Petition for Review - Filed - Supreme Court of Texas

FILED
3QV.
-•wssr
14
NO- 11-0015
IU P R E M E C OUR T 0 F T E X..-A.-.S.
pT CASE
IN THE INTEREST
OF
S.P.,
J.P., and A.P.,•Children.
On Appeal From The Texas Sixth Court of Appeals at Texarakana
Appeal Case No. 06-10-00077-CV
Appeal from the 145th Judicial District Court
Nacogdoches County, Texas
Trial Court Case No. C20,871-2004
P E T I T I 0 N F 0 R REVIEW
CHANDA PIPES
Petitioner --
P.O. Box 187
Martinsville,
Pro Se
Texas
75958

IDENTITIES OF PARTIES AND COUNSEL
Appellant
1. Appellant:
2. Trial Counsels:
Chanda Pipes; — Pro se
M. Duane Shaw Sr.
Attorney at Law
State Bar No. 00798499
107 West Lufkin Avenue, Suite 213
Lufkin, Texas 75901
Scott Tatum
Attornet at Law
State Bar NO. 00797541
P.O. Box 582
Lufkin, Texas 75902
3. Appellate Counsel:
4. Bill of Review:
Scott Tatum
Attorney at Law
State Bar No. 00797541
P.O. Box 582
Lufkin, Texas 75902
Chanda Pipes -- Pro se
Appellee
5. Appeal for Bill of Review:
Chanda; Pipes
-- Pro se
6. Appellee:
Texas Department of Family and Protective
Services
Trevor A.
Woodruff
Managing Attorney
State Bar No. 24042191
2401 Ridgepoint, Dr., Bldg. H-2 (MC:Y-956)
Austin, Texas 78754
7. Trial Counsels:
Michael Bonner
Attorney for Tex. Dept. of Family &
Protective
Nicole D.
Lastracco
Attorney/Guardian Ad Litem for Children
101 West Main Street
Nacogdoches, Texas 75961

TABLE OF CONTENTS
Page
Identities of Parties and Counsels
Table of Contents
Index of Authorities
i
ii
iii
Statement of the Case 1,2
Statement of Jurisdiction 2,3
Issues Presented
I. DID THE COURT OF APPEALS ERR IN RULING THAT RESPONDENT
PRESERVE FOR APPEILATE REVIEW THE ISSUE THAT PETITIOMER'S
PETTnON FOR BILL OF REVIEW WAS NOT TIMELY FILED WITHIN
THE TIME PRESCRIBED UNDER SECTION 161.211 OF TEX. FAM. CODE ? 3
II.
III.
DID THE COURT OF APPEALS ERR IN RULING THAT PETITIONER'S
PETITION FOR BILL OF REVIEW WAS NOT TIMELY FILED ? 3
DOES SECTION 161.211 OF TEXAS FAMILY CODE VIOLATES
PETITIONER'S INSTITUTIONAL RIGHTS TO DUE PROCESS ? 3
Statement of Facts % 3,4
Summary of the Argument 4
Argument 4-6
Prayer .6.,.7-
Certificate of Service 7
Appendix 8
3.1

INDEX OF AUTHORITIES
Cases
•
Page
Alexander v.
Hagedorn,
148 Tex. 565, 226 S.W.2d 996 (1950) 6
IJL.re Estate of Womack,
280 S.W.3d 317 (Tex. App. - Amarillo 2008) 5
McCain v. NME HospitalsT Inc.T
856 S,W.2d 751 (Tex. App. - Dallas 1993) 4
Rogers v.
StateT
291 S.W.3d 148 (Tex. App. - Texarkana 2009) 5
Statutes
Tex. Civ. Prac. &Rem. Code, Section 16.051 4 5
Tex. Fam. Code, Section 16.211
Tex. Gov't Code, Section 22.001
Rules
Tex. R. App. Proc, Rule 33.1 4 5
Tex. R. App. Proc, Rule 53
'
Tex. R. Civ. Proc, Rule 296
Tex. R. Civ. Proc, Rule 297
Tex. R. Civ. Proc, Rule 326b(f)
Tex. R. Civ. Proc, Rule 329b(f) •«' 5
Misc
3-5
2
1
3-5
3-5
3-5
Tex. Const., Art.W § 3
o
111

