order may be enforced by all remedies available for enforcement of a judgment, including contempt, but are not enforceable as contract terms unless provided by the agreement. 29(@) If the court finds the agreement is not in the child's best interest, the court may request the parties to submit a revised agreement or the court may render an order for the support of the child. V.T.C.A, Family Code § 154.121 FAM. et seq. Added by Acts 1995, 74th Leg, ch. 20, § 1, eff April 20, 1995. {§ 154.125 FAM. Application of Guidelines to Net Resources of $6,000 or Less (a) The guidelines for the support of a child in this section are specifically designed to apply to situations in which the obligor's monthly net resources are $6,000 or less. (0) If the obligor's monthly net resources are $6,000 or less, the court shall presumptively apply the following schedule in rendering the child support order: CHILD SUPPORT GUIDELINES BASED ON THE MONTHLY NET RESOURCES OF THE OBLIGOR 1 child 20% of Obligor's Net Resources 2 children 25% of Obligor's Net Resources 3 children 30% of Obligor’s Net Resources 4 children 40% of Obligor's Net Resources 6+ children ‘Not less than the amount for 5 children Added by Acts 1995, 74th Leg., ch. 20, § 1, eff. April 20, 1995 § 154.126 FAM. Application of Guidelines to Net Resources of More Than $6,000 Monthly (a) If the obligor's net resources exceed $6,000 per month, the court shall presumptively apply the percentage guidelines to the first $6,000 of the obligor’s net resources. Without further reference to the percentage recommended by these guidelines, the court may order additional amounts of child support as appropriate, depending on the income of the parties and the proven, needs of the child. (b) The proper calculation of a child support order that exceeds the presumptive amount established for the first $6,000 of the obligor’s net resources requires that the entire amount of the presumptive award be subtracted from the proven total needs of the child. After the presumptive award is subtracted, the court shall allocate between the parties the responsibility to meet the additional needs of the child according to the circumstances of the parties. However, in no event may the obligor be required to pay more child support than the greater of the presumptive amount or the amount equal to 100 percent of the proven needs of the child. Added by Acts 1995, 74th Leg., ch. 20, § 1, eff. April 20, 1995. 30§ 154.127 FAM. Partial Termination of Support Obligation ‘A child support order for more than one child shall provide that, on the termination of support for a child, the level of support for the remaining child or children is in accordance with the child support guidelines Added by Acts 1995, 74th Leg., ch. 20, § 1, eff. April 20, 1995 § 154.130 FAM. Findings in Child Support Order (a) Without regard to Rules 296 through 299, Texas Rules of Civil Procedure, in rendering an order of child support, the court shall make the findings required by Subsection (b) if: (1) a party files a written request with the court not later than 10 days after the date of the hearing; (2) aparty makes an oral request in open court during the hearing; or (3) the amount of child support ordered by the court varies from the amount computed by applying the percentage guidelines. (b) If findings are required by this section, the court shall state whether the application of the guidelines would be unjust or inappropriate and shall state the following in the child support order: (1) the monthly net resources of the obligor per month are $ 5 "(2) the monthly net resources of the obligee per month are $ "(G) the percentage applied to the obligor’s net resources for child support by the actual order rendered by the court is % "(4) the amount of child support ifthe percentage guidelines are applied tothe first $6,000 of the obligor’s net resources is $ "(5) if applicable, the specific reasons that the amount of child support per month ordered by the court varies from the amount stated in Subdivision (4) are: and "(6 if applicable, the obligor is obligated to support children in more than one household, and: *(A) the number of children before the court is "(B) the number of children not before the court residing in the same household with the obligor is and 31"(© the number of children not before the court for whom the obligor is obligated by a court order to pay support, without regard to whether the obligor is delinquent in child support payments, and who are not counted under Paragraph (A) or @B) is 0 (©) The application of the guidelines under Section 154.129 does not constitute a variance from the child support guidelines requiring specific findings by the court under this section, Added