Restricted Appeal Requires Nonparticipation Showing | In the Interest of B.J.M. (2026)

In the Interest of B.J.M., a Child, 04-25-00382-CV, May 27, 2026.

On appeal from 285th Judicial District Court, Bexar County, Texas

Synopsis

A restricted appeal does not invoke appellate jurisdiction unless the appellant affirmatively shows the jurisdictional nonparticipation element required by Texas Rule of Appellate Procedure 25.1(d)(7)(A) and Ex parte E.H. An untimely regular appeal cannot be salvaged by re-labeling it a restricted appeal when the appellant never asserts, much less establishes, that he did not participate in the hearing resulting in the challenged judgment.

Relevance to Family Law

This decision matters immediately in SAPCRs, default divorces, modification suits, termination cases, enforcement proceedings, and post-answer default property cases because family-law practitioners routinely confront late-filed notices of appeal and attempted restricted appeals after default or quasi-default judgments. The Fourth Court’s opinion underscores that in family litigation, as elsewhere, restricted-appeal jurisdiction is not a matter of equitable framing or substantial complaint; it turns on strict satisfaction of jurisdictional predicates, including an express and supportable showing that the appellant did not participate in the hearing that produced the complained-of judgment. For lawyers handling custody or property judgments entered after nonappearance, the case is a reminder that appellate preservation begins with the notice itself and that jurisdiction cannot be created through rhetoric, collateral litigation, or generalized constitutional objections.

Case Summary

Fact Summary

The trial court signed a “Default Final Order in Suit Affecting Parent-Child Relationship” on October 1, 2024. More than eight months later, on June 13, 2025, the appellant attempted to appeal that order through a “Special Notice of Appeal.” That filing was facially untimely as a regular appeal under the ordinary deadlines in the Texas Rules of Appellate Procedure.

The court of appeals issued multiple jurisdictional show-cause orders. In response, the appellant argued he had not made a strategic choice to allow deadlines to lapse and referenced filings from a related matter, including notices of appeal filed under a different trial-court cause number. The Fourth Court eventually treated those earlier filings as bona fide attempts to invoke jurisdiction for a restricted appeal, but only conditionally and only if the appellant amended his notice to comply with Rule 25.1(d)(7).

The court then gave the appellant repeated opportunities to cure the defects. It specifically identified the critical omission: the amended notice did not state that the appellant “did not participate — either in person or through counsel — in the hearing that resulted in the judgment complained of,” and it also lacked the required verification. The court expressly advised that the nonparticipation requirement affected jurisdiction under Ex parte E.H. Even after that warning, and even after the court allowed the issue to be addressed in merits briefing, the appellant never asserted nonparticipation. Instead, he filed a two-page “Notice of Constitutional Crisis” referring to federal litigation and alleged constitutional defects in the underlying case. He never filed a proper appellate brief and never established that he did not participate in the dispositive hearing.

Issues Decided

• Whether an untimely regular appeal from a final SAPCR order could proceed.
• Whether the appellant had invoked the court’s jurisdiction through a restricted appeal.
• Whether Rule 25.1(d)(7)(A)’s nonparticipation statement is a jurisdictional requirement for a restricted appeal.
• Whether dismissal is required when the appellant never asserts or establishes that he did not participate in the hearing resulting in the complained-of judgment.

Rules Applied

The court relied on the ordinary appellate timetables in Texas Rules of Appellate Procedure 26.1 and 26.3, along with Verburgt v. Dorner, 959 S.W.2d 615 (Tex. 1997), for the proposition that a regular appeal must be timely perfected and that a timely filed instrument may sometimes constitute a bona fide attempt to invoke appellate jurisdiction.

For restricted appeals, the court focused on Texas Rule of Appellate Procedure 25.1(d)(7), which requires a notice of restricted appeal to state, among other things, that the appellant is a party affected by the judgment but did not participate, in person or through counsel, in the hearing that resulted in the complained-of judgment. The rule also requires verification. The court further cited Rule 25.1(g), which permits amendment of a notice of appeal to correct defects or omissions.

The principal substantive authority was Ex parte E.H., 602 S.W.3d 486, 495–97 (Tex. 2020). There, the Texas Supreme Court identified the elements necessary to “sustain” a restricted appeal and held that the first three are jurisdictional: timely filing within six months, party status, and nonparticipation in the relevant hearing together with the absence of timely post-judgment filings. The Fourth Court also referenced Sweed v. Nye, 323 S.W.3d 873 (Tex. 2010), for the proposition that a timely but defective notice may invoke jurisdiction and later be amended, but only if the jurisdictional basis can ultimately be established.

Application

The Fourth Court separated two questions that practitioners sometimes collapse: whether a document is sufficient as an initial jurisdiction-invoking filing, and whether the jurisdictional requisites for the appellate vehicle chosen are actually present. The court was willing to give the appellant every reasonable benefit on the first question. It treated notices filed in a different cause number as bona fide attempts to invoke restricted-appeal jurisdiction and allowed amendment under Rule 25.1(g). It also identified the defects with specificity and gave the appellant multiple opportunities to cure them.

But the court was equally clear that leniency toward defective form does not relax jurisdictional substance. The appellant’s problem was not merely that his paperwork was inartful. He never alleged the decisive fact necessary for restricted-appeal jurisdiction: that he did not participate in the hearing that resulted in the October 1, 2024 judgment. The court pointed out this omission directly, cited Ex parte E.H., and invited the parties to address the jurisdictional issue in their briefs. Even then, the appellant filed no brief and offered no verified assertion of nonparticipation. His filing about a supposed “constitutional crisis” did nothing to satisfy Rule 25.1(d)(7)(A) or the jurisdictional framework outlined in Ex parte E.H.

