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

IN THE SUPREME COURT OF TEXAS
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No. 18-0908
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IN THE INTEREST OF D.S., A CHILD
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ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS
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JUSTICE LEHRMANN, joined by JUSTICE DEVINE and JUSTICE BUSBY, concurring.

As the Court’s opinion thoroughly and accurately explains, when a trial court renders

judgment terminating parental rights based on an unrevoked affidavit of relinquishment, Texas

Family Code section 161.211(c) plainly forecloses a collateral attack on the judgment premised on

an alleged lack of subject matter jurisdiction. I therefore join the Court’s opinion, which correctly

holds that Father’s collateral attack is barred by statute. I write separately to note that it is barred

for another reason as well: a court’s lack of “jurisdiction” under the Uniform Child Custody

Jurisdiction and Enforcement Act (UCCJEA) does not equate to a lack of “subject matter

jurisdiction” that deprives the court of the power to hear and decide the case, thereby endangering

a judgment’s finality. 1

“Jurisdiction,” the United States Supreme Court has observed, “is a word of many, too

many, meanings.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 90 (1998) (quotation

1
Because the Court’s analysis of section 161.211(c) is dispositive of the case, the majority opinion need not
and does not decide whether the UCCJEA is a subject matter jurisdiction statute. See ante at 17–18.
omitted). When we speak of “genuine subject-matter jurisdiction,” id., we speak of a court’s

“power to decide the case,” In re United Servs. Auto. Ass’n, 307 S.W.3d 299, 306 (Tex. 2010); see

also Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 74–75 (Tex. 2000) (explaining that a “judgment

may properly be rendered against a party only if the court has authority to adjudicate the type of

controversy involved in the action” (citing RESTATEMENT (SECOND) OF JUDGMENTS § 11 (1982))).

We have expressed concern that classifying a matter as one of subject matter jurisdiction “opens

the way to making judgments vulnerable to delayed attack for a variety of irregularities that

perhaps better ought to be sealed in a judgment.” Dubai Petroleum, 12 S.W.3d at 76 (quoting

RESTATEMENT (SECOND) OF JUDGMENTS § 12 cmt. b (1982)). To alleviate that concern, we have

embraced the “modern trend” away from labeling a requirement “jurisdictional” in the true

“subject matter” sense. Engelman Irrigation Dist. v. Shields Bros., 514 S.W.3d 746, 752 (Tex.

2017); see also City of DeSoto v. White, 288 S.W.3d 389, 393 (Tex. 2009) (noting our “reluctan[ce]

to conclude that a provision is jurisdictional, absent clear legislative intent to that effect”).

In Engelman, we were asked whether a judgment against a governmental entity was subject

to collateral attack on the ground that the entity enjoyed sovereign immunity from suit. 514

S.W.3d at 748. “Favoring finality over uncertainty,” we held that it was not. Id. at 747. We noted,

among other things, several distinctions between immunity from suit and lack of subject matter

jurisdiction. Id. at 751. For example, unlike subject matter jurisdiction, immunity can be waived.

Id. (citing Rusk State Hosp. v. Black, 392 S.W.3d 88, 102 (Tex. 2012) (Hecht, J., concurring)).

Further, while sovereign immunity “implicates elements of both personal jurisdiction and subject

matter jurisdiction,” it “is identical to neither.” Rusk, 392 S.W.3d at 104 (Lehrmann, J., concurring

and dissenting); see also Engelman, 514 S.W.3d at 751. In light of those distinctions and in the

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interest of finality, we concluded: “Holding that sovereign immunity so implicates subject-matter

jurisdiction that the final judgment against [the governmental entity] can be challenged by

collateral attack in a later proceeding would run counter to the trend of Texas law and of American

jurisprudence generally.” Engelman, 514 S.W.3d at 752.

Turning to the UCCJEA, codified in Texas at chapter 152 of the Family Code, in my view

the statute “implicates” a court’s subject matter jurisdiction even less than does sovereign

immunity. The UCCJEA was primarily designed to remedy the increasingly common situation of

courts in different states simultaneously exercising jurisdiction in child-custody cases. Powell v.

Stover, 165 S.W.3d 322, 325 (Tex. 2005). It does so by “prioritizing” the jurisdiction of the child’s

“home state.” Id. The UCCJEA’s provisions do not provide a court the “authority to adjudicate

the type of controversy involved in the action,” Dubai Petroleum, 12 S.W.3d at 75 (emphasis

added) (citation omitted), but are concerned with where the suit should be litigated. The statute

also recognizes that a court with jurisdiction under the UCCJEA may “decline[] to exercise [that]

jurisdiction” on the ground that another state is a more convenient forum, TEX. FAM. CODE

§ 152.201(a)(2), (3), and one of the factors the court considers in making that determination is

“any agreement of the parties as to which state should assume jurisdiction,” id. § 152.207(b)(5).

