In Re G.M. v. the State of Texas

In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________
          No. 02-26-00116-CV
     ___________________________

           IN RE G.M., Relator




            Original Proceeding
 County Court at Law of Hood County, Texas
        Trial Court No. CL2019011


   Before Kerr, Birdwell, and Walker, JJ.
  Memorandum Opinion by Justice Birdwell
                           MEMORANDUM OPINION

      Relator G.M. (Mother) filed this petition for writ of mandamus in which she

contends that the trial court abused its discretion by proceeding with a hearing on

N.M.’s (Father’s) petition to modify the parent–child relationship and by entering

temporary orders in violation of Section 156.102 of the Texas Family Code. See

Tex. Fam. Code Ann. § 156.102. We agree and, accordingly, conditionally grant her

petition for writ of mandamus.

                                    I. Background

      Mother and Father dispute whether Father filed his petition to modify within

one year of “the rendition of the [previous] order.” See id. § 156.102(a). If he did, it

triggered a requirement that even the trial court acknowledged Father did not meet.

      The starting point is Mother and Father’s 2019 divorce. Under the divorce

decree, Mother had the exclusive right to designate the child’s primary residence and

to enroll the child in school. Mother and Father had alternating weeks of possession.

      Thereafter, sometime in 2024, Mother filed a petition to modify. For our

purposes, the parties agree that at the October 30, 2024 hearing on Mother’s petition,

the trial court orally rendered judgment on everything except Christmas possession.

However, the trial court did not sign a written judgment until January 2, 2025.

Mother continued as the parent with the exclusive right to designate the primary

residence of the child and to enroll the child in school.



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      Then, in October 2025, Mother purchased a home in a city an hour away from

where she had previously lived and enrolled the child in a school in that city. This

meant that during Father’s weeks of possession, the child would spend an hour being

driven to school in the morning and an hour being driven home after school in the

afternoon. This also meant that Father, during his weeks of possession, would be

spending four hours each day driving the child to and from school.

      Father filed a petition to modify the parent–child relationship on

October 24, 2025. He specifically asked that he be named as the conservator with the

exclusive right to determine the child’s primary residence.

      At the November 7, 2025 hearing, the trial court found Father’s supporting

affidavit insufficient.1 See id. § 156.102(b)(1). Mother argued that Father’s petition

should be denied and objected to proceeding any further. See id. § 156.102(c). But the

trial court proceeded anyway, finding that more than a year had passed since the

rendition—implicitly ruling that Section 156.102 did not apply—so the insufficiency

of the supporting affidavit was immaterial. After hearing the evidence, the trial court

found that there was a material change in circumstances, ordered Mother to do all the

driving to and from school during Father’s weeks of possession, reduced Father’s

child support, and appointed an amicus attorney.




      1
       The record shows that the trial court had a previous hearing, apparently off
the record, at which it held that the affidavit was insufficient.

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                                     II. Discussion

       In Mother’s first three issues, she argues that (1) the trial court miscalculated

the one-year period under Section 156.102(a); (2) the trial court, after finding Father’s

affidavit insufficient, abused its discretion by not denying 2 Father’s petition to modify

as required by Section 156.102(c); and (3) the trial court abused its discretion by

proceeding with a temporary-orders hearing because Section 156.102(c) authorizes

proceeding only if the trial court finds the supporting affidavit sufficient. See id.

§ 156.102(a), (c).

       A. Whether Father “filed” his petition to modify within one year of “the
          rendition of the [previous] order”

       Section 156.102 of the Texas Family Code discourages certain suits from being

filed within one year of the previous order, and in this instance, it required an affidavit

that made specific showings:

       (a) If a suit seeking to modify the designation of the person having the
       exclusive right to designate the primary residence of a child is filed not
       later than one year after . . . the date of the rendition of the order . . . ,
       the person filing the suit shall execute and attach an affidavit [meeting
       certain requirements].

Tex. Fam. Code Ann. § 156.102(a).

       At trial, Mother argued that the trial court was required to “deny the relief
       2

sought and deny a hearing.” But in her petition for writ of mandamus, she asks that
Father’s petition to modify be dismissed and that his request for temporary orders be
denied. Section 156.102(c) says the relief shall be denied. Tex. Fam. Code Ann.
§ 156.102(c). We are required to construe briefs liberally and to reject form over
substance whenever possible.         Kanas v. Smith-Ward, No. 02-24-00394-CV,
2025 WL 1478173, at *4 (Tex. App.—Fort Worth May 22, 2025, pet. denied) (mem.
op.). Here, we place no significance on Mother’s use of “dismiss” instead of “deny.”

