In the Interest of J.B.H., a Minor Child--Appeal from 306th District Court of Galveston County

Affirmed and Memorandum Opinion filed August 8, 2006.

In The

Fourteenth Court of Appeals

____________

NO. 14-05-00745-CV

____________

IN THE INTEREST OF J.B.H., A MINOR CHILD

On Appeal from the 306th District Court

Galveston County, Texas

Trial Court Cause No. 05FD0478

M E M O R A N D U M O P I N I O N

Appellant William Francis Harris appeals the trial court=s dismissal of his case against appellees Antoinette Richardson Winston, the Honorable Gladys Burwell, John Buckley, Jr., Ervin Apffel, Jr., and the Texas Department of Family and Protective Services based on judicial immunity and lack of jurisdiction. We affirm.

Appellant was convicted of murder and sentenced to sixty-five years= imprisonment for killing Wenona Lynn Harris, his wife and the mother of his minor child, J.B.H. See Harris v. State, 133 S.W.3d 760 (Tex. App.CTexarkana 2004, pet. ref=d). J.B.H.=s cousin, appellee Winston, filed applications for temporary and then permanent guardianship of J.B.H. in the Galveston County Probate Court, which appellee Judge Gladys Burwell granted.

Appellant filed a petition in the 306th District Court, to which he refers as the AFamily Court,@ called AApplication for Writ of Habeas Corpus and Motion to Remove Non-Statutory Termination of Parental Rights Existing Between Legitimate Father, Parent and Natural Child, Pursuant to USCA, Constitutional Amendments, 1st, 5th, 14th, Texas Family Code ' 42.003, 155.002, 156.101, 161.001, and 161.206(b).@ His suit named as defendants appellees Judge Burwell, Winston, Winston=s attorney Apffel, J.B.H.=s guardian ad litem Buckley, and the Texas Department of Family and Protective Services. In this petition, appellant complained about the guardianship appointment, which he apparently considered a termination of his parental rights, and asserted that only the family court, not the probate court, had jurisdiction to enter such an order. He further alleged that Winston was not acting properly as guardian and that the child=s grandmother should be appointed temporary managing conservator.

After a hearing in which appellant appeared telephonically, the trial court dismissed appellant=s suit on the grounds that judicial immunity protected Judge Burwell from suit and the probate court had jurisdiction to enter the guardianship orders. Appellant appeals these rulings. His primary argument is that Judge Burwell has no authority to enter guardianship orders because the family court has exclusive jurisdiction to determine all matters regarding the custody of children. Appellant is mistaken. Probate Code section 606, entitled AJurisdiction with Respect to Guardianship Proceedings,@ provides that in counties where there is a statutory probate court, such as Galveston County, Aall applications, petitions, and motions regarding guardianships . . . shall be filed and heard in the statutory probate court.@ Tex. Prob. Code Ann. ' 606(d) (Vernon Supp. 2005). Thus, the probate court had jurisdiction to enter guardianship orders regarding J.B.H, and the dismissal of appellant=s suit was proper.[1]

Further, the trial court did not err in dismissing appellant=s claims against Judge Burwell on the basis that she is entitled to judicial immunity regarding her orders in guardianship proceedings. See Twilligear v. Carrell, 148 S.W.3d 502, 504B05 (Tex. App.CHouston [14th Dist.] 2004, pet. denied).

Appellant also complains that the trial court erred in dismissing his case without making findings of fact and conclusions of law. Assuming he would otherwise be entitled to such findings and conclusions in these circumstances, the record does not show that he ever requested them, as he must under Texas Rule of Civil Procedure 296, and thus he has waived his right to complain about this issue.

We affirm the trial court=s judgment.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed August 8, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Guzman.

[1] Appellees are not clear as to whether they contend the probate court=s jurisdiction is exclusive or concurrent. See Saldarriaga v. Saldarriaga, 121 S.W.3d 493, 500B02 (Tex. App.CAustin 2003, no pet.) (explaining why statutory probate courts have exclusive jurisdiction over guardianship appointments of children); Tex. Prob. Code Ann. ' 606(h) (Vernon Supp. 2005) (providing that district courts and probate courts have concurrent jurisdiction over many actions involving guardians). We need not decide this issue because dismissal was proper under either theory. See Tex. Fam. Code Ann. ' 155.102 (Vernon 2002) (stating that if one court determines that another court has exclusive jurisdiction over a child, the first court must dismiss the case); Rowland v. Willy, 751 S.W.2d 725, 726 (Tex. App.CHouston [14th Dist.] 1988, no writ) (AWhere the statutory scheme confers concurrent jurisdiction on more than one court, deference to the first court acquiring jurisdiction is a judicial imperative.@); see also Barrientos v. Nava, 94 S.W.3d 270, 277 (Tex. App.CHouston [14th Dist.] 2002, no pet.) (noting that ATexas law greatly discourages the multiplicity of suits, preferring that all disputes between parties over the same subject matter be settled in one suit@).