in Re Kimberly Marks
01-15-00087-CV
| Tex. App. | Mar 19, 2015Background
- Relator Kimberly Marks sought mandamus relief challenging a trial-court order requiring her to participate in services (drug testing) under Tex. Fam. Code § 264.203 after a January 27, 2015 hearing in Harris County (Cause No. 2013-73339).
- The Department of Family & Protective Services filed an "Original Motion to Modify and Petition for Order to Participate in Services" on January 9, 2015 that expressly incorporated an attached affidavit; both the petition and affidavit were filed with the district clerk.
- At the January 27 hearing Marks (represented by counsel) contested the petition but did not object that she had not been served the affidavit; parties and the court referenced facts from the affidavit during the hearing and counsel offered factual statements without contemporaneous objection.
- Marks filed a pro se mandamus petition the same day and later, through counsel, objected for the first time on appeal to the affidavit (claiming it had not been served or offered into evidence) and asserted future need for mandamus because she had a counterclaim under Chapter 105 seeking damages.
- The Department non-suited its suit on February 17, 2015; the appellate court noted it read the Department’s mandamus record and suggested there may no longer be a live controversy and requested further briefing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of objection to affidavit | Marks: affidavit was not served, presented, or admitted; she learned of it only when filed with the appellate court | Dept: Marks never objected at or before the trial hearing; Rule 33.1 requires trial objection; late appellate objection is meritless | Dept urges appellate court to reject late objection as forfeited and frivolous |
| Admissibility of attorney statements and affidavit use at hearing | Marks: affidavit was not admitted as evidence | Dept: affidavit and attorney factual statements were referenced at hearing; failure to object waives challenge; attorney statements can be evidence if unobjected | Dept contends the affidavit and attorney statements were properly considered and not objected to at trial |
| Mootness of mandamus claim after non-suit | Marks: seeks declaratory relief and contends potential future orders justify review; also asserts Chapter 105 damages claim | Dept: non-suit eliminated the live controversy; any declaratory relief would be advisory and not fit exceptions; Chapter 105 provides an adequate remedy at law | Dept argues mandamus is moot and extraordinary relief is inappropriate; appellate court indicated the controversy may be moot |
| Availability of mandamus vs. ordinary remedies | Marks: seeks proactive relief to prohibit future orders (invoking "capable of repetition, yet evading review") | Dept: relator can pursue Chapter 105 damages and ordinary appellate remedies; no showing that same action will recur | Dept argues mandamus is unnecessary because adequate remedies exist and relator cannot satisfy the repetition exception |
Key Cases Cited
- Banda v. Garcia, 955 S.W.2d 270 (Tex. 1997) (attorney's unsworn statements can be evidence if unobjected)
- Wheeler v. Green, 157 S.W.3d 439 (Tex. 2005) (same principle regarding attorney statements as evidence)
- Mathis v. Lockwood, 166 S.W.3d 743 (Tex. 2006) (failure to object to counsel's factual testimony may constitute waiver of oath requirement)
- Heckman v. Williamson County, 369 S.W.3d 137 (Tex. 2012) (case becomes moot when no justiciable controversy remains)
- Williams v. Lara, 52 S.W.3d 171 (Tex. 2000) (exception for issues capable of repetition yet evading review requires reasonable expectation of recurrence)
- In re Ford Motor Co., 442 S.W.3d 265 (Tex. 2014) (mandamus relief is extraordinary and requires absence of adequate appellate remedy)
- Nat'l Collegiate Athletic Ass'n v. Jones, 1 S.W.3d 83 (Tex. 1999) (courts should not issue advisory opinions)