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

Fourth Court of Appeals
San Antonio, Texas
April 24, 2024

No. 04-24-00016-CV

IN RE THE TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES

Original Proceeding 1

ORDER

On January 9, 2024, the Texas Department of Family and Protective Services (the
“Department”) filed a petition for a writ of mandamus and a motion for temporary relief, asserting
that the trial court abused its discretion by issuing orders that violated Texas law and the Separation
of Powers Clause of the Texas Constitution. On January 16, 2024, we issued an order requesting
a response, 2 granting the Department’s motion for temporary relief in part, and staying the
challenged orders pending consideration of the mandamus petition.

After considering the petition, the motion, and the record before us, we find that the trial
court lacked any authority to issue the following orders, rendered during the permanency hearing
on December 1, 2023, and issued in written form on December 6, 2023.

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.

We also find that the trial court lacked any authority to issue the following orders, rendered
in open court during the permanency hearing after final order on January 4, 2024, and issued in a
written order on January 9, 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

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.
2
Neither Respondent nor Real Party in Interest filed a response brief.
 04-24-00016-CV

record shall be invited to participate. The staffings are to continue
daily, seven days a week, until the child is in a licensed placement.

2.3. 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 to [sic] not receive the addresses as
ordered in 2.3., they are authorized to hire private investigators to
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 [sic]
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.

Because these orders were issued without authority—constitutional, statutory, inherent, or
otherwise—they are void.

Accordingly, we conditionally GRANT the petition for writ of mandamus and direct the
trial court to, no later than ten days from the date of this opinion, vacate the above-quoted orders.
We also temporarily 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 order.

It is so ORDERED on April 24, 2024.

_____________________________
Patricia O. Alvarez, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 24th day of April, 2024.

_____________________________
Luz Estrada, Chief Deputy Clerk

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