No. 11-0015
IN THE
SUPREME COURT OF TEXAS
IN THE INTEREST
OF
S.P., J.P., and A.P., Children.
On Appeal From The Texas Sixth Court of Appeals at Texarakana
Appeal case No. 06-10-00077-CV
JU JLJLJLJ^A.!..!^^.!..!.J.-l..,!,-!-j„ff ,nf,^.tn,j,J&nJUJ.A
A A A AAA A A A AAA A A A A A A A-A A A A A A
PETITION FOR REVIEW
TO THE HONORABLE JUSTICES OF THE SUPREME COURT OF TYEXAS
Now comes, CHANDA PIPES, Petitioner herein and Appellant below, and files
this Petition for Review, pursuant to the provisions of Rule 53 of the Texas
Rules of Appellate Procedure, and would respectfully show unto this honorable
Supreme Court of Teixas the following:
STATEMENT OF THE CASE
In the 145th District Court of Nacogdoches County, Texas, in Cause No.
C20,871-2004,
in less than six (6) minutes a termination proceeding was held
by the below trial court Judge Campbell Cox and before all parties in such
termination case,
Judge Cox made findings terminating petitioner's parental
rights and so ordered that the Respondent be appointed Permanent Managing
Conservator of Petitioner's children S.P., J.P., and A.P..
After the conclusion of terminating hearing, Petitioner's trial counsel
advised her that she could not appeal the trial court's order of termination,
and gave her back some of the retaining fee money she paid to retain him.
On June 5, 2010, Petitioner's husband while incarcerated in prison disvered
in the law library that trial counsel Scott Tatum gave him and peti
tioner wrongful legal advise that they could not appeal from the trial court's

order of termination,
and when in fact they had a constitutional and statutory
right
to appeal.
On June 15, 2010, Petitioner filed a pro se Petition for Bill of Review
(CR 165-174), and then on June 22, 2010, Petitioner filed a motion for hearing
to be held on her petition for bill of review. On June 28, 2010, without any
hearing be held or the Appellee filing an answer, the trial court entered an
Order Denying Petitioner's Petition for Bill of Review (CR 176). Thereafter,
Petitioner filed a Request for Findings of Fact and Conclusion of Law on July
13, 2010. (CR 177-181). On July 14, 2010, the trial court entered an Order
regarding Petitioner's request for findings of fact and conclusion of law (CR
182).
Upon Petitioner reviewing the Clerk's record,
she discovered that her
trial counsel Scott Tatum did, without informing her, file a late Notice of
Appeal on May 22, 2006. (CR 151), and failed to file a docketing statement
and the appeal filing fee for such appeal,
and the appeal was dismissed for
these reasons (CR 160).
Petitioner then filed a timely Notice of Appeal from the denial of her
pro se petition for bill of review (CR 101-181). Petitioner timely perfected
her appeal of
the trial court's order denying her petition for bill of review
and filed her brief containing four (4) issues presented. In an unpublished
opinion rendered on December 7, 2010, the Texas Sixth Court of Appeals affirme
the below; trial court's order.
Petitioner filed an extension of time to file this Petition for Review
and said extension was granted until the 22nd day of February, 2011. Said
Petition for Review is timely filed on February 19, 2011.
STATEMENT OF JURISDICTION
The jurisdiction of this honorable Supreme Court is invoked pursuant to
Section 22.001 of the Texas Government Code, and Article V, § 3 of the Texas

