in Re the Texas Department of Family and Protective Services

Fourth Court of Appeals
San Antonio, Texas

MEMORANDUM OPINION
No. 04-22-00085-CV

IN RE THE TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES

Original Mandamus Proceeding 1

Opinion by: Lori I. Valenzuela, Justice

Sitting: Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Lori I. Valenzuela, Justice

Delivered and Filed: July 20, 2022

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

The child at the center of this case is A.A., a seventeen-year-old who has been in the

managing conservatorship of the Department of Family and Protective Services (the

“Department”) since September 25, 2021. In the underlying proceeding, the trial court signed an

“Order Following Hearing Regarding Placement for the Child [A.A.]” (the February 3rd order).

The Department filed with this court a motion to stay the order, which was granted, and a petition

for writ of mandamus complaining of the order. The trial court filed a response. We conditionally

grant the petition for writ of mandamus.

1
This proceeding arises out of Cause No. 2010-CI-00396, styled In the Interest of A.A. and T.F.B., Children, pending
in the 57th Judicial District Court, Bexar County, Texas. The Honorable Mary Lou Alvarez signed the order at issue
in this proceeding.
 04-22-00085-CV

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, 839-40 (Tex. 1992) (orig. proceeding) (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) (orig. proceeding).

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).

BACKGROUND

The parental rights of A.A.’s parents have been terminated, and the Department was named

her permanent managing conservator. The parental rights of A.A.’s sibling also were terminated,

and the Department was named permanent managing conservator of that child. On January 31,

2022, the trial court conducted a hearing regarding A.A.’s placement. Following the hearing, the

court signed the February 3rd order, which ordered in part as follows:

2.2 A child specific contract is to be worked up for Bexar County, drafted and ready
to present to CPAs [child placement agencies] by 5 p.m. on February 4, 2022.
2.2.1 A copy of the child specific contact [sic] is to be circulated to Maria
Salazar and Lee Golden.

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2.2.2 This contract must be provided to at least 3 CPAs by 5 pm on February
4, 2022.
2.2.3 The daily rate for the child for child specific contract is $575/day.

2.3 Maria Salazar and Lee Golden will reach out to Thrive, Fiesta Youth, and Pride
Center to see if they have had any contact with the child; further, they will report
back on what services may be incorporated into the further orders of the Court.

In its petition for writ of mandamus, the Department asserts, among other arguments, the

February 3rd order violated the Separation of Powers Clause by interfering with the Department’s

duties. 2 We agree.

DISCUSSION

In In re The Texas Department of Family and Protective Services, __ S.W.3d __, No. 04-

22-00040-CV, 2022 WL 1751377 (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 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 Walker, 827

S.W.2d at 839-40. The same principle applies here. Decretal paragraphs 2.2 and 2.3 of the

February 3rd order, which require the Department to enter a child-specific contract for A.A.’s care

at a specific rate, violates the Separation of Powers Clause, incorrectly analyzes or misapplies the

law, and is void.

2
On March 25, 2022, the trial court signed another order (the “March 25th order”), which involved the placement of
A.A. with an individual (“J.A.”). On March 30, 2022, relator filed a “Motion for Review of Further Orders,”
requesting we review the March 25th order in this original proceeding. We granted the motion. Subsequently, relator
filed a “Motion to Dismiss” stating A.A. is no longer living in J.A.’s home and is without placement. Accordingly,
relator asks this court to dismiss its Motion for Review of Further Orders.

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CONCLUSION

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

order that (1) “[a] child specific contract . . . be worked up for Bexar County, drafted and ready to

present to CPAs [child placement agencies] by 5 p.m. on February 4, 2022”; (2) “[a] copy of the

child specific contact [sic] . . . be circulated to Maria Salazar and Lee Golden”; (3) “[t]his contract

must be provided to at least 3 CPAs by 5 pm on February 4, 2022”; (4) “[t]he daily rate for the

child for child specific contract is $575/day”; and (5) “Maria Salazar and Lee Golden will reach

out to Thrive, Fiesta Youth, and Pride Center to see if they have had any contact with the child;

further, they will report back on what services may be incorporated into the further orders of the

Court.” Therefore, we hold the above portions of the February 3rd order are void. Accordingly,

the Department does not need to show the lack of an adequate appellate remedy to be granted

mandamus relief. See The Tex. Dep’t of Family and Protective Servs., 2022 WL 1751377, at *9.

Accordingly, 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 decretal

paragraphs 2.2 and 2.3 of its February 3, 2022 “Order Following Hearing Regarding Placement

for the Child [A.A.].” 3 We are confident the trial court will promptly comply; our writ will issue

only if it does not.

Lori I. Valenzuela, Justice

3
We construe relator’s Motion to Dismiss as a request to not review the March 25th order in this original proceeding.
We grant the request.

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