Granting a second mistrial doesn't extend the dismissal deadline a second time.

Dismissal deadlines are boring. At least, until yours is passed and the case is dismissed.

In re G.P., No. 03-22-00796-CV (Tex. App.—Austin Feb. 10, 2023, orig. proceeding), available at https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=f75969f5-5d68-49b5-bca3-14d7d8462e81&coa=coa03&DT=Opinion&MediaID=cde21e46-f359-45ae-a43f-1c1a435c0ff1.

Here's the timeline:

Feb. 2020 – trial court signs ex parte order appointing the Department as the temporary managing conservator of the Children.

Before original deadline – trial court extends the dismissal deadline based on extraordinary circumstances.

Dismissal deadline extended several times under the emergency COVID orders.

May 9, 2022 – jury trial timely commenced.

June 1, 2022 – trial court declared a mistrial after the jury announced they were deadlocked, and granted a motion for new trial. This empowered the trial court to extend the dismissal deadline to November 28, 2022.

The parties (excluding CASA) signed a rule 11 agreement and agreed for the trial court to appoint Mother the joint managing conservator of the children. The parties agreed to waive the jury trial so that ask the trial judge to approve the agreement.

November 28, 2022 – trial court heard testimony from three witnesses, and agreed with CASA that the Rule 11 was not in the best interest of the child. The trial court then declared a mistrial, ordered a new trial, and extended the dismissal deadline another six month. The trial court’s reasoned that it had dismissed the jury panel but would not have done so had it known that CASA did not support the agreement or that the person selected as the possessory conservator in the settlement had not fostered the children.

After a motion to dismiss was denied, Mother filed a petition for writ of mandamus.


The original dismissal deadline is the first Monday after the first anniversary of the date the court appointed the department as TMC. TFC § 263.401. If certain steps are taken, the dismissal deadline can be extended by six months. TFC § 263.401(b). Additionally, if trial commenced before the dismissal deadline, and a motion for new trial is granted, there can be another extension of the dismissal deadline. TFC § 263.401(b-1).

The problem is (c), which states that a trial court “may not grant an additional extension that extends the case beyond the required date for dismissal under Subsection (b) or (b-1) as applicable.” TFC § 263.401(c).

Money quote from the opinion:

Accordingly, by its terms, section 263.401 appears to allow at most one extension under subsection (b) and one extension under subsection (b-1) but does not allow more than one extension under either subsection, and there do not appear to be any exceptions found in the statutory framework or identified in governing case law.

Slip op. at 9.

In this case, since a motion for new trial was already granted, and the dismissal deadline already extended under both subsections (b) and (b-1), the trial court was unable to extend the dismissal date under either subsection a second time. That meant that the dismissal date was not changed from November 28, 2022. As trial had not commenced by that date, then the case was automatically dismissed.

Mandamus conditionally granted.

The importance of this opinion going forward is that after a mistrial is granted, the second trial must be set early enough that a third trial could occur if a second mistrial is necessary.

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