In Re the Texas Department of Family and Protective Services v. the State of Texas

Fourth Court of Appeals
San Antonio, Texas
OPINION

No. 04-24-00016-CV

IN RE THE TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES

Original Proceeding 1

Opinion by: Patricia O. Alvarez, Justice

Sitting: Patricia O. Alvarez, Justice
Irene Rios, Justice
Lori I. Valenzuela, Justice

Delivered and Filed: April 24, 2024

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

The Texas Department of Family and Protective Services seeks mandamus review of two

orders through which the trial court directs the daily tasks of Department employees, imposes

specific contractual obligations on the Department, requires the Department to disclose protected

information, and imposes sanctions on the Department. We conditionally grant mandamus relief.

BACKGROUND

The Department is the permanent managing conservator of J.D., the seventeen-year-old

child who is the subject of the underlying matter pending in the trial court. The Department has

been J.D.’s permanent managing conservator since June 29, 2021, when the trial court terminated

J.D.’s parents’ parental rights. Since then, the trial court has held periodic permanency review

1
This proceeding arises out of Cause No. 2020-PA-01945, styled In the Interest of J.D., a Child, pending in the 150th
Judicial District Court, Bexar County, Texas, the Honorable Mary Lou Alvarez presiding.
 04-24-00016-CV

hearings. See TEX. FAM. CODE ANN. § 263.501 (requiring the trial court to conduct permanency

review hearings in cases in which the Department has been named the child’s permanent managing

conservator in a final order terminating a parent’s parental rights “at least once every six months

until the [D]epartment is no longer the child’s managing conservator”). 2

On December 6, 2023, the trial court signed an order (the December Order) reflecting

rulings made during a permanency hearing on December 1, 2023. 3

It is ordered that each day of school that [J.D.] must attend, one of the individuals
in [J.D.’s] case team, including Cassandra Garza, Kassandra Salazar, Asenath
McCabe, Julian Apolinar, and Leticia Lozano be present to transport [J.D.] to
school.

A one hundred dollar ($100) fine will be ordered for each day of school that [J.D.]
misses without a showing that the inability to take [J.D.] to school was unavoidable.

On January 9, 2024, the trial court signed an order (the January Order) reflecting rulings

made during a placement and permanency hearing on January 4, 2024.

2.1. Beginning January 5, 2024 the Department will have a placement staffing from
4:00 p.m. until 5:00 p.m. All attorneys of record shall be invited to participate. The
staffings are to continue daily, seven days a week, until the child is in a licensed
placement.

2
In five prior opinions, this court has conditionally granted mandamus relief and directed the trial court to vacate
various orders arising from the same trial court cause number. See In re Tex. Dep’t of Fam. & Protective Servs., No.
04-23-00865-CV, 2024 WL 1289597 (Tex. App.—San Antonio Mar. 27, 2024, orig. proceeding) (orders requiring
the Department to provide round-the-clock supervision of child); In re Tex. Dep’t of Fam. & Protective Servs., No.
04-23-00382-CV, 2023 WL 5418313 (Tex. App.—San Antonio Aug. 23, 2023, orig. proceeding) (mem. op.) (orders
to secure two nannies, a therapist, a private tutor, and a placement for J.D.); In re Tex. Dep’t of Fam. & Protective
Servs., No. 04-22-00087-CV, 2022 WL 3219596 (Tex. App.—San Antonio Aug. 10, 2022, orig. proceeding) (mem.
op.) (orders requiring Department to draft child specific contracts and circulate them to child placing agencies); In re
Tex. Dep’t of Fam. & Protective Servs., No. 04-22-00163-CV, 2022 WL 2821251 (Tex. App.—San Antonio July 20,
2022, orig. proceeding) (mem. op.) (orders requiring the Department to secure and pay for a court reporter for
depositions of Department personnel); In re Tex. Dep’t of Fam. & Protective Servs., No. 04-22-00196-CV, 2022 WL
2442169 (Tex. App.—San Antonio July 6, 2022, orig. proceeding) (mem. op.) (orders directing Department
caseworker assignments and discipline of Department personnel).
3
While the trial court refers to the December 1, 2023 hearing as a “permanency and placement hearing,” placement
hearings are intended to review the appointment of the Department as a conservator, not to review the Department’s
efforts to find a placement for a child. See In re J.A.J., 243 S.W.3d 611, 617 (Tex. 2007) (“When the Department has
been named a child’s managing conservator, the court ‘shall hold a hearing to review the conservatorship appointment’
at least once every six months until the child becomes an adult’ . . . [to] continuously review the propriety of the
Department’s conservatorship . . . .” (quoting TEX. FAM. CODE ANN. § 263.002)).

