Fourth Court of Appeals San Antonio, Texas
OPINION No. 04-23-00594-CV
IN RE THE TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES
Original Mandamus Proceeding 1
Opinion by: Patricia O. Alvarez, Justice
Sitting: Patricia O. Alvarez, Justice Liza A. Rodriguez, Justice Lori I. Valenzuela, Justice
Delivered and Filed: October 11, 2023
PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED
In the underlying dispute, the Department of Family and Protective Services is the
permanent managing conservator of four children. After an associate judge rendered a permanency
order for the children, the Department sought de novo review before the referring trial court, the
Honorable Mary Lou Alvarez (trial court). The trial court held a hearing; it affirmed the order’s
provisions that require the Department to pay a specific caregiver monthly financial assistance at
a specific rate for an extended period. The Department filed a petition for writ of mandamus and
an emergency motion to stay the trial court’s order. We granted the emergency motion and stayed
the order. Now, we conditionally grant the petition to rectify the order’s void provisions.
1 This proceeding arises out of Cause No. 2020-PA-01747, styled In the Interest of Z.C., Z.T., Z.T., J.C., Children, pending in the 45th Judicial District Court, Bexar County, Texas, the Honorable Mary Lou Alvarez presiding. 04-23-00594-CV
BACKGROUND
In this petition for writ of mandamus, the Department complains that the trial court has
again violated the Separation of Powers Clause by ordering the Department to expend funds in a
particular manner. 2 The facts differ somewhat from previous Department cases before the same
trial court, but this trial court has again ruled “contrary to clear and determined law about which
there is no confusion or question as to its interpretation.” See In re Ginsberg, 630 S.W.3d 1, 8
(Tex. Spec. Ct. Rev. 2018) (quoting In re Barr, 13 S.W.3d 525, 545 (Tex. Rev. Trib. 1998)).
In this case, the Department is the permanent managing conservator of Z.C., Z.T., Z.T.,
J.C. In September 2020, the Department placed the children with their maternal great-aunt S.C.,
who has been their caregiver ever since. In January 2023, a permanency hearing was held in the
underlying case before an associate judge, the Honorable Charles Montemayor, who ordered the
Department to do the following:
[T]he Department must continue paying kinship funds to the children’s placement and those payments will continue to new relative placements if the children are moved to a new family placement. Payments are to continue until licensing of the placement occurs. The Department is to take funds from other sources if federal kinship funds are exhausted.
Asserting the order violated applicable statutes and exceeded judicial authority, the
Department sought de novo review before the referring court. On March 10, 2023, the trial court
2 See generally In re Tex. Dep’t of Family & Protective Servs., 660 S.W.3d 161 (Tex. App.—San Antonio 2022, orig. proceeding); In re Tex. Dep’t of Family & Protective Servs., 660 S.W.3d 248 (Tex. App.—San Antonio 2022, orig. proceeding); In re Tex. Dep’t of Family & Protective Servs., No. 04-22-00085-CV, 2022 WL 2820937 (Tex. App.— San Antonio July 20, 2022, orig. proceeding) (mem. op.); In re Tex. Dep’t of Family & Protective Servs., No. 04-22- 00087-CV, 2022 WL 3219596 (Tex. App.—San Antonio Aug. 10, 2022, orig. proceeding) (mem. op.); In re Tex. Dep’t of Family & Protective Servs., No. 04-22-00091-CV, 2022 WL 2230720 (Tex. App.—San Antonio June 22, 2022, orig. proceeding) (mem. op.); In re Tex. Dep’t of Family & Protective Servs., No. 04-22-00092-CV, 2022 WL 2230719 (Tex. App.—San Antonio June 22, 2022, orig. proceeding) (mem. op.); In re Tex. Dep’t of Family & Protective Servs., No. 04-22-00094-CV, 2022 WL 3219924 (Tex. App.—San Antonio Aug. 10, 2022, orig. proceeding) (mem. op.); In re Tex. Dep’t of Family & Protective Servs., No. 04-22-00165-CV, 2022 WL 2135534 (Tex. App.—San Antonio June 15, 2022, orig. proceeding) (mem. op.); In re Tex. Dep’t of Family & Protective Servs., No. 04-22-00166-CV, 2022 WL 3372425 (Tex. App.—San Antonio June 15, 2022, orig. proceeding) (mem. op.); In re Tex. Dep’t of Family & Protective Servs., No. 04-22-00175-CV, 660 S.W.3d 175 (Tex. App.—San Antonio Aug. 3, 2022, orig. proceeding) (mem. op.).