Those provisions are inconsistent with classifying jurisdiction under the UCCJEA as genuine

subject matter jurisdiction, which “cannot be conferred upon any court by consent or waiver.”

Dubai Petroleum, 12 S.W.3d at 76 (quoting Fed. Underwriters Exch. v. Pugh, 174 S.W.2d 598,

600 (Tex. 1943)). Further, the Family Code provides that a final order in a custody proceeding

rendered by a court other than the court with continuing, exclusive jurisdiction over that

proceeding is “voidable,” not void. TEX. FAM. CODE § 155.104(b). Yet a judgment rendered

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without subject matter jurisdiction is void and thus subject to collateral attack. Mapco, Inc. v.

Forrest, 795 S.W.2d 700, 703 (Tex. 1990) (per curiam) (explaining that “a trial court judgment

rendered without ‘jurisdictional power’ in the sense of lack of subject matter jurisdiction” is “void”

and may “be set aside by the trial court at any time”).

Importantly, the principal justification for this Court’s general reluctance to view statutory

requirements as jurisdictional—ensuring a judgment’s finality—is even more pronounced in child-

custody cases. Indeed, one of the UCCJEA’s primary concerns is avoiding relitigation of custody

judgments, which is often detrimental to the child. Phillips v. Beaber, 995 S.W.2d 655, 659 (Tex.

1999) (discussing the UCCJEA’s predecessor). Holding that noncompliance with the UCCJEA’s

requirements deprives a court of subject matter jurisdiction over a custody dispute renders the

court’s judgment vulnerable to collateral attack years later. And the complexity of making home-

state determinations in an increasingly mobile world only magnifies this concern. See ante at 9.

Such uncertainty harms children and parents alike. See PNS Stores, Inc. v. Rivera, 379 S.W.3d

267, 274 (Tex. 2012) (“While no system is infallible, endless litigation, in which nothing was ever

finally determined, would be worse than the occasional miscarriage of justice.” (alteration and

quotation omitted)).

As the Court recognizes, a lack of uniformity exists among other states with respect to their

treatment of the UCCJEA’s requirements. Some have summarily held, with little to no analysis,

that noncompliance with those requirements deprives a court of subject matter jurisdiction over a

custody dispute. See Rosen v. Celebrezze, 883 N.E.2d 420, 429 (Ohio 2008) (per curiam); Rosen

v. Rosen, 664 S.E.2d 743, 749 (W. Va. 2008); Harshberger v. Harshberger, 724 N.W.2d 148, 153

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(N.D. 2006). 2 But others faced with the issue have reached the opposite conclusion. See

McCormick v. Robinson, 28 N.E.3d 795, 803 (Ill. 2015) (holding that the UCCJEA is better viewed

as “a procedural limit on when the court may hear initial custody matters, not a precondition to the

exercise of the court’s inherent authority”); Hightower v. Myers, 304 S.W.3d 727, 733 (Mo. 2010)

(holding that the UCCJEA’s predecessor’s jurisdictional provisions “inform a court whether it

lacks authority to modify custody because of the statutory limitations” but “do not remove subject

matter jurisdiction from the court”); Kenda v. Pleskovic, 39 A.3d 1249, 1256–57 (D.C. 2012)

(holding that the mother was judicially estopped from challenging an Indiana court’s jurisdiction

under the UCCJEA where the parties had availed themselves of Indiana’s jurisdiction and engaged

in substantial litigation there).

I agree with the latter line of cases, in which the courts properly treat a court’s erroneous

application of the UCCJEA’s requirements as just that: error, not lack of subject matter

jurisdiction. See Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 863–64 (Tex. 2010); Berry v.

Berry, 786 S.W.2d 672, 673 (Tex. 1990) (per curiam) (“Although a final judgment may be

erroneous or voidable, it is not void and thus subject to collateral attack if the court had jurisdiction

of the parties and the subject matter.”). This is consistent with the modern trend, which we have

embraced, away from classifying statutes as jurisdictional in the true subject-matter sense in the

absence of clear legislative intent to that effect. “Favoring finality over uncertainty,” I would hold

that the UCCJEA does not define a court’s subject matter jurisdiction and that a court’s rendition

2
I recognize this Court’s holding in Alfonso v. Skadden, 251 S.W.3d 52 (Tex. 2008) (per curiam), which
involved a collateral attack of a child-custody default judgment, that the trial court lacked subject matter jurisdiction
where the record affirmatively demonstrated an absence of jurisdiction under section 152.201’s predecessor. Id. at
55. However, we essentially assumed in Alfonso that the statute addressed subject matter jurisdiction, and we engaged
in no analysis of that issue. See id. at 54–55.

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of judgment in violation of the statutory requirements, while erroneous, is not void and thus is not

subject to collateral attack. Engelman, 514 S.W.3d at 747.

With these additional thoughts, I join the Court’s opinion and concur in the judgment.

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Debra H. Lehrmann
Justice

OPINION DELIVERED: May 8, 2020

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