In Re Jonathon Patrick Simons v. the State of Texas

NUMBER 13-25-00458-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN RE JONATHON PATRICK SIMONS

ON PETITION FOR WRIT OF MANDAMUS

MEMORANDUM OPINION

Before Justices Silva, Peña, and West
Memorandum Opinion by Justice West

By petition for writ of mandamus, relator Jonathon Patrick Simons contends that

the trial court 1 erred by ordering him to pay attorney’s fees as part of temporary orders

pending appeal. The temporary orders were not issued within the statutory deadlines and

are void. See TEX. FAM. CODE ANN. §§ 6.709(a), 109.001. 2 Accordingly, we conditionally

1 This original proceeding arises from trial court cause number FM54235 in the 23rd District Court

of Wharton County, Texas, and the respondent is the Honorable John C. Maher Jr. See TEX. R. APP. P.
52.2.
2 Both sections were amended, effective September 1, 2025, to include the payment of court costs

in addition to attorney’s fees and expenses. See Act 2025, 89th Leg., ch. 593 (H.B.2524), § 4, eff. Sept. 1,
2025 (now codified as TEX. FAM. CODE ANN. § 6.709); Act 2025, 89th Leg., ch. 593 (H.B. 2524), § 22, eff.,
grant the petition for writ of mandamus.

I. BACKGROUND

On March 5, 2025, the trial court signed a final decree of divorce for Jonathon and

real party in interest Heather Nicole Simons. The final decree addressed property division

and custody arrangements regarding the parties’ minor child. On April 4, 2025, Jonathon

filed a motion for new trial. On April 9, 2025, Heather filed a motion for temporary orders

pending appeal as would be “considered equitable and necessary for the preservation of

the property.” Specifically, citing two provisions of the Texas Family Code, Heather

requested the trial court to enter temporary orders requiring Jonathon to pay her

“reasonable and necessary” appellate attorney’s fees and expenses in the event that

Jonathon were to appeal the final decree of divorce. See id. §§ 6.709(a), 109.001. On

May 5, 2025, Jonathon filed a notice of appeal. Jonathon’s notice of appeal was docketed

in our appellate cause number 13-25-00247-CV and remains pending in that cause.

The trial court held an evidentiary hearing on Heather’s motion for temporary

orders pending appeal on June 4, 2025, and continued that hearing on July 8, 2025. On

July 11, 2025, the trial court signed temporary orders granting Heather’s motion which, in

relevant part, required Jonathon to pay “reasonable interim attorney’s fees and expenses”

(1) in the amount of $10,000, payable on or before August 9, 2025, and (2) an additional

$5,250 in the event that Jonathon appealed to the Texas Supreme Court, payable on or

before the date that his brief would be due in that court.

Sept. 1, 2025 (now codified as TEX. FAM. CODE ANN. § 109.001). This case arose before the effective date
of those amendments; however, the amendments have no effect on our analysis, and we cite to the current
versions of these statutes for each of reference.

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This original proceeding ensued. Jonathon asserts by one issue that the trial court

abused its discretion by ordering him to pay Heather’s appellate attorney’s fees because

Heather failed to present sufficient evidence to support the award. We requested and

received a response to the petition for writ of mandamus from Heather. See TEX. R. APP.

P. 52.4, 52.8.

II. STANDARD OF REVIEW

A writ of mandamus is an extraordinary remedy available only when the trial court

clearly abused its discretion and the party seeking relief lacks an adequate remedy on

appeal. In re Ill. Nat’l Ins., 685 S.W.3d 826, 834 (Tex. 2024) (orig. proceeding). “The

relator bears the burden of proving these two requirements.” In re H.E.B. Grocery Co.,

492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding) (per curiam); Walker v. Packer, 827

S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). However, when “a trial court issues an

order ‘beyond its jurisdiction,’ mandamus relief is appropriate because such an order is

void ab initio.” In re Panchakarla, 602 S.W.3d 536, 539 (Tex. 2020) (orig. proceeding)

(per curiam) (quoting In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig.

proceeding)). In such circumstances, the relator need not show it lacks an adequate

appellate remedy. See In re Vaishangi, Inc., 442 S.W.3d 256, 261 (Tex. 2014) (orig.

proceeding) (per curiam); In re Sw. Bell Tel. Co., 35 S.W.3d at 605.

