in Re the Texas Department of Family and Protective Services

Fourth Court of Appeals
San Antonio, Texas

MEMORANDUM OPINION
No. 04-22-00091-CV

IN RE THE TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES

Original Mandamus Proceeding 1

Opinion by: Rebeca C. Martinez, Chief Justice

Sitting: Rebeca C. Martinez, Chief Justice
Irene Rios, Justice
Liza A. Rodriguez, Justice

Delivered and Filed: June 22, 2022

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

The child at the center of this case is C.S., a fifteen-year-old who is in the managing

conservatorship of the Department of Family and Protective Services (the “Department”).

Following a February 9, 2022 hearing, the trial court signed an order entitled “Special Status

Hearing Order” (the “February 9 order”). 2 This order concerned C.S.’s placement and required

the Department to “refer or send a letter of intent to enter a child specific contract, with a $500.00

(five hundred and 00/100 dollars) daily rate, to a minimum of 6 child placing agencies by close of

business on February 11, 2022” and to “provide the child’s attorney ad litem and the mother’s

attorney ad litem evidence of compliance.” The Department filed a motion to stay the February 9

1
This proceeding arises out of Cause No. 2021-PA-02064, styled In the Interest of C.S., a Child, pending in the 285th
Judicial District Court, Bexar County, Texas. The Honorable Mary Lou Alvarez signed the order at issue in this
proceeding.
2
The trial court signed the order on February 10, 2022.
 04-22-00091-CV

order, which we granted in part, and a petition for writ of mandamus complaining of the order.

The trial court (hereinafter “the trial court” or “respondent”) and the child’s attorney ad litem filed

responses. We conditionally grant the petition for writ of mandamus.

MANDAMUS STANDARD OF REVIEW

To be entitled to mandamus relief, the Department must show the trial court committed a

clear abuse of discretion and the Department has no adequate remedy by appeal. In re Ford Motor

Co., 165 S.W.3d 315, 317 (Tex. 2005) (orig. proceeding) (per curiam). A trial court abuses its

discretion if “it reaches a decision so arbitrary and unreasonable as to amount to a clear and

prejudicial error of law” or if it clearly fails to correctly analyze or apply the law. Walker v. Packer,

827 S.W.2d 833, 839, 840 (Tex. 1992) (citation omitted). A “mandamus will not issue when the

law provides another plain, adequate, and complete remedy.” In re Tex. Dep’t of Family &

Protective Servs., 210 S.W.3d 609, 613 (Tex. 2006). However, if the complained-of order is void,

the Department does not have to show a lack of an adequate appellate remedy for mandamus relief

to be appropriate. See In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding)

(per curiam). “A judgment is void only when it is apparent that the court rendering judgment had

no jurisdiction of the parties, no jurisdiction of the subject matter, no jurisdiction to enter the

judgment, or no capacity to act as a court.” Cook v. Cameron, 733 S.W.2d 137, 140 (Tex. 1987)

(citation omitted).

DISCUSSION

In light of our holding in In re Texas Department of Family and Protective Services, No.

04-22-00040-CV, 2022 WL 1751377 (Tex. App.—San Antonio June 1, 2022, no pet. h.) — in

which we held the trial court violated the Separation of Powers Clause of the Texas Constitution

when it usurped the legislatively vested authority of the Department to enter into child-specific

contracts at legislatively determined rates — we hold the trial court lacked the authority to issue

-2-
 04-22-00091-CV

the February 9 order in the underlying proceeding. Specifically, the trial court lacked the

authority—constitutional, statutory, inherent, or otherwise—to require the Department to “refer or

send a letter of intent to enter a child specific contract, with a $500.00 (five hundred and 00/100

dollars) daily rate, to a minimum of 6 child placing agencies by close of business on February 11,

2022” and to “provide the child’s attorney ad litem and the mother’s attorney ad litem evidence of

compliance.” See id. at *9. We hold the above portions of the February 9 order are void.

Consequently, the Department does not need to show the lack of an adequate appellate remedy to

be granted mandamus relief. See id.

We conditionally grant the petition for writ of mandamus and direct the trial court to, no

later than fifteen days from the date of this opinion, vacate the following decretal paragraphs in its

“Special Status Hearing Order” rendered on February 9, 2022 and signed on February 10, 2022:

3.11. The Department will refer or send a letter of intent to enter a child specific
contract, with a $500.00 (five hundred and 00/100 dollars) daily rate, to a minimum
of 6 child placing agencies by close of business on February 11, 2022.

3.12 The Department will provide the child’s attorney ad litem and the mother’s
attorney ad litem evidence of compliance with 3.1.1., above, by close of business
on February 11, 2022.

Rebeca C. Martinez, Chief Justice

-3-