by Acts 1995, 74th Leg., ch. 20, § 1, eff. April 20, 1995, Amended by Acts 2001, 77th Leg,, ch. 1023, § 8, eff. Sept. 1, 2001 § 154,132 FAM. Application of Guidelines to Children of Certain Disabled Obligors In applying the child support guidelines for an obligor who has a disability and who is required to pay support for a child who receives benefits as a result of the obligor's disability, the court shall apply the guidelines by determining the amount of child support that would be ordered under the child support guidelines and subtracting from that total the amount of benefits or the value of the benefits paid to or for the child as a result of the obligor’s disability. Added by Acts 1999, 76th Leg., ch. 891, § 1, eff. Sept. 1, 1999. § 154.303 FAM. Standing to Sue (a) A suit provided by this subchapter may be filed only by: (1) a parent of the child or another person having physical custody or guardianship of the child under a court order; or (2) the child if the child: (A) is 18 years of age or older; (B) does not have a mental disability; and (C) is determined by the court to be capable of managing the child's financial affairs. (b) The parent, the child, if the child is 18 years of age or older, or other person may not transfer or assign the cause of action to any person, including a governmental or private entity or agency, except for an assignment made to the Title IV-D agency. Added by Acts 1995, 74th Leg., ch. 20, § 1, eff. April 20, 1995; Amended by Acts 1997, 75th Leg., ch. 1173, § 2, eff. Sept. 1, 1997. 32§ 156.002 FAM. Who can File (a) A party affected by an order may file a suit for modification in the court with continuing, exclusive jurisdiction. (b) A person or entity who, at the time of filing, has standing to sue under Chapter 102 may file a suit for modification in the court with continuing, exclusive jurisdiction. ‘Added by Acts 1995, 74th Leg., ch. 20, § 1, eff. April 20, 1995. § 156.401 FAM. Grounds for Modification of Child Support (a) Except as provided by Subsection (b), the court may modify an order that provides for the support of a child if: (1) the circumstances of the child or a person affected by the order have materially and substantially changed since the date of the order's rendition; or (2) it has been three years since the order was rendered or last modified and the monthly amount of the child support award under the order differs by either 20 percent or $100 from the amount that would be awarded in accordance with the child support guidelines (b) A support order may be modified only as to obligations accruing after the earlier of: (1) the date of service of citation; or (2) an appearance in the suit to modify. (©) An order of joint conservatorship, in and of itself, does not constitute grounds for modifying a support order. (@) Release of a child support obligor from incarceration is a material and substantial change in circumstances for purposes of Subsection (a)(1) if the obligor’s child support obligation was abated, reduced, or suspended during the period of the obligor’s incarceration, Added by Acts 1995, 74th Leg., ch. 20, § 1, eff. April 20, 1995; Amended by Acts 1997, 75th Leg,, ch. 911, § 16, eff. Sept. 1, 1997. Acts 1999, 76th Leg., ch. 43, § 1, eff. Sept. 1, 1999, § 102.003 FAM. General Standing to File Suit ‘his section has been amended by HOUSE BILL No. 233 OF 78th (@) An original suit may be filed at any time by 33(1) a parent of the child; (2) the child through a representative authorized by the court; (3) a custodian or person having the right of visitation with or access to the child appointed by an order of a court of another state or country; (4) a guardian of the person or of the estate of the child; (5) a governmental entity; (© an authorized agency; (7) licensed child placing agency; (8) a man alleging himself to be the father of a child filing in accordance with Chapter 160, subject to the limitations of that chapter, but not otherwise; (9) person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition; (10) a person designated as the managing conservator in a revoked or unrevoked affidavit of relinquishment under Chapter 161 or to whom consent to adoption has been given in writing under Chapter 162; (11) a person with whom the child and the child's guardian, managing conservator, or parent have resided for at least six months ending not more than 90 days preceding the date of the filing of the petition if the child's guardian, managing conservator, or parent is deceased at the time of the filing of the petition; (12) a person who is the foster parent of a child placed by the Department of Protective and Regulatory Services in the person's home for at least 12 months ending not more than 