IN THE INTEREST OF B.B.S. a/k/a C.L.B

DISMISSED; Opinion Filed October 17, 2007.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00222-CV
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IN THE INTEREST OF B.B.S. a/k/a C.L.B.
 
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On Appeal from the 304th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 06-1491-W
                                
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MEMORANDUM OPINION
Before Justices Richter, Francis, and Lang-Miers
Opinion By Justice Lang-Miers
        Samantha Starling, B.B.S.'s birth mother, appeals an associate judge's December 7, 2006 decree of termination that purported to terminate Starling's parental rights. In her first issue on appeal, Starling acknowledges that this Court may not have jurisdiction to consider this appeal because “the termination order signed by the associate judge may not constitute a final appealable judgment because the referring court did not sign an order conforming to the associate judge's findings.” We agree with Starling. We conclude that, under Texas Family Code sections 201.007, 201.013(b), and 201.016(b) and (c), the order appealed is interlocutory. We therefore sustain Starling's first issue, do not reach her other issues, and dismiss the appeal for want of jurisdiction.         Under the 2006 version of Texas Family Code section 201.007, which applies here,   See Footnote 1  associate judges only had the power to issue final orders if they were agreed or default orders. See Act effective Sept. 1, 2003, 78th Leg. R.S., 2003 Tex. Gen. Laws 476 (enacting relevant amendments to prior version of Tex. Fam. Code Ann. § 201.007) amended by Act effective June 15, 2007, 80th Leg. R.S., 2007 Tex. Gen. Laws 839 (to be codified as an amendment of Tex. Fam. Code Ann. § 201.007); see also Chacon v. Chacon, 222 S.W.3d 909, 912 (Tex. App.-El Paso 2007, no pet.) (“In section 201.007, the legislature has not given associate judges the power to render judgment outside the context of an agreed order or default.”). Otherwise, under section 201.013(b) of the Texas Family Code, “the findings and recommendations of the associate judge become the order of the referring court only on the referring court's signing an order conforming to the associate judge's report.” Tex. Fam. Code Ann. § 201.013(b) (Vernon Supp. 2006) (emphasis added). Under sections 201.016(b) and (c) of the Texas Family Code, unless the associate judge entered a default or agreed order, “the date an order or judgment by the referring court is signed is the controlling date for the purposes of appeal to or request for other relief from a court of appeals or the supreme court.” Id. §§ 201.016(b) and (c).
        In this case, it is undisputed that the associate judge did not enter a default or agreed order. It is also undisputed that the district court did not sign an order conforming to the associate judge's decree of termination. Nevertheless, Little Flower argues that this Court should treat the associate judge's decree of termination as final. First, Little Flower argues that the associate judge's decree of termination is akin to an agreed order because Starling signed an affidavit of relinquishment before the termination proceeding was filed in which she consented to have the termination proceeding “decided by an associate judge.” But Little Flower does not cite authority and we have found none to support the proposition that an agreement to have a termination proceeding heard by an associate judge renders the associate judge's termination decree a final judgment of the referring court that is subject to appeal.
        Second, Little Flower argues that it is “protocol” in Dallas County for associate judges' termination orders in adoption cases to be treated as final orders. However, there is nothing in the record to support this argument, and it is not consistent with the unambiguous language of the statutes cited above.
        Third, Little Flower argues that Starling has waived her right to complain about the lack of a conforming order from the referring court because she did not raise the issue with the referring court and all the parties and the district court treated the associate judge's ruling as a final order during a subsequent hearing in the case. Starling essentially concedes, in her first issue in this appeal, that this issue may need to be raised first with the district court. But we do not agree that Starling has waived her right to complain about the lack of a conforming order. Under section 201.016(b) of the Texas Family Code, a conforming order is required in this case in order to confer subject-matter jurisdiction on this Court. See Tex. Fam. Code Ann. § 201.016(b) (Vernon Supp. 2006). And “[s]ubject-matter jurisdiction cannot be waived or conferred by agreement, must be considered by a court sua sponte, and can be raised for the first time on appeal.” Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 379 (Tex. 2006); see also, e.g., Arnold v. W. Bend Co., 983 S.W.2d 365, 366 (Tex. App.-Houston [1st Dist.] 1998, no pet.) (dismissing appeal for want of jurisdiction because “there is no final, appealable judgment.”).
        Finally, during oral argument in this case, Little Flower pointed to two affidavits of relinquishment of parental rights signed by both birth parents in which they waived their right to notice of, and attendance at, the final termination hearing. Little Flower also noted that under the recent amendment to section 201.007 of the Texas Family Code, associate judges now have the power to issue a final order if a party files an unrevoked waiver under Texas Rule of Civil Procedure 119 waiving notice of, and appearance at, the final hearing. Little Flower contends that this amendment proves that the legislature always intended that an associate judge's termination decree should be treated as a final order. We disagree. When a statute is amended, we presume the legislature intended to change the law. See, e.g., Jackson v. State, 94 S.W.3d 46, 49 (Tex. App.Tyler 2002, pet. ref'd) (when legislature amends statute, it is presumed to have changed the law); Ford Motor Co. v. Motor Vehicle Bd., 21 S.W.3d 744, 763 (Tex. App.-Austin 2000, pet. denied) (“When the legislature enacts an amendment, we may presume that it thereby intended to change the original act by creating a new right.”).
        We conclude that the prior version of section 201.007 applicable to this case cannot be read to render the associate judge's termination decree a final order. See, e.g., Chacon, 222 S.W.3d at 912 (“In section 201.007, the legislature has not given associate judges the power to render judgment outside the context of an agreed order or default.”).
        We further conclude that the associate judge's ruling is an interlocutory order not subject to review on appeal. Consequently, we dismiss this appeal for lack of jurisdiction. And because we are dismissing this appeal, we also deny as moot Little Flower's motion to dismiss this appeal based on other grounds.
 
 
                                                          
                                                          ELIZABETH LANG-MIERS
                                                          JUSTICE
 
 
070222f.p05
 
Footnote 1 Section 201.007 was amended as of June 15, 2007 to give associate judges additional power to issue final orders. See Act effective June 15, 2007, 80th Leg. R.S., 2007 Tex. Gen. Laws 839 (to be codified as an amendment of Tex. Fam. Code Ann. § 201.007). We do not need to address whether the new section 201.007 would have given the associate judge the authority to issue a final termination decree in this case because the underlying case and this appeal were filed before this amendment.