in Re Texas Department of Family and Protective Services

Opinion issued October 11, 2013.
In The
Court of Appeals
For The
First District of Texas
NO. 01-13-00623-CV
IN RE TEXAS DEPARTMENT OF FAMILY
AND PROTECTIVE SERVICES, RELATOR
Original Proceeding on Petition for Writ of Mandamus
OPINION
In this mandamus proceeding, the Texas Department of Family and
Protective Services (the Department) seeks relief from a sanctions order entered
against it. The trial court issued the order in the underlying conservatorship
proceeding involving D.D.E., a child and the real party in interest.1 The
Department’s conduct at issue, however, relates to trial court proceedings in
another matter—a juvenile-justice case brought against D.D.E., in which the state
alleged that D.D.E. had engaged in delinquent conduct. 2 The conduct arose before
the Department filed this suit.
We hold that the trial court’s sanctions order is void, because the trial court
lacked personal jurisdiction over the Department in the juvenile-justice case, and
the trial court’s plenary power had expired in that case before the court issued its
sanctions order in the conservatorship case. Accordingly, we conditionally grant
mandamus relief and deny the child’s motion to dismiss the Department’s petition.
Background
The juvenile court proceedings
The State, through the Harris County District Attorney, brought suit in
juvenile-justice court against D.D.E., alleging that he had engaged in deadly
1
The underlying case is In re D.D.E., No. 2012-04583-J, in the 314th District
Court of Harris County, Texas, the Honorable John Phillips, presiding.
2
The related juvenile justice proceeding is In re D.D.E., No. 2012-03968-J, in
the 314th District Court of Harris County, Texas, the Honorable John
Phillips, presiding.
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conduct. His mother, who has an extensive DFPS case history, was the
complainant.
The child appeared for his first hearing accompanied by his mother and five
siblings. William Connolly, the child’s defense attorney, noticed that the
juvenile’s mother appeared to be impaired to the point that she could not speak
intelligibly. Connolly ascertained that the mother had driven the child and his five
sisters to court that day and planned to drive the children home after the hearing.
Alarmed, Connolly brought these circumstances to the trial court’s attention. He
also sought the assistance of the Department’s court liaison, Debra Reyna. As a
liaison, Reyna works at the courthouse, helping to facilitate communications with
Department employees in the field and keeping the Department staff informed
about court matters, as well as assisting with matters in which the Department
appears before the courts.
Connolly asked Reyna to intervene on an emergency basis and take custody
of his client before his mother drove them home in an impaired state. Reyna spoke
with Connolly about the situation and went into the courtroom, where she saw the
mother and her children. Reyna, who did not have the authority to effect the
removal herself, contacted the Department and learned that it had an open
investigative file relating to the family. Reyna next contacted Terri Halsey, the
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supervisor assigned to the family’s case. After speaking with Halsey, Reyna
informed Connolly and the court that the Department’s files revealed that the
mother had psychiatric and drug issues as well as an extensive history with the
Department. Reyna also reported that Halsey stated she would not pick up a child
without a court order. The Department did not take any action on the case that
day, and the children left the courthouse in their mother’s custody.
That evening, Connolly texted Reyna and Halsey to inform them that he
planned to return to the juvenile justice court the next day to request an order to
remove the child from his mother’s custody. The next day, July 26, 2012, Reyna
was in the courtroom when Connolly presented the trial court with a proposed
order for emergency removal in Cause No. 2012-03968-J, which the court signed.
The order declared:
It is ORDERED that [the Department] take immediate custody of the
child. . . and file additional pleadings and paperwork to facilitate its
authority to request appointment of [the Department] as Temporary
Managing Conservator of the child as in ordinary cases involving [the
Department].
The trial court also signed an order authorizing Connolly to hire Lisa
McCartney, an expert in child abuse and neglect, as an independent expert to assist
him in his defense of the minor child in the juvenile proceedings. The trial court
ordered that any agency that received a request for information from McCartney
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related to investigations of abuse or neglect, family violence, mental health history,
family history, parental history, step-parent history, or the child’s history must
produce such information, within four hours of the request, without delay for
redaction.
Reyna received a copy of the emergency removal order and immediately
informed Halsey and the assigned caseworker, Sheryl Ross, of the order. The
Department, however, did not take custody of D.D.E. that evening.
Instead, the next day, July 27, the Department filed petitions in suits
affecting the parent child relationship (SAPCR), requesting that D.D.E. and his
siblings be removed from their mother’s custody and that the court order
placement of the children into state conservatorship. The Department effected the
removal of the children from the mother on the same date. The petition to take
temporary conservatorship of D.D.E. landed in the same trial court as his pending
juvenile justice case, while the case involving his siblings was assigned to another
court.