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      Father filed his petition to modify on October 24, 2025. Whether we use the

“render” date (October 30, 2024) or the “signing” date (January 2, 2025), 3 Father filed

his petition to modify within one year of both the rendition and the written order.

      The trial court, however, appears to have treated November 7, 2025—the date

on which the hearing was conducted—as if it were the date on which the “suit seeking

to modify . . . [wa]s filed” for purposes of Section 156.102(a).4 If the trial court was

correct, then November 7, 2025 was more than one year from the October 30, 2024

rendition, and the Section 156.102(a) affidavit requirement was never triggered.

Father cites no authority to support the trial court’s use of the hearing date as the

filing date under Section 156.102(a).

      Nevertheless, the proposition that the date of the hearing can be used when

determining the applicability of Section 156.102 is not devoid of legal support.

See Jilek v. Chatman, 613 S.W.2d 558, 559–60 (Tex. App.—Beaumont 1981, no writ).

In Jilek, the mother did not attach any affidavit to her petition to modify. Id. at 559.

Under the statutory predecessor of Section 156.102(a), the court wrote that the proper

procedure after filing a petition to modify was to present it to the trial court and

obtain a hearing date within the one-year period. Id. Petitioners who did not present

      3
        Mother argues that we should use January 2, 2025, because it was the “final
rendition” date.
      4
       Although not a model of clarity, Mother appears to link her insistence on
using January 2, 2025, as the rendition date to the trial court’s using November 7,
2025, as the filing date. Because we reject using November 7, 2025, as the filing date,
whether we use October 30, 2024, or January 2, 2025, as the rendition date is mooted.

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their motion to modify within the one-year period could nevertheless set a hearing on

it but would no longer be required to comply with Section 156.102(a). Id. The court

concluded, “Under the facts of this case, we hold [that the mother’s] motion to

modify, which was set for hearing and actually was heard four months after the

expiration of one year following the original custody order, could properly be heard

by the trial court.”5 Id. at 560.

       On the other hand, later authority rejects the proposition that the date of the

hearing is a factor when determining the applicability of Section 156.102: “This

situation is governed by the plain meaning of Section 156.102(a), which expressly

makes the filing of the motion within the one-year time frame the trigger for its

application, and which fails to suggest that the timing of any subsequent hearing is of

any importance in that application.”           In re S.A.E., No. 06-08-00139-CV,

2009 WL 2060087, at *5 (Tex. App.—Texarkana July 17, 2009, no pet.) (mem. op.).

Section 156.102(a)’s plain meaning governs; the dispositive date is contingent on

when the petition to modify is filed, not when the trial court holds its first hearing on




       5
        This discussion in Jilek is arguably dicta. The opinion gave a second reason
why the trial court properly considered the mother’s motion to modify: the father had
filed his own petition to modify that was not subject to Section 156.102, and the
parties had agreed to consolidate and try both petitions together. Jilek, 613 S.W.2d at
560. Put differently, the father had not preserved any complaint regarding the defect
in the mother’s petition. See Tex. R. App. P. 33.1.


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the petition. 6 See Tex. Fam. Code Ann. § 156.102(a); Baumgardner v. Brazos River Auth.,

714 S.W.3d 597, 601 (Tex. 2025) (“[W]e rely on the plain meaning of the statutory

text, reading contextually ‘to give effect to every word, clause, and sentence’ and

giving undefined words their ‘common, ordinary meaning unless a more precise

definition is apparent from the statutory context or the plain meaning yields an absurd

result.’”).

        We conclude that Father filed his petition within one year of the rendition of

the previous order and thus fell within Section 156.102(a). Accordingly, the trial court

abused its discretion by concluding that Section 156.102 did not apply because more

than a year had passed since the previous rendition.

        We sustain Mother’s first issue.

        B. Whether the trial court should have denied Father’s petition to modify
           and whether it should have proceeded with the hearing after finding
           Father’s supporting affidavit insufficient

        The Section 156.102 affidavit requirement, if not complied with, has

consequences. If the affidavit fails to meet the standard set out in the statute, the trial

court is required to deny the suit and proceed no further:

        (c) The court shall deny the relief sought and refuse to schedule a
        hearing for modification under this section unless the court determines,

        Assuming October 24, 2025, was the prior rendition date, Father could have
        6

filed an amended petition on October 25, 2026, without having to comply with
Section 156.102’s requirements: “Section 156.102’s heightened pleading requirement
does not apply to an amended modification pleading filed more than one year after
the order to be modified.” In re J.A., No. 02-21-00140-CV, 2022 WL 2353096, at *3
(Tex. App.—Fort Worth June 30, 2022, no pet.) (mem. op.).