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held a hearing. See TEX. FAM. CODE ANN. § 201.015 (requesting a de novo hearing before the
referring court). During the hearing, the Department argued the associate judge’s order must be
vacated because it ordered the Department to pay monthly cash assistance beyond the statutory
guidelines to an ineligible caregiver. The attorney for the children conceded that S.C. no longer
qualifies for monthly cash assistance under the statutory scheme, but the attorney nevertheless
argued that S.C. was entitled to monthly cash assistance because it was in the best interest of the
children.
At the end of the hearing, the trial court ruled on the Department’s motion. Its “Order
Granting in Part and Denying in Part Petitioner’s Request for De Novo Hearing Before the
Referring Court,” which it signed on March 27, 2023, includes these provisions:
4.1.1 The Department is ordered to continue to pay the equivalent of monthly “kinship funds” to any and all caregivers / placements for the (4) children in its care so that the Department shall meet the needs of all (4) children in its care as required by law. 4.1.2 Any and all funds in arrears that have not been paid to the caregiver shall be tendered no later than March 15, 2023 at 5:00 PM. 4.1.3 The Court finds the equivalent of “kinship funds” to be a monthly financial assistance of $1520.00.
The Department filed this original proceeding; it argues that the trial court’s order violates
the Separation of Powers Clause because the order usurps the Department’s authority to set and
regulate the relative caregiver program. The Department also argues that it cannot legally comply
with the order.
We requested responses from the trial court and the children’s attorney, but neither filed a
response.
STANDARD OF REVIEW
Generally, to obtain mandamus relief, “the Department must show the trial court
committed a clear abuse of discretion and the Department has no adequate remedy by appeal.” In
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re Tex. Dep’t of Family & Protective Servs., 660 S.W.3d 161, 164 (Tex. App.—San Antonio 2022,
orig. proceeding) (citing In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005) (orig.
proceeding) (per curiam)). A trial court abuses its discretion if it clearly fails to correctly analyze
or apply the law. Walker v. Packer, 827 S.W.2d 833, 839, 840 (Tex. 1992) (orig. proceeding). In
that case, if the challenged order is void, the Department does not have to show a lack of an
adequate appellate remedy. In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig.
proceeding) (per curiam). “A judgment is void only when it is apparent that the court rendering
judgment had no jurisdiction of the parties, no jurisdiction of the subject matter, no jurisdiction to
enter the judgment, or no capacity to act as a court.” Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703
(Tex. 1990) (orig. proceeding) (per curiam) (citing Cook v. Cameron, 733 S.W.2d 137, 140 (Tex.
1987)).
SEPARATION OF POWERS
“The separation of the powers of government into three distinct, rival branches—
legislative, executive, and judicial—is the absolutely central guarantee of a just Government.” Fin.
Comm’n of Tex. v. Norwood, 418 S.W.3d 566, 569 (Tex. 2013) (internal quotation marks omitted).
The Texas Constitution divides the branches’ powers:
The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.
TEX. CONST. art. II, § 1; see Henry v. Cox, 520 S.W.3d 28, 38 (Tex. 2017). Authority entrusted in
one branch of government cannot be exercised by another branch “unless expressly permitted by
the constitution.” See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993).
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A. Violations
“The Separation of Powers Clause is violated (1) when one branch of government assumes
power more properly attached to another branch or (2) when one branch unduly interferes with
another branch so that the other cannot effectively exercise its constitutionally assigned powers.”
In re D.W., 249 S.W.3d 625, 635 (Tex. App.—Fort Worth 2008, no pet.).