The Department’s Regional Director, Scott Dixon, learned of the second
order regarding the production of records on August 1, 2012, when the Department
received a records request. Dixon directed Department employees to comply with
the order. The Department provided McCartney with the records, in installments,
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on August 1, 6, 14, 22, and 25. Connolly and McCartney used the information in
those records to defend D.D.E. in the juvenile justice case. On September 24,
citing insufficient evidence and “the CPS records,” the State nonsuited its juvenile
justice case against D.D.E.
The SAPCR court proceedings
A month before the State nonsuited its juvenile justice case, Connolly
moved for sanctions against the Department in the pending SAPCR suit related to
D.D.E. He requested that the trial court issue a show cause order, requiring the
Department to show cause why it should not be held in contempt of court for
violating the trial court’s two orders entered in the juvenile justice case by (1) not
taking immediate possession of D.D.E. on July 26 and (2) delaying the production
of some Department records. The Department responded that it was not a party to
the juvenile justice proceeding, and the trial court had no jurisdiction to enforce the
orders that it had issued by sanctions or contempt proceedings against the
Department.
Eight months after the conclusion of the juvenile justice case, the trial court
held a three-day evidentiary sanctions hearing in the SAPCR suit, in which a
number of Department witnesses were subpoenaed and testified. At the conclusion
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of the hearing, the trial court ruled against the Department in an order signed on
May 21, 2013, in which it found:
• The trial court and the Department were aware of an immediate
danger to the physical health and/or safety of the child and his
siblings on July 25, 2012.
• To ensure the child’s safety, the trial court issued an emergency
order directing the Department to take immediate possession of the
child.
• The Department did not take immediate possession of the child.
• The Department’s failure to comply with the court’s orders relating
to the court’s management and administration of its cases
interfered with the court’s exercise of its jurisdiction, the
administration of justice, and the preservation of the independence
and integrity of the court.
• The Department knowingly and willfully ignored a court order to
take the child [into custody] for approximately 48 hours.
The order also contains the following conclusions of law:
• Section 262.104 of the Family Code allows an authorized
representative of the Department, a law enforcement officer, or a
juvenile probation officer, to take possession of a child without a
court order if they have “personal knowledge of facts that would
lead a person of ordinary prudence and caution to believe that there
is an immediate danger to the physical health or safety of the
child.”
• Under its inherent powers, a court has “all powers necessary for
the exercise of its jurisdiction and the enforcement of its lawful
orders, including the authority to issue the writs and orders
necessary or proper in aid of its jurisdiction.” Tex. Gov’t Code
§ 21.001.
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The trial court ordered the Department be fined $20,000 for “the two days”
that the Department “willfully and wantonly disregarded” its order to take
possession of the child. It further ordered the Department to reimburse Connolly
for his time incurred in prosecuting the motion for sanctions and contempt, in the
amount of $11,108.33, as well as attorney’s fees on appeal of $30,000, and
McCartney’s expert’s fees, in the amount of $3,171.98.
In addition, the trial court ordered the Department to “present the Court with
a copy of the written procedures it has established to ensure that, in an emergency
situation such as the one that occurred in this case, the Department will take
immediate possession of a child,” and to provide a list with the names and phone
numbers of Department employees who are authorized to take immediate
possession of a child.
The Department asked the trial court to reconsider its order; the trial court
refused.
Discussion
“Mandamus is 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) (per
curiam); In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998) (orig. proceeding). A
void order is one that is beyond the power of the court to enter; error alone is not
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enough. Zep Mfg. Co. v. Anthony, 752 S.W.2d 687, 689 (Tex. App.—Houston [1st
Dist.] 1988, orig. proceeding). A relator must show that the court had no
jurisdiction over the parties or property, no jurisdiction over the subject matter, no
jurisdiction to enter the particular judgment, or no capacity to act as a court.
Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985).
As an initial matter, the child requests that we dismiss the Department’s
petition, urging that the trial court did not ultimately hold the Department directly
in contempt and that the Department has an adequate remedy by appeal to
challenge the order assessing sanctions. Because the Department seeks mandamus
relief on the ground that the May 2013 order is void, we reject the child’s request
for dismissal of the petition. Whether trial court’s order primarily aims to sanction
the Department or hold it in contempt, the court must have jurisdiction to enter the
order in the first place: if the trial court’s order is void, mandamus relief is
available even when the relator has an adequate remedy by appeal. Sw. Bell Tel.