-2-
 04-24-00016-CV

2.3. On or before January 8, 2024 at 8:00 a.m. The Department is to provide the
home and business addresses for the following employees: Aseneth McCabe;
Natasha Bussey; Ana Garcia; Janissa Harris; Julian Apolinar; and Stephanie Mack.
This information is to be provided to all attorneys of record on this case as well as
general counsel for this court.

2.4. If the attorneys of record [d]o not receive the addresses as ordered in 2.3., they
are authorized to hire private investigators to [sic] the information. The Court’s
expectation is that enforcement will be served on those who need to be served and
sent with 10 day[s’] notice so a hearing for enforcement will be heard in this court.

2.5. The Department will set up a savings account for the child by January 10, 2024
at 5:00 p.m. The attorneys representing the child will verify the account is set up.
Beginning January 11, 2024, the Department will deposit $500.00 (Five Hundred
Dollars) into the child’s savings account every 24 hours that the child is not in [a]
licensed placement.

2.6. The next time the child leaves care, he will be transported to and housed in
Odessa, Texas within 24 hours of his disappearance.

On January 9, 2024, the Department filed a petition for a writ of mandamus and a motion

for temporary relief. In its mandamus petition, the Department argued that the above-quoted

paragraphs should be vacated because they violate Texas law and the Separation of Powers Clause

of the Texas Constitution.

On January 16, 2024, we issued an order requesting a response, granting the Department’s

motion for temporary relief in part, and staying these challenged provisions pending consideration

of the mandamus petition.

STANDARD OF REVIEW AND APPLICABLE LAW

“Mandamus relief is warranted when the trial court clearly abused its discretion and the

relator has no adequate appellate remedy.” In re Coppola, 535 S.W.3d 506, 508 (Tex. 2017) (orig.

proceeding) (per curiam). “A trial court clearly 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 analyze or apply the law correctly . . . .” Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex.

2006) (orig. proceeding) (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.

-3-
 04-24-00016-CV

1985), disapproved of on other grounds by In re Columbia Med. Ctr. of Las Colinas, Subsidiary,

L.P., 290 S.W.3d 204 (Tex. 2009)).

“Mandamus is [also] proper if a trial court issues an order beyond its jurisdiction.” In re

Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding). “If a trial court issues an

order ‘beyond its jurisdiction,’ mandamus relief is appropriate because such an order is void ab

initio.” In re Panchakarla, 602 S.W.3d 536, 539 (Tex. 2020) (orig. proceeding). When the trial

court’s order is void, “the relator need not show that it did not have an adequate appellate remedy,

and mandamus relief is appropriate.” In re Sw. Bell Tel. Co., 35 S.W.3d at 605.

DEPARTMENT’S ARGUMENTS

A. Disclosing Protected Information

In its mandamus petition, the Department argues the trial court abused its discretion when

it ordered the Department to disclose the home addresses of Department employees without first

determining whether such information was protected from disclosure.

B. Unauthorized Provisions

The Department also argues the trial court lacked the authority to direct the daily tasks of

Department employees, order J.D.’s placement in a specific geographic location, and impose

sanctions for Department actions authorized by law or actions for which the Legislature chose not

to impose penalties. The Department contends that the Legislature granted the Department, not the

trial court, the authority to direct Department operations and to determine which services to

provide to the children in its care in accordance with the law and the budget appropriated by the

Legislature. According to the Department, the challenged provisions violate the Separation of

Powers Clause of the Texas Constitution.

-4-
 04-24-00016-CV

C. Department’s Previous Arguments

These arguments echo the arguments the Department has made in a series of mandamus

proceedings complaining that the same trial court violated the Separation of Powers Clause by

ordering the Department to expend funds in a particular manner. See, e.g., In re Tex. Dep’t of Fam.