90 days preceding the date of the filing of the petition; or (13) a person who is a relative of the child within the third degree by consanguinity, as determined by Chapter 573, Government Code, if the child's parents are deceased at the time of the filing of the petition. (b) In computing the time necessary for standing under Subsections (a)(9), (11), and (12), the court may not require that the time be continuous and uninterrupted but shall consider the child's principal residence during the relevant time preceding the date of commencement of the suit. ‘Added by Acts 1995, 74th Leg,, ch. 20, § 1, eff. April 20, 1995. Amended by Acts 1995, 74th Leg., ch. 751, § 8, eff. Sept. 1, 1995; Amended by Acts 1997, 75th Leg., ch. 575, § 3, eff. Sept. 341, 1997. Acts 1999, 76th Leg,, ch. 1048, § 1, eff. June 18, 1999; Acts 1999, 76th Leg., ch. 1390, § 2, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch 821, § 2.07, eff. June 14, 2001 § 231.109 FAM. Attorneys Representing State (a) Attomeys employed by the Title IV-D agency may represent this state or another state in an action brought under the authority of federal law or this chapter. (b) The Title IV-D agency may contract with private attorneys, other private entities, or political subdivisions of the state to provide services in Title IV-D cases. (©) The Title IV-D agency shall provide copies of all contracts entered into under this section to the Legislative Budget Board and the Governor's Office of Budget and Planning, along with a written justification of the need for each contract, within 60 days after the execution of the contract. @) An attomey employed to provide Title IV-D services represents the interest of the state and not the interest of any other party. The provision of services by an attorney under this chapter does not create an attorney-client relationship between the attorney and any other party. The agency shall, at the time an application for child support services is made, inform the applicant that neither the Title IV-D agency nor any attorney who provides services under this chapter is the applicant's attorney and that the attorney providing services under this chapter does not provide legal representation to the applicant. (©) An attomey employed by the Title IV-D agency or as otherwise provided by this chapter may not be appointed or act as a guardian ad litem or attorney ad litem for a child of another party Added by Acts 1995, 74th Leg., ch. 20, § 1, eff. April 20, 1995. Amended by Acts 1995, 74th Leg,, ch. 341, § 1.02, eff. Sept. 1, 1995. 35RULES OF COURT Texas Disciplinary Rules of Professional Conduct (Tex. Disciplinary R. Prof, Conduct, (1989) reprinted in Tex. Govt Code Ann,, tit. 2, subtit. G, app. (Vernon Supp. 1995)(State Bar Rules art X [[section]]9)) I ADVOCATE 3.03 Candor Toward the Tribunal (a) A lawyer shall not knowingly: (1) make a false statement of material fact or law to a tribunal; (2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act; (3) in an ex parte proceeding, fail to disclose to the tribunal an unprivileged fact which the lawyer reasonably believes should be known by that entity for it to make an informed decision; 4) fail to disclose to the tribunal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (5) offer or use evidence that the lawyer knows to be false. (b) Ifa lawyer has offered material evidence and comes to know of its falsity, the lawyer shall make a good faith effort to persuade the client to authorize the lawyer to correct or withdraw the false evidence. If such efforts are unsuccessful, the lawyer shall take reasonable remedial measures, including disclosure of the true facts. (©) The duties stated in paragraphs (a) and (b) continue until remedial legal measures are no longer reasonably possible. Texas Code of Judicial Conduct Canon 3 Performing the duties of Judicial Office Impartially and Diligently A. Judicial Duties in General. The judicial duties of a judge take precedence over all the judge's other activities. Judicial duties include all the duties of the judge's office prescribed by law. In the performance of these duties, the following standards apply: B. Adjudicative Responsibilities. (1) A judge shall hear and decide matters assigned to the judge except those in which disqualification is required or recusal is appropriate. 