Co., 35 S.W.3d at 605; In re Vlasak, 141 S.W.3d 233, 235 (Tex. App.—San
Antonio 2004, orig. proceeding). Further, “[a] trial court that holds a party in
contempt for violating a void order necessarily abuses its discretion.” In re
Corcoran, 343 S.W.3d 268, 269 (Tex. App.—Houston [14th Dist.] 2011, orig.
proceeding). By analogy, the same holds true in the context of trial court
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sanctions. Mandamus relief is available to protect a litigant from the enforcement
of a void order. See Sw. Bell Tel. Co., 35 S.W.3d at 605. Because it is
unenforceable, a trial court lacks the authority to sanction a party based upon a
violation of a void order. See id.
Personal jurisdiction
The Department contends that the trial court’s sanctions order is void
because it is predicated on the Department’s violations of orders that the trial court
entered in the juvenile justice case, in which the Department did not appear as a
party. A trial court does not have jurisdiction to enter an order or judgment against
a person unless the record shows proper service of citation on that person, an
appearance by the person, or a written memorandum of waiver of appearance on or
before the date of entry of the order. In re Suarez, 261 S.W.3d 880, 882–83 (Tex.
App.—Dallas 2008, orig. proceeding); see In re E.R., 385 S.W.3d 552, 563 (Tex.
2012) (“Personal jurisdiction, a vital component of a valid judgment, is dependent
‘upon citation issued and served in a manner provided for by law.’”) (quoting
Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990)); see also Tex. Natural Res.
Conserv. Comm’n v. Sierra Club, 70 S.W.3d 809, 813 (Tex. 2002) (explaining that
citation differs from mere notice; “notice is much less formal”) (citing Perez v.
Perez, 59 Tex. 322, 324 (1883)); see generally TEX. R. CIV. P. 2, 21, 21a, 103–
10
109a. To constitute an answer or appearance, one must seek judgment or
adjudication on some question; although an act may relate to a pending case, “it
does not constitute a general appearance if it in no way recognizes that the cause is
properly pending or that the court has jurisdiction, and no affirmative action is
sought from the court.” Invs. Diversified Servs., Inc. v. Bruner, 366 S.W.2d 810,
815 (Tex. Civ. App.—Houston 1963, writ ref’d n.r.e.), quoted in Dawson-Austin v.
Austin, 968 S.W.2d 319, 322 (Tex. 1998). “The emphasis is on a request for
affirmative action, which impliedly recognizes the court’s jurisdiction over the
parties, since the mere presence of a party or his attorney in the courtroom at the
time of a hearing or a trial, where neither participates in the prosecution or defense
of the action, is not an appearance.” Seals v. Upper Trinity Reg’l Water Dist., 145
S.W.3d 291, 297 (Tex. App.—Fort Worth 2004, pet. dism’d).
No pleadings in the juvenile justice proceeding named the Department as a
party to the juvenile proceeding, nor does the record reveal any return of citation or
written waiver of citation by the Department connoting an appearance. Nothing in
the record supports a finding that the Department made a general appearance in the
juvenile case.
The child responds that Reyna, a non-lawyer who was the Department’s
court liaison, reported her efforts within the Department to remove the child from
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the mother’s custody to the trial court. He argues that such efforts constitute a
legal appearance on the Department’s behalf. Reyna’s testimony shows that she
cooperated with Connolly’s effort and tried to help the Department comply with
the trial court’s requests, but we reject the contention that her assistance constitutes
an appearance through intervention in the pending juvenile justice suit.
To the contrary, the record shows in several places that it was D.D.E.’s
counsel that sought the orders from the trial court for the immediate removal of the
child; counsel directly acknowledged as much in the sanctions proceedings. The
Department did not appear in the juvenile justice proceedings, nor did it ask for
affirmative relief from the trial court. Instead, the Department filed its own
SAPCR petition seeking removal of the child the next day. We hold that the trial
court lacked personal jurisdiction over the Department in the juvenile case; thus, its
orders compelling the Department to act in that case are void.
Subject matter jurisdiction
The Department further challenges that the trial court lacked subject-matter
jurisdiction to enter the sanctions order, because the court’s plenary power had
long-expired in the juvenile justice case. We agree. “The jurisdiction of all Texas
courts . . . derives from the Texas Constitution and state statutes. Absent an express
constitutional or statutory grant, we lack jurisdiction to decide any case.” In re
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Allcat Claims Serv., L.P., 356 S.W.3d 455, 460 (Tex. 2011) (citing Chenault v.