& Protective Servs., 660 S.W.3d 248, 257 (Tex. App.—San Antonio 2022, orig. proceeding)

(holding orders requiring the Department to secure ankle monitoring for a child with a specific

company and to pay associated costs violated the Separation of Powers Clause and were void); In

re Tex. Dep’t Fam. & Protective Servs., 660 S.W.3d 161, 171 (Tex. App.—San Antonio 2022,

orig. proceeding) (recognizing that “the Legislature delegated the power to negotiate and execute

child-specific contracts to the Department”).

TRIAL COURT’S AUTHORITY

A. Separation of Powers

“The Separation of Powers Clause is violated (1) when one branch of government assumes

power more properly attached to another branch or (2) when one branch unduly interferes with

another branch so that the other cannot effectively exercise its constitutionally assigned powers.”

In re D.W., 249 S.W.3d 625, 635 (Tex. App.—Fort Worth 2008, pet. denied). “Where one branch

of government assumes powers more properly attached to another branch or unduly interferes with

the powers of another, any resulting order is void.” In re Tex. Dep’t of Family and Protective

Servs., 660 S.W.3d at 168.

-5-
 04-24-00016-CV

B. Permanency Hearing Assessments

The orders challenged in this mandamus proceeding were rendered at permanency hearings

following a final order. 4 See TEX. FAM. CODE ANN. §§ 263.002, .501; In re J.A.J., 243 S.W.3d

611, 617 (Tex. 2007) (“When the Department has been named a child’s managing conservator, the

court ‘shall hold a hearing to review the conservatorship appointment’ at least once every six

months until the child becomes an adult’ . . . [to] continuously review the propriety of the

Department’s conservatorship . . . .” (quoting TEX. FAM. CODE ANN. §§ 263.002, .501)). At such

hearings, the trial court shall “review the permanency progress report” filed by the Department.

See TEX. FAM. CODE ANN. § 263.5031(a)(4); In re Tex. Dep’t of Fam. & Protective Servs., 679

S.W.3d 266, 276 (Tex. App.—San Antonio 2023, orig. proceeding). “The inclusion of ‘review’

within the text of section 263.5031(a)(4) allows the court to inspect, consider, or reexamine the

Department’s permanency progress report.” In re Tex. Dep’t of Fam. & Protective Servs., 660

S.W.3d at 171.

As we have previously explained, at a permanency review hearing “a trial court may assess

the safety and well-being of the child and whether the child’s needs are being adequately

addressed.” In re Tex. Dep’t of Fam. & Protective Servs., 660 S.W.3d at 257. “But that charge

presupposes the trial court will faithfully follow the applicable laws.” In re Tex. Dep’t of Fam. &

Protective Servs., 679 S.W.3d at 276 (citing TEX. CONST. art. XVI, § 1 (oath of office); TEX. CODE

JUD. CONDUCT, CANONS 2(A), 3(B), 3(B)(2), reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G,

app. C; Tesco Am., Inc. v. Strong Indus., Inc., 221 S.W.3d 550, 555 (Tex. 2006) (emphasizing that

“judges are advocates only for the law”)).

4
While the trial court refers to the December 1, 2023 hearing as a “permanency and placement hearing,” placement
considerations are included in the trial court’s review during the permanency hearing. See TEX. FAM. CODE ANN.
§ 263.5031(a)(4).

-6-
 04-24-00016-CV

C. Limits on Trial Court’s Authority

We have also repeatedly explained that “the [L]egislature gave the Department the

authority to determine which goods and services to provide the children in its care and how much

to pay for those goods and services.” In re Tex. Dep’t of Fam. & Protective Servs., 660 S.W.3d at

257 (citing TEX. GOV’T CODE ANN. § 2155.144(c), (d)). We have held that when the trial court

orders the Department to enter into specific contracts to provide specific services to the children

in the Department’s care, it violates the Separation of Powers Clause of the Texas Constitution.

See, e.g., In re Tex. Dep’t of Fam. & Protective Servs., No. 04-23-00382-CV, 2023 WL 5418313,

at *6–7 (Tex. App.—San Antonio Aug. 23, 2023, orig. proceeding) (mem. op.).