B. The Powers of our Co-Equal Branches of Government
Although the Separation of Powers Clause “appears on its face to be rigid and absolute . . .
such a construction would be impossible to implement in all cases because not every governmental
power fits logically and clearly into any particular ‘department.’” Tex. Comm’n on Env’t Quality
v. Abbott, 311 S.W.3d 663, 671 (Tex. App.—Austin 2010, pet. denied) (internal quotation marks
omitted). Thus, Texas courts have never held that the three branches of government operate with
absolute independence; instead, courts have “long held that some degree of interdependence and
reciprocity is subsumed within the separation of powers principle.” Id. at 672. Accordingly, the
separation of powers doctrine “enjoins upon its branches separateness but interdependence,
autonomy but reciprocity.” Id.
But where one branch of government assumes powers more properly attached to another
branch or unduly interferes with the powers of another, any resulting order is void. See State v.
Ferguson, 125 S.W.2d 272, 274 (Tex. 1939) (orig. proceeding) (noting the availability of
mandamus relief from a void order where one branch of government usurps the power of another);
In re D.W., 249 S.W.3d at 635.
C. Judicial Branch
The power of the judiciary is “divided among . . . various named courts by means of express
grants of ‘jurisdiction’ contained in the constitution and statutes.” Eichelberger v. Eichelberger,
582 S.W.2d 395, 398 (Tex. 1979). “In addition to the express grants of judicial power to each
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court, there are other powers which courts may exercise though not expressly authorized or
described by constitution or statute.” Id.
1. Constitutional Authority
Here, the trial court derives its constitutional power from Article V, section 8 of the Texas
Constitution. See TEX. CONST. art. V, § 8 (“District Court jurisdiction consists of exclusive,
appellate, and original jurisdiction of all actions, proceedings, and remedies, except in cases where
exclusive, appellate, or original jurisdiction may be conferred by this Constitution or other law on
some other court, tribunal, or administrative body[.]”). District courts in Texas are invested with
the powers explicitly defined in the constitution. Travelers Indem. Co. of Conn. v. Mayfield, 923
S.W.2d 590, 594 (Tex. 1996) (orig. proceeding) (quoting Eichelberger, 582 S.W.2d at 398).
2. Statutory Authority
The trial court’s statutory power derives from the Texas Family Code. The associate judge
rendered his order under Chapter 263 of the Texas Family Code. See TEX. FAM. CODE ANN.
§ 263.501(b) (requiring court to conduct permanency hearing within ninety days of the date of
termination order and at least every six months thereafter); see also id. § 263.5031(a)(4) (requiring
court to review permanency progress report to determine, inter alia, child’s placement with a
relative caregiver, continued necessity for placement, and appropriateness of placement); id.
§ 263.502(a-1) (requiring Department to include certain information in permanency progress
report); id. §§ 155.001–.003 (establishing court’s continuing, exclusive jurisdiction over child—
including to render and modify orders—after rendition of final order in Title 5 cases, under which
Chapter 263 falls).
After the associate judge rendered his order, the Department sought a de novo hearing
before the referring court. The Department sought review of the portions of the order relating to
financial kinship assistance. See id. § 201.015 (requesting a de novo hearing before the referring
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court); see also id. § 201.204 (detailing the general powers of an associate judge in a child
protection case). Because the Department did not seek or otherwise challenge the remainder of the
associate judge’s order, the unchallenged portions of the associate judge’s order became the final
order of the trial court. See id. § 201.2041(a). Accordingly, the trial court had the statutory duty
and power to review and modify the order.
3. Inherent Authority
A trial court may also exercise powers “not expressly authorized or described by
constitution or statute.” Eichelberger, 582 S.W.2d at 398.
These powers are woven into the fabric of the constitution by virtue of their origin in the common law and the mandate of [the Texas Constitution’s] separation of powers between three co-equal branches. .... The inherent judicial power of a court is not derived from legislative grant or specific constitutional provision, but from the very fact that the court has been created and charged by the constitution with certain duties and responsibilities. The inherent powers of a court are those which it may call upon to aid in the exercise of its jurisdiction, in the administration of justice, and in the preservation of its independence and integrity. Inherent power . . . springs from the doctrine of separation of powers between the three governmental branches . . . [and] exists to enable our courts to effectively perform their judicial functions and to protect their dignity, independence[,] and integrity.