36(2) A judge should be faithful to the law and shall maintain professional competence in it. ‘A judge shall not be swayed by partisan interests, public clamor, or fear of criticism. (3) A judge shall require order and decorum in proceedings before the judge. (4) A judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity, and should require similar conduct of lawyers, and of staff, court officials and others subject to the judge's direction and control. (5) A judge shall perform judicial duties without bias or prejudice. (©) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socieconomic status, and shall not knowingly permit staff, court officials and others subject to the judge's direction and control to do so. (7) A judge shall require lawyers in proceedings before the court to refrain from manifesting, by words or conduct, bias or prejudice based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status against parties, witnesses, counsel or others. This requirement does not preclude legitimate advocacy when any of these factors is an issue in the proceeding (8) A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications or other communications made to the judge outside the presence of the parties between the judge and a party, an attomey, a guardian or attorney ad litem, an alternative dispute resolution neutral, or any other court appointee concerning the merits of a pending or impending judicial proceeding. A judge shall require compliance with this subsection by court personnel subject to the judge's direction and control. This subsection does not prohibit: (a) communications concerning uncontested administrative or uncontested procedural matters; (b) conferring separately with the parties and/or their lawyers in an effort to mediate or settle matters, provided, however, that the judge shall first give notice to all parties and not thereafter hear any contested matters between the parties except with the consent of all parties; (©) obtaining the advice of a disinterested expert on the law applicable to a proceeding before the judge if the judge gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond; (@ consulting with other judges or with court personnel; (e) considering an ex parte communication expressly authorized by law. 37(9) A judge should dispose of all judicial matters promptly, efficiently and fairly (10) A judge shall abstain from public comment about a pending or impending proceeding which may come before the judge's court in a manner which suggests to a reasonable person the judge's probable decision on any particular case. The judge shall require similar abstention on the part of court personnel subject to the judge's direction and control. This section does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court. This sections does not apply to proceedings in which the judge is a litigant in a personal capacity. (11) A judge shall not disclose or use, for any purpose unrelated to judicial dutie: nonpublic information acquired in a judical capacity. The discussions, votes, positions taken, and writings of appellate judges and court personnel about causes are confidences of the court and shall be revealed only through a court's judgment, a written opinion or in accordance with Supreme Court guidelines for a court approved history project. C. Administrative Responsibilities. (1) A judge should diligently and promptly discharge the judge's administrative responsibilities without bias or prejudice and maintain professional competence in judical administration, and should cooperate with other judges and court officials in the administration of court business. (2) A judge should require staff, court officials and others subject to the judge's direction and control to observe the standards of fidelity and diligence that apply to the judge and to refrain from manifesting bias or prejudice in the performance of their official duties. (3) A judge with supervisory authority for the judicial performance of other judges should take reasonable measures ot assure the prompt disposition of matters before them and the proper performance of their other judicial responsibilities. (4) A judge shall not make unnecessary appointments, A judge shall exercise the power of appointment impartially and on the basis of merit. A judge shall avoid nepotism and favoritism, A judge shall not approve compensation of appointees beyond the fair value of services rendered. D. Disciplinary Respo! (1) A judge who receives information clearly establishing that another judge has committed a violation of this Code should take appropriate action. A judge having knowledge that another judge has committed a violation of this Code that raises a substantial question as to the other judge's fitness for office shall inform the State ‘Commission on Judical Conduct or take other appropriate action. (2) A judge who receives information clearly establising that a lawyer has committed @ violation of the Texas Disciplinary Rules of Professional Conduct should take appropriate action. A judge having knowledge that a lawyer has committed a violation of the Texas Disciplinary Rules of