Thus, “[w]hile the trial court has continuing jurisdiction over the case and the parties and

has the statutory authority to review the actions taken by the Department on behalf of a child under

its care, the court may not usurp legislative authority by substituting its policy judgment for that

of the Department.” In re Tex. Dep’t of Fam. & Protective Servs., 660 S.W.3d at 171 (cleaned up).

Our numerous mandamus decisions in similar cases have explained the limits of the trial

court’s authority and made clear that “[the trial court] does not have the power to order the

Department to provide specific goods and specific services to specific children at specific rates.”

In re Tex. Dep’t of Fam. & Protective Servs., 660 S.W.3d at 257.

ASSIGNING, MANAGING DEPARTMENT PERSONNEL

We first address the portions of the December Order and the January Order that putatively

assign and manage specific Department personnel.

A. Challenged Provisions

The December Order includes this provision:

It is ordered that each day of school that [J.D.] must attend, one of the individuals
in [J.D.’s] case team, including Cassandra Garza, Kassandra Salazar, Asenath

-7-
 04-24-00016-CV

McCabe, Julian Apolinar, and Leticia Lozano be present to transport [J.D.] to
school.

The January Order includes this provision:

2.1. Beginning January 5, 2024 the Department will have a placement staffing from
4:00 p.m. until 5:00 p.m. All attorneys of record shall be invited to participate. The
staffings are to continue daily, seven days a week, until the child is in a licensed
placement.

B. Assigning, Managing Department Personnel Prohibited

Our analysis is guided by cases in which similar orders, rendered by the same trial court,

were held to violate the Separation of Powers Clause. In one, we explained that the trial court has

no authority to direct Department personnel requirements or assignments.

We find no authority in the Family Code authorizing a trial court to impose specific
personnel requirements on the Department following its review of a permanency
progress report. Similarly, we are not aware of any authority that would permit a
trial court to substitute its judgment for the Department’s in determining an
individual caseworker’s caseload. . . . We do not question that trial courts have the
power to decide and monitor issues before them, especially when the best interest
of a child is at stake. However, this power does not extend to the assignment and
management of Department employees.

In re Tex. Dep’t of Fam. & Protective Servs., No. 04-22-00196-CV, 2022 WL 2442169, at *5 (Tex.

App.—San Antonio July 6, 2022, orig. proceeding) (mem. op.). Applying these same principles,

we conclude that the trial court had no authority to require Department employees to transport J.D.

to school each day or to participate in a daily placement staffing meeting. See In re Tex. Dep’t of

Fam. & Protective Servs., No. 04-23-00865-CV, 2024 WL 1289597 (Tex. App.—San Antonio

Mar. 27, 2024, orig. proceeding) (orders requiring the Department to provide round-the-clock

supervision of child violate the Separation of Powers Clause and are void); In re Tex. Dep’t of Fam.

& Protective Servs., 660 S.W.3d 175, 178 (Tex. App.—San Antonio 2022, orig. proceeding)

(holding trial court lacked authority to require Department employees to remain in the jury room

during work hours until a placement for a child was found).

-8-
 04-24-00016-CV

C. Challenged Provisions are Void

Accordingly, the first challenged paragraph in the December Order and paragraph 2.1 of

the January Order are void.

PROVIDING SPECIFIC SERVICES

Next, we address the provision that orders the Department to provide specific services.

A. Challenged Provision

The January Order includes this provision:

2.6. The next time the child leaves care, he will be transported to and housed in
Odessa, Texas within 24 hours of his disappearance.

B. Ordering Specific Services Prohibited

We have repeatedly held that a trial court has no authority to “impose specific contractual

obligations on the Department following the court’s review of the permanency progress report

[because] the Legislature delegated the power to negotiate and execute child-specific contracts to

the Department.” In re Tex. Dep’t of Fam. & Protective Servs., 660 S.W.3d at 171; see In re Tex.

Dep’t of Fam. & Protective Servs., 660 S.W.3d at 257 (citing TEX. GOV’T CODE ANN.

§ 2155.144(c), (d)) (“[T]he [L]egislature gave the Department the authority to determine which

goods and services to provide the children in its care and how much to pay for those goods and

services.”).

Moreover, because “[e]xceptions to the constitutionally mandated separation of powers are

never to be implied in the least,” Fin. Comm’n of Tex. v. Norwood, 418 S.W.3d 566, 570 (Tex.