III. ANALYSIS

Heather invoked sections 6.709 and 109.001 of the Texas Family Code in support

of her request for attorney’s fees. TEX. FAM. CODE ANN. §§ 6.709(a), 109.001. Section

6.709 of the Texas Family Code allows the trial court to enter temporary orders during an

appeal “as considered equitable and necessary for the preservation of the property and

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for the protection of the parties during an appeal.” Id. § 6.709(a). This provision expressly

contemplates the award of “reasonable and necessary attorney’s fees, court costs, and

expenses.” Id. § 6.709(a)(2). Similarly, § 109.001 authorizes the trial court to enter

temporary orders that are “necessary to preserve and protect the safety and welfare of

the child during the pendency of an appeal as the court may deem necessary and

equitable.” Id. § 109.001(a). This section also specifically allows awards for the payment

of reasonable and necessary attorney’s fees, court costs, and expenses. Id.

§ 109.001(a)(5).

Under both sections, “[t]he trial court retains jurisdiction to conduct a hearing and

sign” temporary orders “until the 60th day after the date any eligible party has filed a notice

of appeal from final judgment under the Texas Rules of Appellate Procedure.” Id.

§§ 6.709(i), 109.001(b-2). The trial court lacks jurisdiction to enter temporary orders after

the statutorily prescribed window of time, and any orders entered after the expiration of

this period are void. In re Saldana, 380 S.W.3d 890, 892 (Tex. App.—Waco 2012, orig.

proceeding); In re Norris, 371 S.W.3d 546, 550 (Tex. App.—Austin 2012, orig.

proceeding); Love v. Bailey–Love, 217 S.W.3d 33, 36–37 (Tex. App.—Houston [1st Dist.]

2006, no pet.); In re Boyd, 34 S.W.3d 708, 711 (Tex. App.—Fort Worth 2000, orig.

proceeding); see also In re Fuentes, 506 S.W.3d 586, 590 (Tex. App.—Houston [1st Dist.]

2016, orig. proceeding [mand. denied]) (“An untimely temporary order is a void order.”).

Here, under Texas Family Code sections 6.709 and 109.001, the trial court had

jurisdiction to conduct a hearing and sign temporary orders until the sixtieth day after the

date that any party filed a notice of appeal from a final judgment. See TEX. FAM. CODE

ANN. §§ 6.709(i), 109.001(b-2). Jonathon filed his notice of appeal from the final divorce

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decree on May 5, 2025, and the sixtieth day after that date was July 4, 2025. The trial

court signed the temporary orders at issue in this original proceeding on July 11, 2025,

after the statutorily prescribed deadline. Accordingly, the trial court’s July 11, 2025

temporary orders are void. See In re Saldana, 380 S.W.3d at 892; In re Norris, 371

S.W.3d at 550; Love, 217 S.W.3d at 36–37; In re Boyd, 34 S.W.3d at 711. Having reached

this conclusion, we need not address the sufficiency of the evidence to support the trial

court’s ruling. See TEX. R. APP. P. 47.4.

IV. CONCLUSION

The Court, having examined and fully considered the petition for writ of mandamus,

the response, and the applicable law, is of the opinion that the trial court’s July 11, 2025

temporary orders are void. Accordingly, we lift the stay previously imposed in this case.

See id. R. 52.10. We conditionally grant the petition for writ of mandamus. We direct the

trial court to vacate its July 11, 2025 temporary orders. Our writ will issue only if the trial

court fails to comply.

JON WEST
Justice

Delivered and filed on the
14th day of October, 2025.

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