Id. at 398–99 (footnote omitted); see Henry, 520 S.W.3d at 36 (recognizing that a trial court’s
constitutionally-derived inherent authority “is not boundless” and it does not extend to allow a trial
court to “usurp legislative authority”).
D. Legislative Branch
The power to make the law of the people is vested in the legislative branch through Article
3, section 1 of the Texas Constitution. TEX. CONST. art. III, § 1 (“The Legislative power of this
State shall be vested in a Senate and House of Representatives, which together shall be styled ‘The
Legislature of the State of Texas.’”); see also Diaz v. State, 68 S.W.3d 680, 685 (Tex. App.—El
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Paso 2000, pet. denied). “The power of the legislature includes the power to make, alter, and repeal
laws, when such power is not expressly or impliedly forbidden by other provisions of the state
Constitution.” Diaz, 68 S.W.3d at 685.
The legislative branch is empowered to create agencies and “may delegate its powers to
agencies established to carry out legislative purposes, as long as it establishes ‘reasonable
standards to guide the entity to which the powers are delegated.’” Tex. Boll Weevil Eradication
Found., Inc. v. Lewellen, 952 S.W.2d 454, 467 (Tex. 1997) (quoting Edgewood Indep. Sch. Dist.
v. Meno, 917 S.W.2d 717, 740–41 (Tex. 1995)); see also FM Props. Operating Co. v. City of
Austin, 22 S.W.3d 868, 873 (Tex. 2000) (“Defining what legislative power is or when it has been
delegated is no easy task.”). The legislature is not required “to include every detail and anticipate
unforeseen circumstances [as such obligation] would . . . defeat the purpose of delegating
legislative authority.” Edgewood, 917 S.W.2d at 740.
E. Department of Family and Protective Services
In this case, the Department is a state agency, administered by the Health and Human
Services Commission, that is legislatively designated to, inter alia, provide support and services to
children through state and federal funding. See TEX. HUM. RES. CODE ANN. § 40.002; Tex. Dep’t
of Family & Protective Servs. v. Parra, 503 S.W.3d 646, 651 n.5 (Tex. App.—El Paso 2016, pet.
denied) (“The Health and Human Services Commission oversees the Texas Health and Human
Services system, which is composed of five state agencies, including [the Department].”). As a
state agency, the Department’s “powers are limited to (1) powers expressly conferred by the
Legislature, and (2) ‘implied powers that are reasonably necessary to carry out the express
responsibilities given to [the Department] by the Legislature.’” Tex. Mun. Power Agency v. Pub.
Util. Comm’n of Tex., 253 S.W.3d 184, 192–93 (Tex. 2007) (quoting Pub. Util. Comm’n of Tex.
v. City Pub. Serv. Bd. of San Antonio, 53 S.W.3d 310, 315 (Tex. 2001)).
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F. Relative, Caregiver Placement Program
In delegating its authority, the legislature directed the Department to create a program “to
promote continuity and stability for children for whom the [D]epartment is appointed managing
conservator by placing those children with relative or other designated caregivers.” TEX. FAM.
CODE ANN. § 264.752(a)(1). The program is required to “facilitate relative or other designated
caregiver placements by providing assistance and services to those caregivers in accordance with
[guidelines set by the legislature] and rules adopted by the [Department’s] executive
commissioner.” Id. § 264.752(a)(2).
1. Qualifications for Assistance
For a caregiver to receive assistance under the program, the children must be in the
managing conservatorship of the Department and the caregiver must
(1) be related to the children or have a longstanding and significant relationship with the children or the family of the children; (2) be formally approved by [the Department] as a caregiver; (3) sign and abide by a written caregiver assistance agreement, which includes a commitment to: (A) be available as a continuing placement for the children for at least six months; (B) participate in specialized kinship training as recommended and provided by [the Department]; (C) comply with [Department] requirements limiting or facilitating contact between the parents and the children; (D) apply for other forms of assistance, including financial and medical, for which the children may be eligible; and (E) comply with any other child specific requirements or limitations; and (4) not be a licensed or verified foster home or group foster home.