Constitution, as
this is an appeal from the Texas Sixth Court of Appeals'
decision to affirm the 145th Judicial District Court of Nacogdoches County,
Texas,
'Order' denying petitioner's petition for bill of review.
ISSUE^J?RI^ENTED
I.
DID THE COURT OF APPEALS ERR IN RULING
THAT RESPONDENT PRESERVE FOR APPELLATE REVIEW THE ISSUE
THAT PETITIONER'S PETITION FOR BILL OF REVIEW WAS NOT TIMELY
FILED WITHIN THE TIME PRESCRIBED UNDER SECTION 161.211 OF TEX. FAM. CODE ?
II.
DID THE COURT OF APPEALS ERR IN RULING
THAT PETITIONER'S PETITION FOR BILL OF REVIEW WAS NOT TIMELY FTLED ?
III.
DOES SECTION 161.211 OF TEXAS FAMILY CODE VIOLATES
PETITIONER'S CONSTITUTIONAL RIGHTS TO DUE PROCESS ?
STATEMENT OF FACTS
1. Petitioner's husband discovered on June 5, 2010, that they had
a constitutional and statutory right to appeal from the trial
court's Order of Termination of
their parental rights.
2. On June 15, 2010, Petitioner filed her own pro se Petition for
Bill of Review.
3. On June 28, 2010, the trial court entered an Order Denying her
Petition for Review, and without conducting a hearing or affording
the Respondent to file an answer or proceed as a party in the
bill of
review.
4. The trial court's Order Denying her Petition for Bill of Review
was rendered on the findings that her petition for bill of review
was not timely filed pursuant to TRCP 326b(f) and CPRC 16.051.
5. On July 13, 2010, Petitioner filed a Request for Findings of Fact
and Conclusions of Law requesting the trial court to state, in
writing its findings of fact and conclusions of law depying her
petition for bill of review.
6. On July 14, 2010, the trial court entered an Order Regarding

Petitioner's Request for Findings of Fact and Conclusions of law,
and the court made the same findings of its original Order denying
her petition for bill of review.
SJMMj^X_PZ_._E_ARGJ^M^ENT
It has been held
that failure to raise issue in trial court waives appella.
review of issue. McCain v. NME Hospitals, Inc., 856 S.W.2d 751 (Tex. App. -
Dallas 1993).
In this case,
the Respondent did not object to the trial court's Order
denying petitioner's petition for bill of review on the findings that the
petition was not timely filed pursuant to TRCP 326b(f) arid CPRC 16.051. But
nevertheless, on appeal to the Court of Appeals the Respondent now raises that
the Petitioner's petition was not filed timely under Section 161.211 of Texas
Family Code, and the below Court of Appeals affirmed the trial court's order
based on the fact that petitioner did not timely file her petition for bill
of review within the time prescribed under Section 161.211 of Texas Family
Code. Therefore,
the below Court of Appeals erred in ruling that the Respondent
preserved such issue for appellate review and that the time for filing a bill
of review in petitioner's
termination case has expired and the relief is no
longer available. (App. C at Page #3).
In addition and despite Petitioner was not afforded to raise on direct
appeal unto the below Court of Appeals, Petitioner asserts that Section 161.211
of the Texas Family Code is 'unconstitutional''.-. ..to deny her due process of
law. In light of this, the Court of Appeals erred in affirming the trial court'
judgment pursuant
to Section 161.211 of the Texas Family Code.
ARGUMENT
Rule 33.1 of the Texas Rules of Appellate Procedure requires that in
order to preserve error for appeal,
a party must object or otherwise bring the
error to the attention of the trial court,
exists so that the trial court may

have the opportunity to correct any errors without the necessity and cost of
an appeal. In jre^Estate^of.'.Womack," 280 S.W.3d 317 (Tex. App, - Amarillo 2008).
To preserve error for appellate review: (1) the complaining party must make
a timely objection specifying the grounds for the objection, if the grounds
are not apparent from the context•;..':•(2) the objection must' be made at the
earliest possible opportunity; and (3) the complaining party must obtain an
adverse ruling from the trial court. Rogers v. State, 291 S.W.3d 148 (Tex. App.
- Texarkana 2009).
The below Sixth Court of Appeals appears to have ignored its own prior
courts decision, as Rogers,, supra,V atnd even Rule 33.1 of the Texas Rules of
Appellate Procedure, in finding that Respondent preserve the issue that
Petitioner's petition for bill of review was not timely filed pursuant to
Section 161.211 of the Texas Family Code. As there is nothing contained or
mentioned in the appellate record regarding Section 161.211 of the Texas Family
Code, and Respondent likewise brings such issue on appeal for the first time.
In fact, Petitioner timely filed request for finding of fact and conclusions
of law pursuant to Rules 296 and 297 of the Texas Rules of CivilProcedure,
respectfully requesting the trial court to state in writing its findings of
law denying her petition for bill of review so she could accurately appeal from
the trial court's order of denial of her bilL of; review. (App.B). And the trial
court entered an 'Order' regarding petitioner's request and so concluded that
its original findings in its Order denying petition for bill of review signed
on June 25, 2010, were correct and stand as written therein. (App. A & B). In
sum, such issue was not preserved; for appellate-review and so this Court
should determine whether such issue was waived and petitioner was precluded
from properly challenging that Section 161.211 of the Texas Family Code is
'unconstitutional' ... for this reason.
Under Rule 329b(f), as misapplied by
the trial court as Rule 326b(f), of
the Texas Rules of Civil Procedure arid Section 16.051 of the Texas Civil