Professional Conduct that raises a substantial question as to the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects shall ties. 38inform the Office of the General Counsel of the State Bar of Texas or take other appropriate action. Tex.R.App.P.. cases . Texas Rules of Appellate Procedure Tex Rh Ciy.Parenee eye eye Texas Rules of Civil Procedure = Tex R.Civ.E.... coe Texas Rules of Civil Evidence Tex. Fam. Code Ann. c ce cseeeseersesssssss Texas Family Code, Annotated = 39TEXAS RULES OF APPELLATE PROCEDURE SECTION Twe: A\ EALS FROM TRIAL COURT JUDGMENTS & ORDERS. TRAP 25 - 26 only on leave ofthe appellate court and on such terms as the court may prescribe. (e) Effect of appeal. Once the record has been filed in the appellate court all further proceedings in the trial court—except as provided otherwise by law or by these rules—will be suspended until the trial court receives the appellate-court mandate. sey of TAF 25: Ape Sp 1,197 york of ag. 15, 185 (8 ‘49824 [TexCate] non Former RAP [vow TRAP 25 wa send "pe penne feist 1 addtional satay eqoronets forthe Saws ote, Source, Foret TRAP (epee. ‘See Commenters, "Nae ctype 15-8, 158, TRAP 25.1 In re Arroyo, 988 S.W.2d 737, 738 (Tex.1998). ‘TRAP 25.1(a) “provides that a party may perfect an appeal merely by filing a notice of appeal. Providing a prerequisite to invoking Verburgt 0. Dorner, 959 S.W.2d 615, 616-11 (Tex. 1997). “This Court has never wavered from the princ- ple that appellate courts should not dismiss an appeal fora procedural defect whenever any arguable interpre- tation of the [TRAPS] would preserve the appeal. We have repeatedly held that a court of appeals has jurisdic- tion over any appeal in which the appellant files an instrument in a bona fide attempt to invoke the appel- late cour’s jurisdiction. Our decisions reflect the policy ‘embodied in our appellate rules that distavors disposing of appeals based upon harmless procedural defects. ‘Thus, we have instructed the courts of appeals to con- strue the [TRAPS] reasonably, yet liberally, so that the right to appeal is not lost by imposing requirements not absolutely necessary to effect the purpose ofa rule.” Dean v. LaFayette Place (Section One) Council of Co-Ouners, Inc., 999 $.W.24 814, 818 (Tex.App- Houston [Ist Dist.] 1999, no pet.). “If an appellee is satisfied with the relief granted by the trial cour, but merely wants to present additional, independent grounds for affirming the trial court's judgment, no notice of appeal is required.” In re Jed, 900 SW.2¢ 353, 355 (Tex.App—Texar- kana 1995, no writ). “In a normal appeal, although the statutes provide for filing the appeal in the appellate court, the notice of appeal is filed with the trial court clerk, pursuant to [TRAP] 40(a) [now 25.1(2)], not with the cout of appeals.” Hk TRAP 26. TIME TO PERFECT APPEAL ELEY civil Cases. The notice of appeal must be filed within 30 days after the judgment is signed, except as follows (@) the notice ofappeal mustbe fled within 90 days after the judgment is signed if any party timely files: (1) a motion for new tril; 2) a motion to modify the judgment; 8) a motion to reinstate under Texas Rule of Civil Procedure 165a; or (A) a request for findings of fact and conclu- sions of law if findings and conclusions either are required by the Rules of Civil Procedure or, if not required, could property be considered by the appellate court; (b) in an accelerated appeal, the notice of appeal must be file within 20 day after the judgment or order is signed (©) inarestricted appeal the notice of appeal must be filed within six months after the judgment or order is signed; and (@) if any party timely files a notice of appeal, another party may file a notice of appeal within the applicable period stated above or 14 days after the first filed notice of appeal, whichever is later. EEE] Criminal Cases. (a) By the defendant. The notice of appeal must be filed: (1) within 30 days after the day sentence is imposed or suspended in open court, or after the day the trial court enters an appealabe order; or 2) within 90 days after the day sentence is imposed or suspended in open court ifthe defendant timely files a motion for new tril. (b) By the State. The notice of appeal must be filed within 15 days after the day the trial court enters the order, ruling, or sentence to be appealed. Extension of Time. The appellate court may extend the time to file the notice of appeal if, ‘within 15 days after the deadline for filing the notice of appeal, the party: (@) files inthe tril court the notice of appeal; and (b) files in the appeliate court a motion complying with Rule 105(b).SECTION TWO: APPEALS FROM TRI TRAP * Hoc TAP 2 Age et Ty oder fag 15,1878 TLAPPEAL ‘WS SW. [Tex Cases} acvii). Source: