in Re the Texas Department of Family and Protective Services

Fourth Court of Appeals
San Antonio, Texas

MEMORANDUM OPINION
No. 04-22-00092-CV

IN RE THE TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES

Original Mandamus Proceeding 1

Opinion by: Patricia O. Alvarez, Justice

Sitting: Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Beth Watkins, Justice

Delivered and Filed: June 22, 2022

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

The child at the center of this case is J.F., a sixteen-year-old child in the managing

conservatorship of the Department of Family and Protective Services. In its February 8, 2022

“Order Following Hearing Regarding Placement,” 2 the trial court ordered the Department to enter

a child-specific contract to place J.F. “within Bexar County whether it is in a foster home, group

home, or transitional living” at the rate of $500 per day.

The Department filed a motion to stay the order, which we granted, and a petition for writ

of mandamus complaining of the order. The trial court and the child’s ad litem filed responses.

1
This proceeding arises out of Cause No. 2020-PA-01628, styled In the Interest of J.F., a Child, pending in the 407th
Judicial District Court, Bexar County, Texas, the Honorable Mary Lou Alvarez presiding.
2
Although the trial court’s order states the permanency hearing was held on February 4, 2022, the reporter’s record
shows it was held on February 2, 2022. The trial court signed the order on February 8, 2022, and that is how we refer
to the challenged order.
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Having considered the petition, the record, and the responses, we conditionally grant the

petition for writ of mandamus.

MANDAMUS STANDARD OF REVIEW

Generally, to obtain mandamus relief, a petitioner “must show that the trial court

committed a clear abuse of discretion and that [the petitioner] 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.” Id.

(quoting Walker v. Packer, 827 S.W.2d 833, 839, 840 (Tex. 1992)).

However, the petitioner does not have to show a lack of an adequate appellate remedy for

mandamus relief to be appropriate if the complained-of order is void. In re Sw. Bell Tel. Co., 35

S.W.3d 602, 605 (Tex. 2000) (orig. proceeding) (per curiam). “[A] judgment [is] void when ‘the

court rendering judgment had no jurisdiction of the parties or property, no jurisdiction of the

subject matter, no jurisdiction to enter the particular judgment, or no capacity to act.’” PNS Stores,

Inc. v. Rivera, 379 S.W.3d 267, 272 (Tex. 2012) (quoting Travelers Ins. Co. v. Joachim, 315

S.W.3d 860, 863 (Tex. 2010)).

BACKGROUND

In August 2020, the Department filed its original petition for protection of J.F., for

conservatorship of J.F., and for termination of J.F.’s parents’ rights. In October 2021, the trial

court 1 found that J.F.’s mother and father had (1) constructively abandoned J.F. and (2) failed to

comply with their respective service plans. It also found that terminating the parents’ rights was

in J.F.’s best interest, and it appointed the Department as J.F.’s permanent managing conservator.

1
The Honorable Susan D. Reed, sitting by assignment, signed the October 27, 2021 order.

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At a permanency hearing on February 2, 2022, the trial court reviewed and assessed the

Department’s care for J.F. In its February 8, 2022 order, the trial court included the following:

2.8. IT IS ORDERED that the DEPARTMENT shall enter a Child Specific
Contract for [J.F.] at the rate of $500 per day, for the purpose of placement
within Bexar County whether it is in a foster home, group home, or
transitional living. Said Contract shall be circulated to the Attorneys no
later than February 11, 2022. IT IS FURTHER ORDERED that this
portion of the Order shall be stayed until the next scheduled hearing as
indicated below.

On February 15, 2022, the Department filed a petition for writ of mandamus and a motion

for emergency relief to stay the trial court’s order. The next day, this court granted the stay and

requested responses. The trial court and the attorney ad litem for the real party in interest filed

responses.

DISCUSSION

In its petition, the Department argues that the trial court abused its discretion in ordering

the Department to pay a specified amount for J.F.’s foster care because, inter alia, the trial court

violated the Separation of Powers Clause of the Texas Constitution. We agree.

In In re The Texas Department of Family and Protective Services, No. 04-22-00040-CV,

2022 WL 1751677 (Tex. App.—San Antonio Jun. 1, 2022, orig. proceeding), we considered

whether the trial court could order the Department to enter a child-specific contract for foster care

at a specific daily rate. Id. at *7–8. In that case, we held that the trial court’s order violated the

Separation of Powers Clause of the Texas Constitution, id. at *8, which was a clear failure to

correctly analyze or apply the law, and which constituted an abuse of discretion, see In re Ford

Motor Co., 165 S.W.3d at 317.

The same principle applies here: Paragraph 2.8 of the trial court’s order, which requires the

Department to enter a child-specific contract for J.F.’s care at a specific rate, violates the

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Separation of Powers Clause, incorrectly analyzes or misapplies the law, and is void. See PNS

Stores, 379 S.W.3d at 272; In re Ford Motor Co., 165 S.W.3d at 317.

CONCLUSION

The trial court lacked the authority—constitutional, statutory, inherent, or otherwise—to

require the Department to “enter a Child Specific Contract for [J.F.] at the rate of $500 per day,

for the purpose of placement within Bexar County whether it is in a foster home, group home, or

transitional living.” Thus, the trial court’s inclusion of paragraph 2.8 in its February 8, 2022 order

was an abuse of discretion, that paragraph is void, and the Department is entitled to relief.

We conditionally grant the Department’s petition for writ of mandamus. We direct the trial

court to, no later than fifteen days from the date of this opinion, vacate paragraph 2.8 of its

February 8, 2022 “Order Following Hearing Regarding Placement.” We are confident the trial

court will promptly comply; our writ will issue only if it does not.

Patricia O. Alvarez, Justice

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