Practice and Remedies Code,
Petitioner timely filed her petition for bill of
review shortly after discovery by her husband that she and him had a constitu
tional and statutory right to appeal from the trial court *s Order of Termina
tion of their parental rights.
Although, the below Court of Appeals wholly
failed to take judicial notice of the exact discovery date in the petitioner's
case, and thus, totally ignored any issue regarding petitioner's claim of such
discovery date.
This Supreme Court has described extrinsic fraud
as occurring when a party
"has been misled by his adversary by fraud or deception, did not know of the
suit, or was betrayed by his attorney."Alexander v. Hagedorn, 148 Tex. 565,
226 S.W.2d 996 at 1001 (1950). As in the present case of petitioner's, her
attorney misled her and her husband to believe that they could not appeal from
the trial court's order of termination. However, without her or her husband's
acknowledge ...
their retairied trial attorney files a late notice of appeal
and motion for new trial, but did not perfect the appeal to the Texas Twelfth
Court of Appeals because of him failure to file a docketing statement and pay
the filing fee, i.e., despite said retained attorney could have filed for
indigency under the Texas Family Code and Texas Rules of Appellate Procedure.
The below Court of Appeals has appeared to depart from the accepted and
unusual course of judicial proceedings,
and so as Petitioner calls for an
exercise of the Supreme Court of Texas power supervision, therefore, this
honorable Supreme Court should determine whether Petitioner's petition for bill
of review was timely filed from the actual date of discovery.
PRAYER
WHEREFORE,
Petitioner prays that this Supreme Court of Texas grant this
Petition for Review,
that this case be set for submission to this honorable
Supreme Court, that, after submission, this Supreme Court reverse the decision

of
the Court of Appeals and the Order of the below Trial Court and remand this
cause for further proceedings .'consistent" with the opinion of this honorable
Supreme Court.
•Respect-full
submitted,
CHANDA PIPES
Petitioner — Pro se
P.O. Box 187
Martinsville,
Texas
75958
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the. foregoing Petition for
Review was placed in ari Uttited States Mailbox and for forwarding to the Clerk,
Blake A. Hawthorne, of the Supreme Court of Texas, P.O. Box 12248, Austin,
Texas 78 711-2248, and Appellee's attorney of record, Trevor A. Woodruff, Office
of General Counsel, Texas Department of Family and Protective Services, 2401
Ridgepoint Drive, Bldg. H-2— MC: Y-956,; Austin, Texas-,;• on this 17th day of
February, 2011.
Chanda Pipes

NO. 11-0015
IN
THE
SUPREME COURT OF TEXAS
IN THE INTEREST
OF
S.P., J.P., and A.P., Children.
PETITIONER'S
APPENDIX
LIST OF DOCUMENTS
Appendix "A" :
Order Denying Petition for Bill of Review.
Appendix "B" : Order Regarding petitioner's Request for Findings of Fact
•and'•Conclusions of Law & Petitioner's Request for Findings
of Fact and Conclusions of Law.
Appendix "C" : Texas Sixth Court of Appeals' Memocandum Opinion.