40 TEX. ADMIN. CODE § 700.1003(a), (b). If the caregiver satisfies the above statutory
requirements, in addition to having a family income that does not exceed 300% of poverty as
determined by federal guidelines, the caregiver will be eligible to receive cash assistance under the
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program. Id. § 700.1003(a)–(c); see also id. § 700.1007(a) (reiterating the eligibility requirements
for assistance under the program).
2. Additional Assistance
As alluded to above, an eligible caregiver may receive various forms of assistance from the
Department, including limited cash assistance. See 40 TEX. ADMIN. CODE § 700.1001 (“Subject to
availability of funds and eligibility requirements, caregiver assistance may include case
management services, training, referrals to appropriate services and assistance programs, family
counseling, child-care services, limited cash assistance, and other support services. Funding for
this program is limited to the state and federal funds allocated to [the Department] for this
program.”); id. § 700.1005 (detailing what types of cash assistance are available to eligible
caregivers).
3. Monthly Cash Payment
A caregiver’s monthly cash payment is distributed in the same manner foster care
reimbursement payments are and the payment to the caregiver may not exceed 50% of the
Department’s daily Basic Foster Care Rate. Id. § 700.1007(b)–(c). The daily Basic Foster Care
Rate is set by the Department based on a rate-setting methodology. Id. § 700.1753 (detailing the
Department’s rate-setting methodology); id. § 700.1007(c) (“The amount of the monthly cash
payment will be published on the [Department’s] website, and is paid per child in the managing
conservatorship of [the Department] who is placed in the home of the eligible caregiver.”).
4. Limited Period for Payments
An eligible caregiver receives a monthly cash payment for a twelve-month period. Id.
§ 700.1007(d). The Department may, if it determines good cause exists, provide a one-time six-
month extension. Id.; TEX. FAM. CODE ANN. § 264.755(b-1) (“The [D]epartment may not provide
monetary assistance to an eligible caregiver . . . after the first anniversary of the date the caregiver
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receives the first monetary assistance payment from the [D]epartment” and “[t]he [D]epartment,
at its discretion and for good cause, may extend the monetary assistance payments for an additional
six months.”). “‘Good cause’ refers to circumstances in which it is in the child’s best interest to
remain in the home of a caregiver who is receiving monthly cash payments and is generally
comprised of actions and steps necessary in order to achieve positive permanency for the child.” 3
40 TEX. ADMIN. CODE § 700.1007(d).
Thus, the legislature authorized the Department to determine the monthly cash assistance
a caregiver receives, but it limited the monthly cash assistance payments the Department may
make to twelve months after the caregiver began to receive cash payments unless the Department
determines good cause exists. Id.
TRIAL COURT’S ABUSE OF DISCRETION
We now apply the clear and determined law to the specific facts of this case. See In re
Ginsberg, 630 S.W.3d 1, 8 (Tex. Spec. Ct. Rev. 2018).
A. Monthly Cash Payments to S.C.
In this case, the Department is the children’s managing conservator. S.C., the children’s
maternal great-aunt, became the children’s caregiver in September 2020 and began receiving cash
payments under the program in November 2020. S.C. received approximately $1,500 a month in
3 The statute includes examples of good cause: (1) the identification, release, or location of a previously absent parent of the child; (2) awaiting the expiration of the timeline for an appeal of an order in a suit affecting the parent- child relationship; (3) the provision of additional time for the caregiver to complete the approval process for adoption of the child; (4) awaiting the approval of a child’s placement from another state pursuant the Interstate Compact on the Placement of Children, as provided in Subchapter B, Chapter 162, Texas Family Code; (5) a delayed determination of the child’s Indian Child status, or awaiting the approval of the Indian Child’s Tribe, pursuant the Indian Child Welfare Act, 25 U.S.C. §1901, et seq.; and (6) any other circumstance surrounding the child or the caregiver that [the Department] deems to necessitate the extension. 40 TEX. ADMIN. CODE § 700.1007(d).
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cash assistance for the children. Because S.C.’s first cash payment was in November 2020, she
would receive her final cash payment under the program in November 2021 absent a good cause
extension from the Department. See 40 TEX. ADMIN. CODE § 700.1007(d); TEX. FAM. CODE ANN.