That distinction drove the outcome. The court could not entertain the case as a regular appeal because the notice was late. And it could not entertain the case as a restricted appeal because the appellant never established one of the jurisdictional elements. The appeal therefore failed not on the merits, but at the threshold.

Holding

The court held that it lacked jurisdiction over the attempted regular appeal because the notice of appeal was untimely filed under the applicable appellate deadlines. No timely perfection of an ordinary appeal occurred from the October 1, 2024 final SAPCR order.

The court also held that the attempted restricted appeal failed for want of jurisdiction because the appellant never asserted or established that he did not participate in the hearing that resulted in the challenged judgment, as required by Rule 25.1(d)(7)(A) and Ex parte E.H. The court emphasized that nonparticipation is not a technical afterthought; it is a jurisdictional predicate.

Finally, the court denied the appellant’s motion to proceed by restricted appeal and dismissed the appeal for lack of jurisdiction. The opinion makes clear that while Texas courts may allow amendment of defective notices, they will not infer a missing jurisdictional fact that the appellant has never pleaded, verified, or supported.

Practical Application

For Texas family-law litigators, the practical lesson is straightforward: when a client appears after a default or post-answer default judgment and the regular appellate deadline has expired, the first analytic step is not “what are our merits issues?” but “do we actually have a restricted appeal?” In many family cases, especially SAPCRs and modifications, lawyers inherit matters in procedural disarray. This opinion teaches that courts may be accommodating on mislabeled filings, wrong cause numbers, and amendable defects, but they will not overlook the absence of a jurisdictional allegation of nonparticipation.

In divorce litigation, this becomes critical where one spouse claims a default property division is voidable because of notice defects or hearing irregularities. If that spouse attended, appeared through counsel, or otherwise participated in the dispositive hearing, restricted appeal may be unavailable regardless of the perceived strength of the substantive complaint. In custody and SAPCR practice, where temporary orders, final conservatorship adjudications, and default parentage or support rulings can produce cascading consequences, counsel must investigate precisely what hearing produced the complained-of judgment and whether the client participated in that hearing in any capacity.

The opinion also highlights a tactical point for appellees. If the appellant is outside the normal timetable and attempts to proceed by restricted appeal, scrutiny should immediately focus on the notice of appeal, verification, participation history, and any post-judgment filings. A jurisdictional challenge may end the appeal before merits briefing gains traction. For appellants, by contrast, the lesson is to build the jurisdictional record early and explicitly. Do not assume the court will infer nonparticipation from a “default” label in the judgment. In family cases, defaults are often not true no-answer defaults, and participation questions can be nuanced.

Checklists

Evaluating Whether a Restricted Appeal Is Available

• Confirm the date the final judgment or appealable order was signed.
• Calculate whether a notice seeking restricted appeal was filed within six months of that signing date.
• Confirm the client was a party to the underlying suit.
• Determine whether the client participated, either in person or through counsel, in the hearing that resulted in the complained-of judgment.
• Determine whether the client timely filed any post-judgment motion, request for findings of fact and conclusions of law, or other filing that defeats restricted-appeal posture.
• Identify whether error is likely apparent on the face of the record, recognizing this is a merits element rather than the full jurisdictional inquiry.

Drafting the Notice of Restricted Appeal

• State that the appeal is a restricted appeal.
• Identify the judgment or order being challenged with precision.
• State that the appellant is a party affected by the judgment.
• State expressly that the appellant did not participate, in person or through counsel, in the hearing that resulted in the judgment complained of.
• Include the required verification under Rule 25.1(d)(7).
• File the notice in the correct cause number and court.
• If an earlier notice was defective, amend promptly under Rule 25.1(g) before briefing.

Investigating “Participation” in Family Cases

• Obtain the reporter’s record for the dispositive hearing.
• Review docket entries, notices of hearing, and settings.
• Determine whether counsel appeared, announced, objected, cross-examined, or otherwise participated.
• Separate participation in earlier hearings from participation in the hearing that actually resulted in the challenged judgment.
• Review whether mediation, status conferences, prove-ups, or enforcement settings could be argued to constitute the relevant hearing.
• Do not rely on the word “default” in the order as proof of nonparticipation.

Preserving Appellate Options After a Family-Law Default Judgment

• Calendar ordinary appellate deadlines immediately upon judgment.
• Evaluate whether a motion for new trial is the better procedural vehicle than a restricted appeal.
• Consider whether a bill of review, rather than an appeal, is the realistic option if participation occurred or deadlines expired.
• Gather affidavits and record support promptly while memories and file access remain fresh.
• If appellate jurisdiction is uncertain, address it directly in the notice and in the opening brief.
• Avoid collateral rhetoric that does not answer the court’s jurisdictional concerns.

Appellee’s Jurisdictional Challenge Checklist

• Compare the judgment date against the notice-of-appeal date.
• Test whether the appeal is timely as a regular appeal.
• If styled as a restricted appeal, inspect the notice for Rule 25.1(d)(7) compliance.
• Challenge absence of a nonparticipation statement and absence of verification.
• Review the clerk’s and reporter’s records for any participation by the appellant or counsel.
• Review post-judgment filings for motions or requests that negate restricted-appeal availability.
• Raise Ex parte E.H. early and frame nonparticipation as a jurisdictional defect, not merely a pleading defect.

Citation

In the Interest of B.J.M., a Child, No. 04-25-00382-CV, 2026 WL ___ (Tex. App.—San Antonio May 27, 2026, no pet.) (mem. op.).

Full Opinion

Read the full opinion here

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