In re Texas Department of Protective & Regulatory Services

990 S.W.2d 848, 1999 Tex. App. LEXIS 2396, 1999 WL 180756
CourtCourt of Appeals of Texas
DecidedMarch 31, 1999
DocketNo. 07-99-0036-CV
StatusPublished
Cited by7 cases

This text of 990 S.W.2d 848 (In re Texas Department of Protective & Regulatory Services) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Texas Department of Protective & Regulatory Services, 990 S.W.2d 848, 1999 Tex. App. LEXIS 2396, 1999 WL 180756 (Tex. Ct. App. 1999).

Opinion

PER CURIAM.

In this proceeding, the Department of Protective and Regulatory Services (the Department) seeks a writ of mandamus directing respondent, the Honorable David L. Gleason, presiding judge of the 47th District Court of Armstrong County, to vacate or rescind his January 15, 1999 and February 23, 1999 orders ordering it to pay certain attorney ad litem fees and to issue an' order consistent with section 107.015 of the Family Code. For the reasons set forth below, we conditionally grant the Department’s petition.

In the -underlying suit, the Department alleged that Susan Voyles physically neglected her daughter and that Stanley Voyles lives apart from his wife and daughter. Thus, it sought to terminate both their parental rights. On October 16, 1998, the Department was appointed temporary sole managing conservator of the child. The trial court appointed an attorney and guardian ad litem to represent the child and an attorney ad litem to represent the father. Then on two separate occasions, respondent verbally ordered the Department to pay interim attorney ad litem fees. When the Department did not comply, respondent entered a written order on January 15, 1999, requiring the Department to pay $2,200 to the attorney representing the child and $2,200 to the attorney representing the indigent parent. On February 23, 1999, respondent entered another written order requiring the Department to pay each attorney an additional $100 for services rendered in a review hearing. The Department has filed this proceeding challenging respondent’s authority to enter such orders.

It is the rule that a writ of mandamus will only issue to correct a clear abuse of discretion or a violation of a duty imposed by law where there is no other remedy by law. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985). It is also the rule that a trial court has no “discretion” in determining what the law is or in applying the law to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). Thus, if a trial court fails to correctly analyze or apply the law, it has abused its discretion. Id.

In determining whether there is an adequate remedy at law, we must bear [850]*850in mind that most trial errors can be corrected in a normal appeal and that mandamus will only issue in the unusual circumstance in which there is no such adequate remedy. Id. Normally, interlocutory rulings made by a trial court during the ordinary trial process may be adequately addressed upon appeal. Bell Helicopter Textron, Inc. v. Walker, 787 S.W.2d 954, 955 (Tex.1990); Ewing v. Cohen, 63 Tex. 482, 484-85 (1885). However, when a trial court’s ruling has the effect of adjudicating a dispute and does not concern incidental matters, it may properly be reviewed in a mandamus proceeding. Wallace v. Briggs, 162 Tex. 485, 348 S.W.2d 523, 527 (1961); Aldine Indep. School Dist. v. Moore, 694 S.W.2d 454, 455 (Tex.App. — Houston [1st Dist.] 1985, no writ).

In this proceeding, the Department asserts the trial court violated section 107.015 of the Family Code in attempting to make it pay the attorney ad litem fees and, in doing so, improperly applied the law to the facts, thereby entitling it to mandamus. Additionally, the Department maintains it does not have an adequate remedy at law because the order is interlocutory, it adjudicates a part of the dispute and, under section 51.014 of the Civil Practice and Remedies Code, the orders cannot be appealed until all of the remaining issues in the underlying case are determined.

Although respondent did not file a response, an amicus curiae brief has been filed in his behalf and we will refer to the contentions advanced in that brief as being those of respondent. Respondent argues that inasmuch as the Department is a party to the litigation, under section 107.015(b) of the Family Code, he was entitled to order it to pay the fees. He also argues that the Department had other adequate remedies at law, such as filing a motion for rehearing, a motion to set aside the judgment, or a motion to vacate the court’s order. Although he acknowledges the Department filed an objection to the trial court’s ruling and requested the entry of a judgment which would conform with section 107.015, he contends that because it was merely an objection, it was inadequate to exhaust the other remedies available to him.

It has been the law for many years that when an attorney has been appointed to represent a child or parent in family law matters, the parents of the child are obligated to pay reasonable ad litem fees set by the court unless the parents are indigent. See Tex.Fam.Code Ann. § 107.015(a) (Vernon 1996);1 In re A.B.B., 785 S.W.2d 828, 831 (Tex.App. — Amarillo 1990, no writ). For nearly as many years, if the parents were determined to be indigent, the attorney ad litem fees were to be paid from the general funds of the county in which the suit was heard. See Tex. Fam.Code Ann. § 107.015(c) (Vernon 1996).2 More recently, the Legislature added section 107.015(b), which provides:

If the court or associate judge determines that the parties or litigants are able to defray the costs of an ad litem’s compensation as determined by the reasonable and customary fees for similar services in the county of jurisdiction, the [851]*851costs may be ordered paid by either or both parties, or the court or associate judge may order either or both parties, prior to final hearing, to pay the sums into the registry of the court or into an account authorized by the court for the use and benefit of the ad litem on order of the court. The sums may be taxed as costs to be assessed against one or more of the parties.

Tex.Fam.Code Ann. § 107.015(b) (Vernon 1996).3

As authority for entering the orders requiring the Department to pay the ad li-tem fees, respondent focuses on the language contained in subsection (b) allowing the court to order the fees to be paid by either or both parties it deems able to defray those costs. The plain language of the subsection, he argues, allows the court to assess the fees against any named party in the litigation. Thus, he reasons, because the Department is a party or litigant to the underlying suit, and is certainly able to pay the ad litem fees, the trial court has discretion to assess those fees against the Department.

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990 S.W.2d 848, 1999 Tex. App. LEXIS 2396, 1999 WL 180756, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-texas-department-of-protective-regulatory-services-texapp-1999.