Former TRAP 41, 42(a)(3), 45(@) eal must be es Gm, pea Dni” 1.6» 36 tin ela saci iby eg" Sy i «thin 90 days sey es mar. Kunstoplast, Inc. v. Formosa Plastics Corp., 937 ‘S.W.2d 455, 456 (Tex.1996). Petitioners “made bona 1 reat; | fide attempts to invoke the court of appeals’ jurisdiction er Texas Rule of by having [a nonlawyer] file their [perfecting insru- . ments}. ... Generally a corporation may be represented 1 tand conclu- only by a licensed attomey.... We hold, however, that jus either are TRAP} 41(a)(1) {now 26.1(a)], dofes] not preciude a edure or, if not nonlawyer from performing the specific ministerial the appellate ‘ask [of perfecting the appeal].” ‘Maxteld o, Terry, 888 S.W.2d 809, 811 (Tex.1994). notice of appeal Petitioner appealed two orders ofthe probate court but {Med only one instrument to perfect an appeal. “Under is Court's policy of liberally construing the [TRAPS], petitioner] made a bona fide attempt to invoke the rsdiction of the court of appeals by filing one ‘instru- [to perfect appeal] for both probate orders. The pourt of appeals should have given (petitioner) the portunity to correct any defect in the appeal before ising.” Grand Prairie ISD 0. Southern Parts Imports, , 813 SW2d 499, 500 (Tex.1991). Dismissing an - improper{i}f the appellant timely files a doc- © of appeal must nt in a bona fide attempt to invoke the appellate i's jurisdiction, [unless] the court of appeals {5} the appellant an opportunity to amend or efile Instrument... to perfect the appeal.” E Finley v. J.C. Pace Ltd.,4 S.W.34 319, 320 (Tex. .—Houston [1st Dist.] 1999, order on mot.). “A ment or order ce of appeal must sdament or order rouce of appeal, ppeal within the after the firs » Reerthe day the e day sentence tthe defendant judgment and request re llant}'s motion requested the trial court to'grant a ring’ and ‘deny defendants’ motion for summary nt.” Accordingly, the motion sought to set aside ting judgment forthe purpose of litigating the Ifthe trial court granted the motion, atrial would resulted. Thus, the motion may be considered a 9 fora new trial [under TRAP 26.1(a)(1)]." , State, 922 S.W.2d 274, 277 (Tex.App.— in 1996, writ denied). “In quo warranto actions, ts must perfect their appeals within 20 days Fihe date the final judgment was signed.” of appeal must bt >al court ene p aled. TEXAS RULES OF APPELLATE PROCEDURE L COURT JUDGMENTS & ORDERS 26 Owens-Corning Fiberglas Corp. v. Wasiak, 883 $.W.24 402, 408 (Tex.App.—Austin 1994, no writ). “The trial court's period of plenary power over its judg ment and the last day to file a mation for new trial or perfect appeal are the same: 30 days after the date the judgment is signed.” TRAP 263 Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). “We hold that a motion for extension of time is necessarily implied when an appellant acting in good faith files a [perfecting instrument] beyond the time allowed by Rule 41(a)(1) {now 26.1(@)], but within the 15-day period in which the appellant would be entitled to move to extend the filing deadline under Rule 41(@)(2) {now 263].” IKB Indus. Ld. v. Pro-Line Corp., 938S.W.24440, 443 (Tex.1997). “A request for findings of fact and con- clusions of law does not extend the time for perfecting appeal ofa judgment rendered as a matter of law, where findings and conclusions can have no purpose and should not be requested, made, or considered on appeal.” Weik o. Second Baptist Church, 988 SW.2d 437, 439 (Tex.App-—Houston [Ist Dist | 1999, et. denied). “[Alppellees argue that an appeliant is .. obligated to come forward with a reasonable explanation [for the delay). [1] [Appellant's] actions show an intentional course of conduct on the part of appellant to delay the filing of his appeal bond. [1] Consequently, we hold that no good cause exists to extend the filing deadline, and we overrule [the] implied motion for extension of time toile.” Dimotsis . State Farm Lloyds, 966 S.W.24 657,657 (TexApp—San Antonio 1998, no pet). “A motion for extension of time is necessarily implied when an appel- Jant, acting in good faith, files a notice of appeal beyond the time allowed by [TRAP] 26.1 but within the fifteen- day grace period provided by Rule 26.3 for filing a ‘motion for extension of time.” 1PM Prod. Corp. 2. Motor Parkwway Rlty. Corp., 960 S.W.2d 879, 883 (Tex.App.—EI Paso 1997, no pe.). [Wye find that [appellant]’s premature motion for reconsiderationis effective to extend the appellate time- table inthe same manner as a motion for new trial.” Searcy v. Sagullo, 915 S.W.2d 595, 596-97 (Tex. ‘App.