Phillips, 914 S.W.2d 140, 141 (Tex. 1996) (per curiam)). Judicial action taken
after the trial court’s plenary power has expired is void. Sw. Bell Tel. Co., 35
S.W.3d at 605; State ex. rel Latty v. Owens, 907 S.W.2d 484, 486 (Tex.1995); see
also Scott & White Mem’l Hosp. v. Schexnider, 940 S.W.2d 594, 596 n.2
(Tex.1996) (declaring that court cannot issue sanctions order after its plenary
power has expired); Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990)
(defining a void judgment as one rendered when a court has no jurisdiction over
the parties or subject matter, no jurisdiction to render judgment, or no capacity to
act as a court).
The trial court’s invocation of its inherent powers does not confer
jurisdiction where none exists in the first instance. The trial court’s order invokes
section 21.001 of the Government Code, which explains that “[a] court has all
powers necessary for the exercise of its jurisdiction and the enforcement of its
lawful orders, including authority to issue the writs and orders necessary or proper
in aid of its jurisdiction.” TEX. GOV’T CODE ANN. § 21.001(a); Public Util.
Comm’n v. Cofer, 754 S.W.2d 121, 124 (Tex.1988).
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A trial court has inherent power to sanction bad faith conduct during the
course of litigation that interferes with administration of justice or the preservation
of the court’s dignity and integrity. Onwuteaka v. Gill, 908 S.W.2d 276, 280 (Tex.
App.—Houston [1st Dist.] 1995, no writ); Metzger v. Sebek, 892 S.W.2d 20, 51
(Tex. App.—Houston [1st Dist.] 1994, writ denied); see Eichelberger v.
Eichelberger, 582 S.W.2d 395, 399 (Tex. 1979). The power may be exercised to
the extent necessary to deter, alleviate, and counteract bad faith abuse of the
judicial process, such as any significant interference with the traditional core
functions of the court. See Lawrence v. Kohl, 853 S.W.2d 697, 700 (Tex. App.—
Houston [1st Dist.] 1993, no writ). These core functions include hearing evidence,
deciding issues of fact raised by the pleadings, deciding questions of law,
rendering final judgments, and enforcing judgments. See Dallas Cnty. Constable
Pct. 5 v. KingVision Pay-Per-View, Ltd., 219 S.W.3d 602, 610 (Tex. App.—Dallas
2007, no pet.).
The inherent power to sanction, however, has limits. Gill, 908 S.W.2d at
280. Because inherent power is “shielded from direct democratic controls, [it]
must be exercised with restraint and discretion.’” Shepherd v. Am. Broad. Cos., 62
F.3d 1469, 1475 (D.C. Cir. 1995), quoted in Crowe v. Smith, 151 F.3d 217, 226
(5th Cir. 1998) (internal quotation omitted). Inherent power exists only to the
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extent necessary to deter, alleviate, and counteract bad faith abuse of the judicial
process, such as significant interference with the core judicial functions of Texas
courts. See Lawrence, 853 S.W.2d at 699–700.
Pertinent to this proceeding, a court’s inherent judicial power does not
confer jurisdiction where none pre-exists by statutory or constitutional grant.
Eichelberger, 582 S.W.2d at 398 (“Under our system there is no such thing as the
inherent power of a court, `if, by that, be meant a power which a court may
exercise without a law authorizing it’” (quoting Messner v. Giddings, 65 Tex. 301,
309 (1886)).
Inherent power is not a substitute for plenary power. See Lane Bank Equip.
Co. v. Smith So. Equip., 10 S.W.3d 308, 311 (Tex. 2000) (citing Hjarlmarson v.
Langley, 840 S.W.2d 153, 155 (Tex. App.—Waco 1992, orig. proceeding)).
Consequently, a court cannot rely on its inherent power to issue sanctions after its
plenary power has expired. Scott & White Mem’l Hosp., 940 S.W.2d at 596 & n.2.
Thus, the trial court could not use the SAPCR proceeding as a vehicle to revive its
authority to sanction the Department for its conduct in response to the trial court’s
orders in the juvenile justice case.
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Conclusion
We hold that the trial court’s May 21, 2013 order is void for lack of personal
and subject-matter jurisdiction. We conditionally grant the Department’s petition
for writ of mandamus and direct the trial court to vacate its order. The writ will
issue only if the trial court fails to comply. All pending motions are dismissed as
moot.
Jane Bland
Justice
Panel consists of Justices Bland and Huddle and Judge Kerrigan. 3
3
The Honorable Patricia J. Kerrigan, 190th District Court, Harris County,
Texas, sitting by assignment.
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