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          on the basis of the affidavit, that facts adequate to support [a required
          statutory] allegation . . . are stated in the affidavit. If the court
          determines that the facts stated are adequate to support an allegation, the
          court shall set a time and place for the hearing.

Tex. Fam. Code Ann. § 156.102(c).

          Both Mother and Father agree that the trial court held Father’s supporting

affidavit insufficient. At the November 7, 2024 hearing, Mother argued that the trial

court should deny Father’s petition to modify and objected to proceeding with the

hearing; the trial court proceeded anyway. Now that we have established that Section

156.102 did apply, we hold that the trial court should have denied Father’s petition to

modify and not proceeded to any hearing—as provided under Section 156.102(c).

See id.

          Father, however, contends that his compliance with the affidavit requirement

was mooted precisely because the trial court proceeded with an evidentiary hearing.

Father cites an unpublished opinion from the Amarillo Court of Appeals to support

his proposition that, since the affidavit requirement is there for the sole purpose of

helping the trial court determine whether an evidentiary hearing is necessary, if the

trial court proceeds with such a hearing, the issue of whether it should have done so is

no longer relevant.       See In re Barkley, 07-09-0180-CV, 2009 WL 2431499, at *1

(Tex. App.—Amarillo Aug. 10, 2009, orig. proceeding) (not designated for

publication). Father may be construing Barkley too broadly. Barkley does not state

whether the relator objected to the trial court’s proceeding with an evidentiary


                                              8
hearing, and other opinions show that a failure to object results in not preserving any

complaint pertaining to any deficiency in the affidavit under Section 156.102. See

In re J.B.J., 649 S.W.3d 828, 830 (Tex. App.—Waco 2022, no pet.); In re C.R.J.,

No. 06-13-00053-CV, 2014 WL 199209, at *4 (Tex. App.—Texarkana Jan. 17, 2014,

no pet.) (mem. op.); In re A.C.S., 157 S.W.3d 9, 17–19 (Tex. App.—Waco 2004, no

pet.); see also In re Eddins, No. 05-16-01451-CV, 2017 WL 2443138, at *5

(Tex. App.—Dallas June 5, 2017, orig. proceeding [mand. denied]) (mem. op.)

(providing summary suggesting no objection to evidentiary hearing).

      Here, Mother objected to the trial court’s proceeding with any hearing. If the

trial court could moot Section 156.102(c) by proceeding with an evidentiary hearing

despite an objection, it would unilaterally eviscerate Section 156.102(c).        Courts

cannot construe a statute in a manner that eviscerates it. See Morath v. Lampasas Indep.

Sch. Dist., 686 S.W.3d 725, 744 (Tex. 2024); Cathey v. Booth, 900 S.W.2d 339, 341

(Tex. 1995).   We decline to adopt Father’s proposed construction of Section

156.102(c); that is, we decline to give the trial court the discretion to moot the Section

156.102(c) objection raised by Mother by proceeding with a hearing. Section 156.102

expressly states that the trial court “shall . . . refuse to schedule a hearing” when the

affidavit is insufficient. Tex. Fam. Code Ann. § 156.102(c). We hold that the trial

court abused its discretion.

      We sustain Mother’s second and third issues.



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       C. Mother’s remaining issues

       By sustaining Mother’s first three issues, we will instruct the trial court to

vacate its temporary order and enter an order denying Father’s petition to modify. In

doing so, we render moot Mother’s remaining issues (4–7), which attack specific

aspects of the temporary order that resulted from the November 7, 2025 hearing.

                                  III. Conclusion

       We conditionally grant Mother’s petition for writ of mandamus. We direct the

trial court to vacate its December 19, 2025 temporary order and to enter an order

denying Father’s petition to modify the parent–child relationship. See Tex. Fam. Code

Ann. § 156.102(c). We are confident the court will comply. The writ will issue only if

it does not.

                                                    /s/ Wade Birdwell

                                                    Wade Birdwell
                                                    Justice

Delivered: April 30, 2026




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