In Re Texas Department of Family & Protective Services
348 S.W.3d 492
Tex. App.2011Background
- TDFPS petitioned for writ of mandamus to vacate a June 10, 2011 monitored-return order and to issue a ruling by date in the termination trial of the parent‑child relationship involving M.P.
- TDFPS previously obtained a temporary managing conservatorship and ordered monitored returns dating back to September 9, 2010, with subsequent dismissal dates set for February 12, 2011, then May 15, 2011.
- November 30, 2010, a monitored return disruption order was entered, renewing the dismissal timeline.
- The final termination bench trial began May 9, 2011, with closing arguments May 11, 2011; the court reserved ruling.
- On May 20, 2011, the associate judge ordered a monitored return in the middle of the final hearing and proposed reopening evidence after the return; the May 15, 2011 dismissal date passed.
- On June 10, 2011, the associate judge adopted the monitored return order; the county court adopted it with an emergency stay, prompting the mandamus petition.
- The issue presented involves whether the monitored return order issued after the dismissal date was permissible under Family Code §263.403 and whether mandamus relief is appropriate to obtain a final judgment rather than an interlocutory order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the June 10, 2011 monitored return violated §263.403 timing | TDFPS: order after dismissal date was illegal | Real parties: time rules permit post‑dismissal monitoring if trial begun | Monitored return after the dismissal date was an abuse of discretion |
| Whether the associate judge abused discretion by not rendering a final judgment | TDFPS contends failure to rule was error | County court adopted monitor return and trial ongoing; judgment pending re-opening evidence | Issue subsumed; mandamus limited; no final judgment rendered yet; remains ripe for judgment after vacating monitor return |
| Whether mandamus is proper to compel vacating the monitored return | TDFPS seeks mandamus to vacate and finalize judgment | Remedied by ordinary appeal; interlocutory nature of order | Conditionally granted mandamus to vacate monitor return; case ripe for final judgment |
| Whether the court had jurisdiction to issue mandamus against associate judge | TDFPS seeks control over associate judge's order | Mandamus jurisdiction over associate judge not available | Dismiss claims against associate judge; jurisdiction limited to county court |
Key Cases Cited
- In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) (clear abuse of discretion requires remedy by mandamus when no adequate remedy by appeal)
- Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (trial court has no discretion in determining the law or applying it to facts)
- In re J.W.M., 153 S.W.3d 541 (Tex. App.—Amarillo 2004) (section 263.403 governs monitored returns and dismissal dates)
- Wichita Cnty. v. Hart, 917 S.W.2d 779 (Tex. 1996) (‘shall’ denotes mandatory timing in statute)
- Axelson, Inc. v. McIlhany, 798 S.W.2d 550 (Tex. 1990) (mandamus relief requires predicate action and refusal)