—Houston [14th Dist] 1996, no wrt). “Unlike arntTEXAS RULES OF CIVIL PROCEDURE crration ‘TRCP 99 106 ATION | NCE & ATION aw.of the petition, the 1 ith issue a citation 16 (Tex. 582 185), Adee Sep. 1181 yoderof O28, 1940 (GTeaB540 180). Sore TRS ar 221 repel), Primate Constr., Inc. v. Siler, 884 SW.24 151, 153 (Tex.1994). “It is the responsibility of the one requesting service, not the process server, to see that ain dalle open service i property accomplished... This responsibility Fveranirrl extends to seeing that serve is properly reflected additional citations the record.’ Barker CATV Constr, Inc. ¢. Ampro, Inc, $89 '8N/24 789, 792 (Tex App.—Houstn [Ist Dist] 1999, ph). TRCP 15 "seems to conflict with rule 990), ich states the citation shall (1) be styled The State of fexas, and (8) be decd tothe defendant... 1] The tation we are reviewing in this case is a preprinted jrm addressed tothe sheriff or any constable of Texas, well as tothe defendant. The requirements of rules 8 and $9(b) can be harmonized by allowing the cta- ons tobe directed to both the sheriff or constable, as officer serving it andthe defendant, asthe person ng Sere” (ateral quotations omitted) TREP 100-102. REPEALE HE geet, yr a1 EC svete ay TREP 103. WHO MAY SERVE Citation and other notices may be served anywhere (1) any sheriff or constable or other person autho- a _ ped by lw or, 2) by any person authorized bylaw or ection 10 and 1h § written order ofthe court whois nt less than eigh- = years of age. No person who is a party too inter. a din the outcome ofa suit shall serve any process. te oom ce by registered or certified mail and citation by Sane nd MS crimes ny 0 a eae ‘ourt in which the case is pending. The order ae rizing a person to serve process may be made eg out written motion and no fee shal be imposed for rae cof such orer. Sent Deli Sat” eh 28D P-be styled “The State underseal of cour, ot the court, (4) show show date of issuance 2 (Z) show names of 2adant, (9) show the ‘or plaintiff, otherwise rin the time within i dantto file a writen ditation, (11) contain allnotify the defendant 4 to file an answer, ered for the rellel tation shall direct the =< 2 the plaintiff's peth Monday next aftr fer the date of servieg meaTh aye TCP 10: Ande fl Jn, by order oy 15,1987 Moped eft Sp 1 IB by oder Oe. 25, 190 (8 Tox. S10 p. Soa: Neve upfield v. Dean Witter Fin. Servs., Inc., 894 4 502, 505 (TexApp.—Austin 1995, writ denied). = a * — “[S]ervice of process by a private process server in ‘Texas... requires authorization by law or a written ‘order of the court. At 506: The parties do not dispute that pursuant to [TRCP] 103, a standing court order authorized ... the private process server ... to serve citation and other notices in any lawsuit filed in the dis- jet court of Travis County in which he was not an terested party.” TRCP 104. REPEALED pen ft Sn, 18H yore of uy 1, 19 C24 Sa (exCares| an) TROP 10 ws rodered vneesiy bce of amet stato TAP TRCP 105. DUTY OF OFFICER OR PERSON RECEIVING The officer or authorized person to whom process is delivered shall endorse thereon the day and hour on which he received it, and shall execute and return the same without delay. ‘Ten 4140) Sue TRCS are M2 epee). Melendes v. John R. Schatzman, Inc., 685 SW24 137, 138 (Tex.App —El Paso 1985, no writ). Service by certified mail “was attempted in the case before us; however, it does not appear that the officer receiving delivery ofthe process for service endorsed thereon the day and hour of receipt, nor was the return completed showing the execution by certified mail all as required by Rule 105..." TRCP 106, METHOD OF SERVICE (a) Unless the citation or an order ofthe court oth- cexwise directs, the citation shall be served by any per- ‘on authorized by Rule 103 by (1) delivering to the defendant, in person, a true copy ofthe citation with the date of delivery endorsed ‘thereon with a copy ofthe petition attached thereto, or (2) mailing tothe defendant by registered or certi- fied mal, return receipt requested, a true copy of the

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  3.5/5 (1937)
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  Rating: 4.5 out of 5 stars

  4.5/5 (4610)
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  Rating: 4.5 out of 5 stars

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  Rating: 4 out of 5 stars

  4/5 (3811)
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  Rating: 4 out of 5 stars

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  Rating: 4 out of 5 stars

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  Rating: 4 out of 5 stars

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  Rating: 4 out of 5 stars

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  Rating: 3.5 out of 5 stars

  3.5/5 (104)
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  Rating: 4.5 out of 5 stars

  4.5/5 (1929)