2013), we do not recognize that a trial court has inherent or implied powers to specify child-

specific services, including any specification or limitations on geographic locations where such

services are to be secured. See In re Tex. Dep’t of Fam. & Protective Servs., 660 S.W.3d at 171

(“[T]he court ‘may not usurp legislative authority by substituting its policy judgment for that of

-9-
 04-24-00016-CV

the [Department] acting as a legislative body.’” (quoting Henry v. Cox, 520 S.W.3d 28, 37 (Tex.

2017) (second alteration in original))).

C. Specific Services Provision is Void

Paragraph 2.6 of the January Order impermissibly infringes on the Department’s exclusive

power to negotiate and execute child-specific contracts, thereby usurping Legislative authority.

Accordingly, paragraph 2.6 of the January Order is void.

SANCTIONS

Next we address the provisions that order specific economic consequences.

A. Challenged Provisions

The December Order includes this provision:

A one hundred dollar ($100) fine will be ordered for each day of school that [J.D.]
misses without a showing that the inability to take [J.D.] to school was unavoidable.

The January Order includes this provision:

2.5. The Department will set up a savings account for the child by January 10, 2024
at 5:00 p.m. The attorneys representing the child will verify the account is set up.
Beginning January 11, 2024, the Department will deposit $500.00 (Five Hundred
Dollars) into the child’s savings account every 24 hours that the child is not in [a]
licensed placement.

B. Sanctions Authority

No litigant claims, and the record does not reflect, that the trial court ordered these

economic consequences based on a rule or statute authorizing sanctions. Accordingly, the only

basis to order these consequences would be the trial court’s inherent authority to sanction.

“Recently, the Texas Supreme Court reaffirmed that ‘sanctions issued pursuant to a court’s

inherent powers are permissible . . . to deter, alleviate, and counteract bad-faith abuse of the

judicial process.’” In re Tex. Dep’t of Fam. & Protective Servs., No. 04-22-00014-CV, 2022 WL

2960224, at *7 (Tex. App.—San Antonio July 27, 2022, orig. proceeding) (mem. op.) (emphasis

- 10 -
 04-24-00016-CV

added) (quoting Brewer v. Lennox Hearth Prods., L.L.C., 601 S.W.3d 704, 708 (Tex. 2020)).

However, the inherent authority to sanction “is not boundless” and “is limited by due process.”

Brewer, 601 S.W.3d at 718. Accordingly, “invocation of the court’s inherent power to sanction

necessitates a finding of bad faith.” Id. “Bad faith is not just intentional conduct but intent to

engage in conduct for an impermissible reason, willful noncompliance, or willful ignorance of the

facts.” Id. at 718–19. “Bad faith includes conscious doing of a wrong for a dishonest,

discriminatory, or malicious purpose.” Id. at 719 (cleaned up).

C. Sanctions Provisions are Void

Here, neither sanction provision is based on such a finding. The December Order sanction

is invoked “for each day of school that [J.D.] misses without a showing that the inability to take

[J.D.] to school was unavoidable.” (emphasis added). The January Order sanction, invoked every

24 hours that the child is not in a licensed placement, is based on the court’s finding that the lack

of a licensed placement is a result of the Department’s neglect:

If the Department’s continued neglect to find licensed placement for this child is
going to leave him homeless on his 18th birthday, the child should at least have a
savings account funded by the Department, given its neglect.

But findings that inaction was “avoidable” or resulted from “neglect” do not demonstrate bad faith.

See Brewer, 601 S.W.3d at 719 (“Errors in judgment, lack of diligence, unreasonableness,

negligence, or even gross negligence—without more—do not equate to bad faith.” (emphasis

added)).

Further, these provisions are not authorized under the court’s inherent power to sanction

because they purport to address the Department’s performance as a managing conservator rather

than any “bad-faith abuse of the judicial process.” See id. at 708.

Accordingly, the sanctions provisions in the December Order and in paragraph 2.5 of the

January Order are void.

- 11 -
 04-24-00016-CV

DISCLOSURE OF HOME ADDRESSES

Next, we address the provision that orders the Department to disclose the home addresses

of some of its employees.