§ 264.755(b-1). Finding good cause to do so, the Department granted S.C. a six-month extension.
B. Additional Benefits to S.C.
In addition to the monthly cash payments, S.C. received other forms of assistance under
the program. For example, the Department purchased a computer and printer for S.C. to help her
with training and licensing so her home could become a verified foster home. A caregiver, such as
S.C., who wishes to receive assistance under the program beyond the statutory limit may apply to
have her home become a verified foster home. See TEX. FAM. CODE ANN. § 264.755(a-1)(1)
(requiring, if applicable, the Department to inform a caregiver of the option to become a verified
foster home).
C. Foster Home Screening
To operate a foster home, an applicant must be verified by a licensed child-placing agency.
Id. To acquire verification, a prospective foster home applicant must, among other things, complete
a foster home screening. 26 TEX. ADMIN. CODE § 749.2445(a). A foster home screening requires
the licensed child-placing agency to obtain twenty-three categories of information about the
prospective foster home, including a “criminal history and central registry background check” for
the prospective foster parent and “any person over fourteen years of age or older who will regularly
or frequently be staying or present at the home.” Id. § 749.2447(7).
The Department referred S.C. to four separate licensed child-placing agencies to complete
the verification process. Two agencies could not assist S.C. due to staffing and resource issues.
The remaining two agencies, however, could not complete the foster home screening because S.C.
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refused to disclose who frequented her home and further refused to agree to background checks
on those individuals. 4
D. Trial Court’s Role
As we noted above, the legislature charges trial courts with reviewing permanency progress
reports to ensure the needs of children under the Department’s care are being adequately addressed.
TEX. FAM. CODE ANN. § 263.5031; In re Tex. Dep’t of Family & Protective Servs., 660 S.W.3d
248, 257 (Tex. App.—San Antonio 2022, orig. proceeding). But that charge presupposes the trial
court will faithfully follow the applicable laws. See TEX. CONST. art. XVI, § 1 (oath of office);
TEX. CODE JUD. CONDUCT, CANONS 2(A), 3(B), 3(B)(2), reprinted in TEX. GOV’T CODE ANN., tit.
2, subtit. G, app. C; Tesco Am., Inc. v. Strong Indus., Inc., 221 S.W.3d 550, 555 (Tex. 2006)
(emphasizing that “judges are advocates only for the law”); Walker v. Packer, 827 S.W.2d 833,
840 (Tex. 1992) (“A trial court has no ‘discretion’ in determining what the law is or applying the
law to the facts. Thus, a clear failure by the trial court to analyze or apply the law correctly will
constitute an abuse of discretion.”).
We turn now to the trial court’s March 27, 2023 order.
E. Trial Court’s Order
Despite S.C.’s failure to have her home approved as a verified foster home, on March 27,
2023, the trial court ordered the Department to pay a $1,520 monthly cash payment to S.C. It also
ordered the Department to pay arrears to S.C. to cover the period after S.C. became statutorily
ineligible to receive monthly cash payments under the program.
When the trial court rendered its order, S.C. was no longer eligible to receive assistance
under the program, and her home was not a verified foster home because she refused to complete
4 At the de novo hearing, a Department representative testified that, after an investigation, it was determined that undisclosed individuals frequented or resided in S.C.’s home.
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the verification process. We have not been directed to, nor have we found, any other basis on which
a trial court has the authority to extend monthly cash payments under the program. Moreover, even
assuming S.C. was still eligible to receive a monthly cash payment, the legislature has vested the
authority to set the amount for the monthly cash payment in the Department. See 40 TEX. ADMIN.
CODE §§ 700.1007(b)–(c), .1753.
As explained above, Family Code section 263.5031(4) requires a trial court to “review” the
permanency progress report prepared by the Department. The term “review” is not defined in
Chapter 263. Therefore, we look to the ordinary and plain meaning of the term, with a preference
to harmonize and find consistency with the statutory scheme as a whole. See Greater Houston
P’ship v. Paxton, 468 S.W.3d 51, 58 (Tex. 2015). To “review” means to consider, inspect, or
reexamine a subject or thing. Review, BLACK’S LAW DICTIONARY (11th ed. 2019). “The inclusion
of ‘review’ within the text of section 263.5031(4) allows the court to inspect, consider, or
reexamine the Department’s permanency progress report.” In re Tex. Dep’t of Family & Protective
Servs., 660 S.W.3d 161, 171 (Tex. App.—San Antonio 2022, orig. proceeding).
