Texas Appellate Court Dismisses Appeal of Interlocutory Order Granting Bill of Review for Lack of Jurisdiction

Memorandum Opinion Per Curiam, 01-25-00625-CV, February 03, 2026.

On appeal from the 505th District Court, Fort Bend County, Texas

Synopsis

The First Court of Appeals dismissed this appeal for lack of jurisdiction, reaffirming the long-standing Texas rule that an order granting a bill of review is interlocutory if it vacates a prior judgment but does not resolve the underlying merits of the case. Because such orders are neither final judgments nor among the narrow class of appealable interlocutory orders authorized by statute, they cannot be challenged by direct appeal or mandamus until a final judgment is rendered in the underlying controversy.

Relevance to Family Law

In the context of family law litigation, bills of review are frequently employed to set aside decades-old divorce decrees or custody orders based on claims of extrinsic fraud or lack of due process. This decision serves as a strategic reminder for family law practitioners that a trial court’s decision to “re-open” a case via a bill of review is effectively unreviewable in the short term. Whether you are representing a spouse seeking to preserve a favorable property division or a parent challenging the sudden vacation of a custody order, the litigation must proceed through a full trial on the merits before the appellate court will exercise jurisdiction to review the propriety of the bill of review itself.

Case Summary

Fact Summary

The dispute originated from a 2023 judgment rendered in Fort Bend County. Appellee Erik Bustamante filed a petition for bill of review seeking to set aside that prior judgment. The trial court (specifically the associate judge, later adopted by the district judge) granted the bill of review, effectively vacating the 2023 decree but leaving the underlying merits of the parties’ dispute unresolved.

Appellant Mayra Isabel Bustamante sought to appeal this order. While the appeal was pending, she realized the potential jurisdictional defect and attempted to file a petition for writ of mandamus in the same court, which was denied. Subsequently, she moved to voluntarily dismiss her appeal “without prejudice.” The Court of Appeals, however, questioned its own jurisdiction and the propriety of a dismissal “without prejudice,” ultimately leading to this per curiam opinion.

Issues Decided

1. Does an order granting a bill of review constitute a final, appealable judgment if it vacates a prior judgment but does not dispose of the underlying claims?
2. Is the grant of a bill of review an authorized interlocutory appeal under the Texas Civil Practice and Remedies Code?
3. Can an appellate court dismiss an appeal “without prejudice to refiling” when it lacks subject matter jurisdiction over the underlying order?

Rules Applied

The Court relied on the fundamental principle that appellate jurisdiction is generally limited to final judgments—those that dispose of all parties and all issues—unless a specific statute authorizes an interlocutory appeal. Citing Kiefer v. Touris and Tesoro Petroleum v. Smith, the Court applied the rule that a bill of review order is interlocutory in nature if it sets aside a prior judgment but does not reach the merits.

Furthermore, the Court looked to Section 51.014(a) of the Texas Civil Practice and Remedies Code, which enumerates specific interlocutory orders eligible for immediate appeal. The grant of a bill of review is conspicuously absent from this list. Finally, the Court referenced Texas Rule of Appellate Procedure 42.1, noting it does not permit a dismissal “without prejudice” in a manner that would circumvent the expiration of plenary power or jurisdictional limits.

Application

The Court’s analysis centered on the procedural posture of the case. Because the trial court’s order only vacated the 2023 judgment and did not resolve the substantive issues that the bill of review “re-opened,” the order failed the test for finality. The Court treated the appellant’s attempt to pivot to mandamus as a recognition of this jurisdictional hurdle, but noted that even mandamus is generally unavailable because the appellant has an adequate remedy by appeal once a final judgment is eventually signed.

The Court also addressed the appellant’s request for a voluntary dismissal “without prejudice.” The Court clarified that it cannot grant a dismissal with such a caveat when the underlying problem is a total lack of jurisdiction. Instead, the Court must dismiss the appeal for want of jurisdiction, regardless of the appellant’s preference for the phrasing of the dismissal.

Holding

The Court held that the order granting the bill of review was interlocutory and not a final judgment because it did not dispose of the entire controversy on the merits. Consequently, the Court lacked jurisdiction to hear the appeal.

The Court further held that because the order is not specifically authorized for interlocutory appeal by the Texas Civil Practice and Remedies Code, it cannot be reviewed until a final judgment is rendered in the underlying case.

Finally, the Court held that it could not dismiss the appeal “without prejudice,” as the rules of appellate procedure do not provide for such a disposition when the court lacks jurisdiction. However, the Court clarified that the dismissal does not prejudice the appellant’s right to challenge the bill of review in a future appeal following a final judgment on the merits.

Practical Application

For the family law practitioner, this case dictates a specific tactical approach when a bill of review is granted:

1. Cease Immediate Appellate Efforts: Do not advise a client to appeal the grant of a bill of review immediately. It is a jurisdictional dead end that results in unnecessary fee expenditure.
2. Mandamus is Not a Safety Valve: Unless the trial court’s order is void (rather than merely erroneous), mandamus will likely be denied because the “re-litigation” of the case is not considered an irreparable harm that lacks an adequate remedy by appeal.
3. Preserve the Error for the “Real” Appeal: Treat the bill of review hearing as the first phase of a two-phase process. If the court grants the bill, ensure all objections to the three elements of the bill of review (meritorious defense, justification for failure to present it, and lack of negligence) are preserved in the record for an appeal that will occur only after the entire case is re-tried.

Checklists

Evaluating Bill of Review Appealability

• Check the Merits: Does the order resolve the underlying property, custody, or support issues?
  If yes: It may be a final judgment.
  If no: It is interlocutory and unappealable.
• Check the Statute: Does the order fall under Tex. Civ. Prac. & Rem. Code § 51.014? (Note: Granting a bill of review is not on this list).
• Mandamus Assessment: Is the order “void” (e.g., signed after plenary power expired without a proper petition)? If merely “erroneous,” mandamus will be denied.

Responding to a Granted Bill of Review

• Stay the Course: Prepare for discovery and trial on the underlying merits as if the original decree never existed.
• Record Preservation: Ensure the court reporter transcribed the bill of review hearing; this transcript will be essential for the eventual appeal after the new final judgment.
• Cost Management: Advise the client that they must “win twice”—first by prevailing on the merits of the re-opened case, and second by eventually appealing the decision to grant the bill of review in the first place.

Citation

Bustamante v. Bustamante, No. 01-25-00625-CV, 2026 WL [TBD] (Tex. App.—Houston [1st Dist.] Feb. 3, 2026, no pet. h.) (mem. op.).

Full Opinion

Full Opinion Link

~~5abd30cd-4c21-4e8e-9b9c-11a81d4df893~~