ACCEPTED
01-15-00087-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
3/11/2015 11:31:03 AM
CHRISTOPHER PRINE
CLERK
No. 01-15-00087-CV
______________ FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
IN THE 3/11/2015 11:31:03 AM
COURT OF APPEALS CHRISTOPHER A. PRINE
FOR THE Clerk
FIRST DISTRICT OF TEXAS
at Houston
______________
IN RE
KIMBERLY MARKS
Relator
_________________
th
Original Proceeding from the 310 Judicial District Court
Harris County, Texas
Cause No. 2013-73339
RELATOR’S OBJECTION TO EXHIBIT MR-2
Steven D. Poock
State Bar Number 00794473
P.O. Box 984
Sugar Land, Texas 77487
Tel. (281) 277-7678
Fax (281) 277-7679
spoock@juno.com
Attorney for Relator, KIMBERLY MARKS
No. 01-15-00087-CV
KIMBERLY MARKS § IN THE FIRST
Relator §
§ COURT OF APPEALS
v. §
§ HOUSTON, TEXAS
THE DEPARTMENT OF FAMILY & §
PROTECTIVE SERVICES §
Real Party in Interest §
RELATOR’S OBJECTION TO EXHIBIT MR-2
TO THE HONORABLE JUSTICE OF SAID COURT:
Relator Kimberly Marks Objects to the Department’s Exhibit MR-2, and in
support of said motion shows:
1. Kimberly Marks objects to Exhibit MR-2 attached to First Supplemental
Mandamus Record of Real Party in Interest1.
2. Exhibit MR-2 was not served on Kimberly Marks, was never served,
presented or made available to Counsel, was never offered as evidence, and was never
admitted as evidence. Moreover, an affidavit cannot be cross-examined, and counsel had
no opportunity to develop any counter-evidence as the affidavit does not appear on the
court’s website, it was not available to counsel, and it was not offered at the hearing.
Counsel for Kimberly Marks was completely unaware of the affidavit until it was filed
with the appellate court.
1
The First Supplemental Mandamus Record of Real Party in Interest was the initial Record filed
by the Department.
3. Assuming the Department received an anonymous complaint, the proper
response, as detailed in Marks’ brief, is to afford Kimberly Marks her constitutionally
protected rights by first conducting an investigation (Chapter 261), then filing a SAPCR
(Chapter 262), obtaining a judicial finding of abuse or neglect, and then, upon a finding
of abuse or neglect, it would be appropriate for the Department to move the court for
Kimberly Marks to engage in child welfare services (Chapter 264). In the present case,
Kimberly Marks was dispossessed of her right to request a jury, was not afforded a full
adversarial hearing with 45 days notice, and the Department never obtained a finding of
abuse or neglect. Instead, with seven days notice, virtually no evidence, and nearly no
process, Relator lost her freedom and many of her constitutional rights, and was
subjected to invasive testing and being held in the courtroom against her will.
4. The right to forty-five days notice of trial is a constitutionally protected
right:
Rule 245 of the rules of civil procedure provides that a court may on its own
motion set a contested case for first setting for trial, with reasonable notice to the
parties of not less than forty-five days. See Tex.R.Civ.P. 245. This notice is
mandatory and involves the constitutionally protected right of due process. See
Transoceanic Shipping Co.. Inc. v. Gen'l Universal Sys., Inc., 961 S.W.2d 418,
420 n. 2 (Tex.App.-Houston [1st Dist.] 1997, no writ).
Burress v. Richardson, 97 S.W.3d 806 (Tex.App.- Dallas 2003, no pet.)
PRAYER
For the reasons listed above, Relator respectfully requests this Court to SUSTAIN
Relator’s objection to the Department’s Exhibit MR-2.
Respectfully Submitted,
/s/ Steven Poock
___________________
Steven Poock
P.O. Box 984
Sugar Land, Texas 77487
State Bar No. 00794473
spoock@juno.com
(281) 242-9700 Telephone
(281) 242-8340 Facsimile
/s/ Tom Sanders
___________________
Tom Sanders
P.O. Box 1860
Sugar Land, Texas 77487
State Bar No. 17609900
Tcsanders76@yahoo.com
(281) 242-9700 Telephone
(281) 242-8340 Facsimile
ATTORNEYS FOR RELATOR
KIMBERLY MARKS
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing has been served on the parties listed below on
this the 11th day of March, 2015.
/s/ Steven Poock
_______________________
Steven Poock
Respondent: The Honorable Judge Lisa Millard
Presiding Judge of the 310th Judicial District Court
201 Caroline, 13th Floor
Houston, TX 77002
Real Party in Interest: Damon Wayne Marks
1008 Railroad
Thornton, TX 76687
Real Party in Interest: Department of Family and Protective Services
Counsel Sandra Hachem
Sr. Assistant County Attorney
State Bar No. 08667060
1019 Congress, 17th Floor
Houston, Texas 77002
Sandra.Hachem@cao.hctx.net
(713) 274.5293 (telephone)
(713) 437.4700 (facsimile)