In the Interest of J.M.M., S.A.M., and N.R.M., Children, 04-26-00251-CV, August 05, 2026.
On appeal from 285th Judicial District Court, Bexar County, Texas
Synopsis
A trial court’s failure to render a final order within the 90-day deadline in Texas Family Code section 263.4011 does not deprive the court of jurisdiction. But the deadline is still mandatory, and any complaint about a violation is waived unless the parent preserved it in the trial court through a timely request, objection, or motion.
Relevance to Family Law
Although J.M.M. arises from a Department termination case, its preservation lesson reaches well beyond CPS practice. Texas family-law litigators handling SAPCR modifications, custody trials, enforcement proceedings, and even divorce cases with parallel parent-child issues should treat statutory deadlines and mandatory procedural requirements as preservation problems first and appellate arguments second. The opinion also underscores a broader strategic point that applies in custody and conservatorship litigation generally: when the record is thin, appellate courts may express concern, but they will still apply ordinary preservation and sufficiency rules unless the complaint was properly developed below.
Case Summary
Fact Summary
The Department removed the children in May 2024 based on domestic violence between the parents, unstable housing, and positive drug tests. Father remained incarcerated throughout the case. By the time trial began on November 3, 2025, the Department’s permanency goal had shifted to reunification with Mother and termination of Father’s parental rights.
The bench trial did not conclude in a single setting. It began on November 3, 2025, continued on January 13, 2026, and concluded on March 6, 2026. During that period, the children were returned to Mother on December 22, 2025, and the later trial settings focused substantially on Mother’s reunification progress. The final order was signed on March 20, 2026, appointing Mother sole managing conservator, dismissing the Department as conservator, and terminating Father’s parental rights under Family Code section 161.001(b)(1)(E), (N), (O), and (P), with a best-interest finding.
On appeal, Father raised seven issues. His first issue attacked the trial court’s authority to act after the section 263.4011 deadline expired. His remaining issues challenged the legal and factual sufficiency of the evidence supporting the predicate grounds and the best-interest finding. The Fourth Court agreed the statutory deadline was missed, but it held the complaint was not jurisdictional and was not preserved.
Issues Decided
- Whether the trial court lost jurisdiction by failing to render a final order within the 90-day deadline in Texas Family Code section 263.4011 after trial commenced.
- Whether a complaint under section 263.4011 is waived when the complaining parent failed to raise a timely request, objection, or motion in the trial court.
- Whether the evidence was legally and factually sufficient to support termination under Family Code section 161.001(b)(1)(E), (N), (O), and (P).
- Whether the evidence was legally and factually sufficient to support the best-interest finding.
Rules Applied
The court applied Texas Family Code section 263.4011, which requires the trial court in a parental-termination suit to render a final order no later than the 90th day after trial commences. The statute also states that the deadline is not tolled by recesses during trial and permits an extension only upon a hearing and a written order specifying good cause and the length of the extension. It further authorizes mandamus if the court fails to timely render the order.
The key precedent on the deadline issue was In re T.D., No. 04-24-00185-CV, 2024 WL 4177965, at *8 (Tex. App.—San Antonio Sept. 13, 2024, no pet.) (mem. op.), in which the Fourth Court previously held that section 263.4011’s 90-day deadline is mandatory but not jurisdictional. Because it is not jurisdictional, ordinary preservation principles apply.
On the termination issues, the court relied on the standard Family Code framework requiring clear and convincing evidence of both a predicate ground under section 161.001(b)(1) and best interest under section 161.001(b)(2). The opinion cites familiar sufficiency authorities, including In re H.R.M., In re J.P.B., and In re N.G., the latter requiring appellate review of subsection (D) and (E) findings because of their collateral consequences in future cases.
Application
The court’s analysis on section 263.4011 was straightforward and important. Trial commenced on November 3, 2025, and the final order was not signed until March 20, 2026, well outside the statute’s 90-day deadline. The court expressly agreed that section 263.4011 was violated. That concession matters: this was not a case in which the court strained to find compliance. The deadline was missed.
But Father framed the issue as jurisdictional, and that framing failed under existing Fourth Court authority. Relying on In re T.D., the court held that section 263.4011 imposes a mandatory duty without creating a jurisdictional limitation on the trial court’s power. Once the issue is classified as non-jurisdictional, Rule 33.1 preservation principles control. Because Father did not complain in the trial court—by objection, motion, request for ruling, or other timely invocation of the statute—he could not raise the issue for the first time on appeal.
The opinion is also notable for what it says about the trial record. The court observed that the record regarding Father’s conduct was unusually underdeveloped and that the Department presented no exhibits. It remarked that less than 30 pages of testimony and argument addressed Father’s conduct and expressed concern about severing a parent-child relationship, especially on subsection (E) grounds, on such a sparse evidentiary showing. That discussion is a pointed reminder from the court that meaningful appellate review depends on a meaningful record. Even so, the court did not treat its concern as a substitute for preservation doctrine or as a basis to disturb the judgment on the deadline issue.
Holding
The court held that Texas Family Code section 263.4011’s 90-day deadline for rendering a final order after trial commences is mandatory but not jurisdictional. As a result, noncompliance does not divest the trial court of subject-matter jurisdiction in a parental-termination case.