A. Challenged Provision

The January Order includes this provision:

2.3. On or before January 8, 2024 at 8:00 a.m. The Department is to provide the
home and business addresses for the following employees: Aseneth McCabe;
Natasha Bussey; Ana Garcia; Janissa Harris; Julian Apolinar; and Stephanie Mack.
This information is to be provided to all attorneys of record on this case as well as
general counsel for this court.

The Department asserts that the trial court abused its discretion by ordering the Department

to disclose this information without inquiring whether such information is prohibited from

disclosure under the Texas Public Information Act (the TPIA). 5

B. Public Information Exceptions

“[U]nder section 552.221 of the Texas Government Code, a ‘governmental body’ must

promptly produce ‘public information’ on request unless an exemption from disclosure applies

and is timely asserted.” Greater Hous. P’ship v. Paxton, 468 S.W.3d 51, 57 (Tex. 2015). But “the

[TPIA] itself provides numerous other exceptions to its disclosure requirement, which include,

among other things, certain personnel records.” Id. at 69 (Boyd, J., dissenting) (citing seven TPIA

subsections that create exceptions).

5
While the Department failed to assert in the trial court that the TPIA prohibited the Department from disclosing its
employees’ home addresses, the argument is not waived because the prospective release of information involves the
employees’ right to privacy—which the Department cannot waive. See Tex. Comptroller of Pub. Accts. v. Att’y Gen.
of Tex., 354 S.W.3d 336, 340 (Tex. 2010) (“[A]lthough a governmental body waives any exception to disclosure it
fails to raise before the attorney general, that rule is inapplicable when the exception involves the property or privacy
interests of another person.” (cleaned up)); Sherman v. U.S. Dep’t of Army, 244 F.3d 357, 364 (5th Cir. 2001)
(“[C]ircuit courts that have found that an agency waived its right to an exemption [under the FOIA] have done so only
where the government’s own interests in confidentiality, as opposed to the privacy interest of an individual, were at
stake.”).

- 12 -
 04-24-00016-CV

For example, section 552.024(a) prohibits disclosure of a state employee’s home address

if that employee has selected to restrict public access to that information, 6 and section

552.117(a)(16) prohibits disclosing the home address of a person that is or was a caseworker or

investigator for the Department. 7 Here, the record does not show whether the Department

employees at issue qualify for protection under either provision. But, if their home addresses are

protected under either of these provisions, the Department is prohibited from disclosing them.

Section 552.101’s language of “confidential by law, either constitutional, statutory,
or by judicial decision” refers to information that a governmental body may not
choose to release, and the improper disclosure of which results in criminal penalties
under the Act. Thus, when section 552.101 applies, the Act prohibits the
governmental body from disclosing the information.

Tex. Att’y Gen. ORD2002-676 (footnotes omitted).

Additionally, if disclosure of protected information violates a statute, an order compelling

that disclosure also violates the statute. 8

C. Disclosure Provision is an Abuse of Discretion

Because the trial court can only order the disclosure of non-protected information, it has

no discretion to order the Department to disclose the home addresses of the Department’s

employees without first determining whether those addresses are exempt from disclosure

(“Protected Addresses”).

6
See TEX. GOV’T CODE ANN. § 552.024(a) (“[E]ach employee or official of a governmental body and each former
employee or official of a governmental body shall choose whether to allow public access to the information in the
custody of the governmental body that relates to the person’s home address, home telephone number, emergency
contact information, or social security number, or that reveals whether the person has family members.”).
7
See TEX. GOV’T CODE ANN. § 552.117(a)(16) (“Information is excepted from the requirements of Section 552.021
if it is information that relates to the home address [of] a current or former child protective services caseworker, adult
protective services caseworker, or investigator for the Department of Family and Protective Services . . . .”).
8
In a non-TPIA case, the Dallas Court of Appeals has held that an order violated Texas Family Code section
231.108(e) when it commanded disclosure of information protected under that provision. See In re Off. of Att’y Gen.,
No. 05-19-00722-CV, 2019 WL 6606370, at *3 (Tex. App.—Dallas Dec. 5, 2019, orig. proceeding) (mem. op.)
(holding that “the trial court’s order requiring the OAG to provide the confidential information to Father violates the
statute” and “the trial court abused its discretion by ordering the OAG to disclose that which it is not authorized to
disclose”).