A P P E N D I X "A*

CAUSE NO. C20.871-2004 JUN 28 2010
IN THE INTEREST OF
CHILDREN
§ INTHEI45."jub»CIAL;,8glHS§r
§ COURT OF
§
§ NACOGDOCHES COUNTY, TEXAS
§
DISTRICT CLERK
CHESCOUNTY.IX
ORDER DENYING PETITION FOR
BILL OF REVIEW ,:
Came on June 25, 2010 to consider Chanda Pipes' Petition for Bill of Review.
Upon
review of the Petition and the Court's file, the COURT FINDS:
1. • The Petition was not timely filed pursuant to 1RCP 326b(f) and CPRC 16.051
(the deadline was March 10, 20! 0and the petition was filed June 22, 2010);
2.
A motion for new trial was filed and heard pursuant to Texas Family Code
263.405(d), as opposed to what the petition claims;
An appeal was noticed and affinned, as opposed to what the petition claims; and
4.
Due to thethree points mentioned above, the Petitioner has not. demonstrated a .
sufficient cause, and is therefore not entitled to a hearing on the petition for her
bill of review.
Therefore, it is the ORDER of thisCourt that the Petition for Bill of Review be DENIED.
SIGNED and ENTERED on June 25, 2010.
Judge Presiding

A P PE N DI X "B*

!t5^
^v
FILED
CAUSE NO. C20,871-2004
JUL 1 4 2010 .
IN THE INTEREST OF:
§
§
IN THE 145JUDICIAL
DISTRICT COURT OF
NACOGDOCHES COUNTY
DISTRICT CLERK
NACOGDOCHES COUNTY, TX
ORDERREGARDING PETITIONER'S REQUEST
FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW
Came on July 14, 2010 to consider the Petitioner's request for findings of fact and
conclusions of law.
Although the request is not timely made according to Texas Rule of
Procedure 296, and is not applicable to a denial of a request for a bill of review, the Court hereby
makes such findings and conclusions:
Findings ofFact
Seepoints 1. 2 and 3 in the Order Denying the Petition for Bill of Review.
Conclusions of Law
See point 4 in the Orderdenying the Petition for Bill of Review.
Signed and entered July 14, 2010.
Campbel
Judge Presiding

1
Inn
» 11
NACOGDOCHES COUNTY "
CAUSE NOVC20, 871-2004
10 JUL 13 RHIM3
IN THE INTEREST OF
DISTRICT CLERK
in the145 judicial
DISTRICT COURT OF
CHILDREN
NACOGDOCHES COUNTY, TEXAS
PETITIONER'S REQUEST
FOR FINDING OF FACT AND CONCLUSIONS OF LAW
TO THE HONORABLE JUDGE OF SAID COURT.
Petitioner, Chanda Pipes, pursuant to the provisions of Rule 296 and 297 of the Texas
Rules of Civil Procedure, respectfullyrequests appropriate findings of face and conclusions of
law and for the following reasons as follows:
Petition filed a petition for bill of review and which this court on June 25, 2010, entered
an order Denying Petitioner's petition for bill of review. Therefore, petitioner respectfully
requests the court tostate in writing its findings of fact and conclusions of law denying
petitioners' petition for bill of review so she could accurately appeal from such denial of ther
bill of review to the Texas Twelfth Court of Appeals.
WHEREFORE, PREMISES CONSIDERED, Petitioner prays that this request is granted and
such findings of fact and conclusions of law be rendered within twenty (20) days after this
request was filed.
Respectfully Submitted,
Chanda Pipes - - Pro Se
PO. Box 187
Martinsville, Texas 75958

"T8
CERTIFICATE OF SERVICE
Icertify that a true and correctcopyof the following pleading has been served by
placing in the United States Mail, postage prepaid, onthis the 13th day ofJuly, 2010, addressed
to:
Attorney for Petitioner
Department of Family and Protective Services
101 W. Main Street
Nacogdoches, Texas 75961
Nicole D Lostracco
Attorney at Law
101 West Main Street
Nacogdoches, Texas 75961

APPENDIX "C°

, i , .,4. (N..« L- i"» &. t)$£e
In The
Court ofAppeals
Sixth Appellate District Of Texas at Texarkana
No. 06-10-00077-CV
IN THE INTEREST OF S.P., J.P., AND A.P., CHILDREN
On Appeal from the 145th Judicial District Court
Nacogdoches County, Texas
Trial Court No. C20,871-2004
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley

MEMORANDUM OPINION
Chanda Pipes has filed an appeal from the denial ofher bill ofreview.1
The underlying
case involves the termination of her parental rightsto three children, by order of March 10,2006.
She states that her husband, Jimmy Pipes, is now incarcerated and had informed her that he had
discovered whilein the legal libraryat the prison, that she couldhave appealedfromthe orderof
termination.
She maintains an unawareness that she could do so before, stating that her former
attorneyhad abandoned her by not seekingto file a noticeofappeal, and that she was wrongfully
advised she could not appeal the order oftermination.
A bill ofreview is an equitable proceeding to set aside a final judgment that is no longer
appealable or subjectto a motion for newtrial or appeal.
TransworldFin. Servs. Corp. v. Briscoe,
722 S.W.2d 407 (Tex. 1987). To be entitled to relief, a plaintiff in a bill of review action is
ordinarily required to provethree elements:
(1) a meritorious claimor defense; (2) whichhe was
prevented from asserting by the fraud, accident, or mistake of the opposite party or a mistake by
court personnel inthe execution ofofficial duties; (3)unmixed with anyfaultor negligence of his
own. Id. at 408; W, Columbia Nat'IBank v. Griffith, 902 S.W.2d201 (Tex. App.—Houston list
Dist.] 1995, writ denied).
'Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court bythe Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV'T CODE ANN. §73.001 (Vernon 2005). We are
unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant
issue. See TEX. R. APP. P. 41.3.
2We note that the record includes a copy of an opinion on her appeal from the termination that was issued on
September 6,2006. An appeal was thus brought, but the nonindigent Pipes did not pay the fee for filing the appeal
with the Tyler Court ofAppeals despite multiple warnings and opportunities to do so, and the Tyler court ultimately
dismissed herappeal. Thus, herclaim is without validity onitsface.
2

Under the general statute, as applied by the trial court, apetition for bill ofreview must be
filed within four years of the date of the disputed judgment. See Tex. Civ. Prac &Rem. Code
Ann. § 16.051 (Vernon 2008); Tex. R. Civ. P. 329b(i); Caldwell v. Barnes, 975 S.W.2d 535,538
(Tex. 1998); Layton v. Nationsbanc Mortgage Corp., 141 S.W.3d 760, 763 (Tex. App.—Corpus
Christi 2004, no pet.). ,.
The Texas Family Code also has its own separate restriction on the time in which aparty
may bring either a direct or a collateral attack on an order terminating parental rights. Section
161.211 of the Texas Family Code provides that "the validity of an order tenmnating parental
rights ofaperson who has been personally served ... is notsubjectftb collateral or direct attack
after the sixth month after the date the order was signed." Tex. Fam. Code Ann. § 161.211
(Vernon 2008). This section has been treated as shortening the time in which a bill of review
could be brought to a maximum ofsix months. See In re L.N.M., 182 S.W.3d 470,473-74 (Tex.
App.—Dallas 2006, no pet).
By her own pleadings (and under both the fo\n>year and the six-month time period), the
time for filing a bill ofreview has expired and the relief is no longer available. Thus, the trial
court did not err by denying the bill. Further, allegations offraud ornegligence on the part ofa
party's attorney are insufficient to support abill ofreview. Briscoe, 722 S.W.2d at408; Graceyv.
West, AllS.W.2d 913,918-19 (Tex. 1968). Thus, abill ofreview petitioner who alleges that the
wrongful act of his attorney caused an adverse judgment is not excused from the; necessity of

J. < ,
'. Lif"
pleading and proving his opponent's extrinsic fraud. KingRanch, Inc. v. Chapman, 118 S.W.3d
742 (Tex. 2003); Briscoe, 111 S.W.2d at 408. No such fraud is pled.
We affirm the judgment.
Date Submitted: December 3,2010
Date Decided: December 7,2010
Bailey C Moseley
Justice
FILED IN
she Court ot Appeals
Sixth District
DEC 07 2010
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