The court further held that a complaint based on violation of section 263.4011 is waived unless preserved in the trial court through a timely request, objection, or motion. Because Father first raised the complaint in his appellate brief, the court declined to reach the merits of the issue.
The court affirmed the termination order. While the excerpt provided focuses primarily on the section 263.4011 issue and the court’s concern with the sparse record, the disposition affirmed the final order terminating Father’s rights and appointing Mother sole managing conservator.
Practical Application
For practitioners, J.M.M. is a preservation case disguised as a deadline case. If you represent a parent and the 90-day section 263.4011 clock is running or has expired, you cannot safely assume the defect is self-executing or jurisdictional. You must force the issue in the trial court. That means calendaring the deadline from the date trial commences, recognizing that recesses do not toll the statute, and making a record before the deadline passes or immediately upon its expiration.
The case also affects litigation strategy when trial is split over multiple settings. Family lawyers often try cases in segments, especially where temporary placements, monitored returns, psychological evaluations, or criminal custody issues are in play. J.M.M. confirms that once a termination trial commences, the section 263.4011 clock continues to run through recesses. If the court wants more evidence after the 90th day, counsel should insist on a section 263.4011(c) hearing and a written extension order with findings of good cause and a defined extension period.
The opinion has value outside CPS cases because the preservation principle is universal. In divorce and SAPCR litigation, lawyers frequently identify a statutory or rule-based violation and assume the error remains available for appeal because the underlying command is “mandatory.” That is often wrong. Unless the defect truly goes to subject-matter jurisdiction or falls within a narrow category of fundamental error, appellate courts will likely require a timely trial-court objection.
Finally, the court’s comments about the underdeveloped record should not be overlooked. In any family-law appeal involving parental conduct, endangerment, conservatorship restrictions, or best interest, appellate arguments are only as good as the record. A thin record may draw judicial criticism, but criticism does not equal reversal. If you are trying the case, build the evidentiary file as though a skeptical court of appeals knows nothing except what will appear in the reporter’s and clerk’s records.
Checklists
Preserving a Section 263.4011 Complaint
- Calendar the 90-day deadline from the date trial commences.
- Do not exclude recess periods from the calculation.
- Review the docket after each trial setting to confirm the running deadline.
- If the court appears likely to miss the deadline, file a written motion invoking section 263.4011.
- Request a hearing before expiration of the deadline.
- Object on the record if the court proposes to continue the case without a compliant extension order.
- If an extension is sought, insist that the court make a good-cause finding in writing.
- Ensure the written order specifies both the grounds for extension and the length of the extension.
- If the deadline passes without a final order, make a prompt post-deadline objection or motion in the trial court.
- Consider mandamus under section 263.4011(d) rather than waiting for appeal.
Managing Split-Setting Termination Trials
- Treat the first day evidence begins as the commencement date for section 263.4011 purposes.
- Create a running deadline chart in the file and circulate it to the trial team.
- Confirm whether later settings are continuations of the same trial rather than a new commencement date.
- Raise deadline concerns before the next recessed setting begins.
- If the Department or another party wants to delay for placement developments, insist on compliance with the extension mechanism in the statute.
- Make sure all off-the-record scheduling discussions are summarized on the record.
Building an Appellate-Proof Record on Predicate Grounds
- Offer documentary exhibits, not just conclusory testimony.
- Tie each exhibit and witness examination to the specific predicate ground pleaded.
- Develop chronology, not just accusations.
- Establish the parent’s conduct, knowledge, and resulting risk to the child.
- For subsection (E), connect the conduct to endangerment through a course-of-conduct narrative.
- Do not assume the trial judge’s familiarity with the family will substitute for admitted evidence.
- If incarceration is part of the theory, develop surrounding conduct rather than relying on incarceration alone.
- Preserve complaints about evidentiary gaps through motions for directed verdict, objections, or post-trial motions where appropriate.
Protecting the Client from Waiver on Appeal
- Identify all potentially dispositive statutory complaints before trial concludes.
- Make trial objections with enough specificity to alert the court to the legal basis.
- Obtain rulings, or object to refusal to rule.
- File written motions when the issue benefits from precision and a paper trail.
- Use post-trial motions to sharpen complaints that arose late in the proceeding.
- Verify that the clerk’s record contains the motion, objection, ruling, and any proposed order.
- In termination cases, evaluate immediately whether mandamus is preferable to ordinary appeal.
Representing the Prevailing Party Against a Deadline Challenge
- Argue preservation first if the appellant did not raise section 263.4011 below.
- Cite In re T.D. and J.M.M. for the proposition that the deadline is mandatory but not jurisdictional.
- Emphasize the statute’s own mandamus remedy as further support against jurisdictional treatment.
- Confirm whether the record contains any timely request, objection, or motion by the appellant.
- If an extension was entered, verify that the order contains the statutory findings and duration.
- Anticipate attempts to reframe the issue as fundamental error and address why it is not.
Citation
In the Interest of J.M.M., S.A.M., and N.R.M., Children, No. 04-26-00251-CV, 2026 WL ___ (Tex. App.—San Antonio Aug. 5, 2026, no pet.) (mem. op.).
Full Opinion
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