- 13 -
 04-24-00016-CV

While the Department also asserts that the TPIA fails to provide “any avenue which would

allow a trial court to determine what information is public and what must be released,” the trial

court is authorized to determine if the information at issue is protected from disclosure under the

TPIA. See, e.g., Tex. Dep’t of Pub. Safety v. Cox Tex. Newspapers, L.P., 343 S.W.3d 112, 118 (Tex.

2011) (remanding to trial court for determination of whether information is confidential under the

TPIA); Indus. Found. of the S. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 686 (Tex. 1976) (same).

Because the trial court failed to first determine whether the Department’s employees’ home

addresses were protected information, including paragraph 2.3 in its January Order was an abuse

of discretion.

AUTHORIZING PRIVATE INVESTIGATORS

Finally, we address the provision pertaining to authorizing private investigators to obtain

the Department’s employees’ home addresses so the employees may be served with process.

A. Challenged Provision

The January Order includes the following provision:

2.4. If the attorneys of record [d]o not receive the addresses as ordered in 2.3., they
are authorized to hire private investigators to [sic] the information. The Court’s
expectation is that enforcement will be served on those who need to be served and
sent with 10 day[s’] notice so a hearing for enforcement will be heard in this court.

B. Indirect Disclosure of Protected Information

Because the proof of service would be publicly filed in the underlying case, if any of the

home addresses at issue are protected from disclosure by the TPIA, this provision could lead to

the disclosure of protected information. See TEX. GOV’T CODE ANN. §§ 552.017(a)(16), .024(a);

Tex. Att’y Gen. ORD2002-676.

Further, if any of the employees’ home addresses are protected under the TPIA, obtaining

those addresses using private investigators does not change the protected status of the addresses.

- 14 -
 04-24-00016-CV

But whether information is nonpublic is determined by the terms of the statute. . . .
That a private third-party knows some information does not change whether the
information is nonpublic under the statute.

Villarreal v. City of Laredo, Tex., 94 F.4th 374, 388–89 (5th Cir. 2024).

C. Disclosure Provision is an Abuse of Discretion

Accordingly, as with paragraph 2.3 of the January Order, it was an abuse of discretion for

the trial court to include a provision in its order that could lead to the public disclosure of the

Department’s employees’ home addresses without first determining if any of those addresses are

protected from disclosure. See TEX. GOV’T CODE ANN. §§ 552.017(a)(16), .024(a); Tex. Att’y Gen.

ORD2002-676.

CONCLUSION

Our prior opinions and orders should have eliminated any confusion or question that

Respondent, Judge Mary Lou Alvarez, could have had regarding the limits of her authority to order

the Department to take certain actions—especially given that in sixteen of those decisions we held

that portions of Respondent’s orders exceeded her authority and were void. 9 In each decision we

9
See generally In re Tex. Dep’t of Fam. & Protective Servs., No. 04-23-00865-CV, 2024 WL 1289597 (Tex. App.—
San Antonio Mar. 27, 2024, orig. proceeding); In re Tex. Dep’t of Fam. & Protective Servs., No. 04-23-00382-CV,
2023 WL 5418313 (Tex. App.—San Antonio Aug. 23, 2023, orig. proceeding) (mem. op.); In re Tex. Dep’t of Fam.
& Protective Servs., No. 04-22-00341-CV, 2022 WL 6815172 (Tex. App.—San Antonio Oct. 12, 2022, orig.
proceeding) (mem. op.); In re Tex. Dep’t of Fam. & Protective Servs., 660 S.W.3d 248 (Tex. App.—San Antonio
2022, orig. proceeding) (Sep. 14, 2022); In re Tex. Dep’t of Fam. & Protective Servs., No. 04-22-00166-CV, 2022
WL 3372425 (Tex. App.—San Antonio Aug. 17, 2022, orig. proceeding) (mem. op.); In re Tex. Dep’t of Fam. &
Protective Servs., No. 04-22-00094-CV, 2022 WL 3219924 (Tex. App.—San Antonio Aug. 10, 2022, orig.
proceeding) (mem. op.); In re Tex. Dep’t of Fam. & Protective Servs., No. 04-22-00087-CV, 2022 WL 3219596 (Tex.
App.—San Antonio Aug. 10, 2022, orig. proceeding) (mem. op.); In re Tex. Dep’t of Fam. & Protective Servs., 660
S.W.3d 175 (Tex. App.—San Antonio 2022, orig. proceeding) (Aug. 3, 2022); In re Tex. Dep’t of Fam. & Protective
Servs., No. 04-22-00163-CV, 2022 WL 2821251 (Tex. App.—San Antonio July 20, 2022, orig. proceeding) (mem.
op.); In re Tex. Dep’t of Fam. & Protective Servs., No. 04-22-00085-CV, 2022 WL 2820937 (Tex. App.—San Antonio
July 20, 2022, orig. proceeding) (mem. op.); In re Tex. Dep’t of Fam. & Protective Servs., No. 04-22-00196-CV, 2022
WL 2442169 (Tex. App.—San Antonio July 6, 2022, orig. proceeding) (mem. op.); In re Tex. Dep’t of Fam. &
Protective Servs., No. 04-22-00091-CV, 2022 WL 2230720 (Tex. App.—San Antonio June 22, 2022, orig.
proceeding) (mem. op.); In re Tex. Dep’t of Fam. & Protective Servs., No. 04-22-00092-CV, 2022 WL 2230719 (Tex.
App.—San Antonio June 22, 2022, orig. proceeding) (mem. op.); In re Tex. Dep’t of Fam. & Protective Servs., No.
04-22-00096-CV, 2022 WL 2135572 (Tex. App.—San Antonio June 15, 2022, orig. proceeding) (mem. op.); In re

- 15 -
 04-24-00016-CV

explained in substantial detail how portions of her order exceeded her authority—especially with

respect to the Separation of Powers Clause.

Undeterred, Respondent has continued “to use the powers of [her] judicial office to

accomplish a purpose which [she] knew or should have known was beyond the legitimate exercise

of [her] authority.” See In re Ginsberg, 630 S.W.3d 1, 8 (Tex. Spec. Ct. Rev. 2018). Such actions

arguably amount to a “willful or persistent conduct that is clearly inconsistent with the proper

performance of [her] duties.” TEX. CONST. art. V, § 1–a(6)(A).

And, once again, in this original proceeding, we conclude that the trial court lacked any

authority to include the two challenged provisions in its December Order, and those provisions are

void.

We also conclude that the trial court lacked authority to include paragraphs 2.1, 2.5, or 2.6

in its January Order. Because these provisions were included without any authority—

constitutional, statutory, inherent, or otherwise—they are void.

Finally, because paragraph 2.3 of the January Order orders the disclosure of protected

information and paragraph 2.4 of the January Order could result in the disclosure of protected

information, including these provisions was an abuse of discretion.

We conditionally grant the petition for writ of mandamus. We lift our January 14, 2024

stay of the challenged provisions so that the trial court may vacate them. We direct the trial court

to, no later than ten days from the date of this opinion, vacate the two challenged provisions in its

December Order and paragraphs 2.1, 2.3, 2.4, 2.5, and 2.6 from its January Order. We temporarily

Tex. Dep’t of Fam. & Protective Servs., No. 04-22-00165-CV, 2022 WL 2135534 (Tex. App.—San Antonio June 15,
2022, orig. proceeding) (mem. op.); In re Tex. Dep’t of Fam. & Protective Servs., 660 S.W.3d 161 (Tex. App.—San
Antonio 2022, orig. proceeding) (June 1, 2022); In re Tex. Dep’t of Fam. & Protective Servs., No. 04-22-00226-CV,
2022 WL 1751013 (Tex. App.—San Antonio June 1, 2022, orig. proceeding). Each of these opinions were issued
prior to the orders complained of in this original proceeding, and five of these decisions involved the same underlying
case. See supra, note 2.

- 16 -
 04-24-00016-CV

lift our stay dated April 11, 2024, issued in the related original proceeding No. 04-24-00219-CV,

for the sole purpose of allowing the trial court to vacate these provisions. The trial court is not

authorized to take any other action in the underlying matter. The writ of mandamus will issue only

if the trial court fails to comply within ten days of the date of this opinion and order.

Patricia O. Alvarez, Justice

- 17 -