However, absent from section 263.5031(4) is an avenue whereby a court may extend the
duration of assistance to a caregiver beyond the statutory limit at a specific rate. Nor does the trial
court hold any authority to do either of these functions independently. Instead, as we have
recognized, the legislature set specific time limits and requirements on the Department and
delegated the power to establish and regulate the program and foster home verification to the
Department.
F. Joint Pursuit of Child’s Best Interest
We recognize the trial court’s ongoing statutory and inherent responsibility to act in the
children’s best interest. But the trial court does not act alone; it acts with “some degree of
interdependence and reciprocity [alongside the Department] within the separation of powers
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principle.” See Tex. Comm’n on Env’t Quality v. Abbott, 311 S.W.3d 663, 672 (Tex. App.—Austin
2010, pet. denied) (“Co-ordination or co-operation of two or more branches or departments of
government in the solution of certain problems is both the usual and expected thing.” (quoting
State Bd. of Ins. v. Betts, 308 S.W.2d 846, 852 (Tex. 1958))). Further, the trial court’s authority to
act in the children’s best interest is not boundless. Cf. Henry, 520 S.W.3d at 37. To the contrary,
its authority is limited. E.g., In re Tex. Dep’t of Family & Protective Servs., 660 S.W.3d at 172
(granting the Department mandamus relief because this same trial court’s order “unduly interfered
with the powers of the legislative branch”).
G. Previous Opinions by Our Court
Our numerous mandamus decisions have clarified the limits of the trial court’s authority in
similar cases. E.g., In re Tex. Dep’t of Family & Protective Servs., 660 S.W.3d at 257. We have
determined and made clear that “[the trial court] does not have the power to order the Department
to provide specific goods and specific services to specific children at specific rates.” Id. Our
opinions and orders should have eliminated any confusion or question about those limits. See In
re Ginsberg, 630 S.W.3d at 8 (considering whether a legal error was “made contrary to clear and
determined law about which there is no confusion or question as to its interpretation” (quoting In
re Barr, 13 S.W.3d 525, 545 (Tex. Rev. Trib. 1998)); In re Tex. Dep’t of Family & Protective
Servs., 660 S.W.3d at 257; In re Tex. Dep’t of Family & Protective Servs., 660 S.W.3d at 164; In
re Tex. Dep’t of Family & Protective Servs., No. 04-22-00085-CV, 2022 WL 2820937 (Tex.
App.—San Antonio July 20, 2022, orig. proceeding) (mem. op.); In re Tex. Dep’t of Family &
Protective Servs., No. 04-22-00087-CV, 2022 WL 3219596 (Tex. App.—San Antonio Aug. 10,
2022, orig. proceeding) (mem. op.); In re Tex. Dep’t of Family & Protective Servs., No. 04-22-
00091-CV, 2022 WL 2230720 (Tex. App.—San Antonio June 22, 2022, orig. proceeding) (mem.
op.); In re Tex. Dep’t of Family & Protective Servs., No. 04-22-00092-CV, 2022 WL 2230719
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(Tex. App.—San Antonio June 22, 2022, orig. proceeding) (mem. op.); In re Tex. Dep’t of Family
& Protective Servs., No. 04-22-00094-CV, 2022 WL 3219924 (Tex. App.—San Antonio Aug. 10,
2022, orig. proceeding) (mem. op.); In re Tex. Dep’t of Family & Protective Servs., No. 04-22-
00165-CV, 2022 WL 2135534 (Tex. App.—San Antonio June 15, 2022, orig. proceeding) (mem.
op.); In re Tex. Dep’t of Family & Protective Servs., No. 04-22-00166-CV, 2022 WL 3372425
(Tex. App.—San Antonio June 15, 2022, orig. proceeding) (mem. op.); In re Tex. Dep’t of Family
& Protective Servs., No. 04-22-00175-CV, 660 S.W.3d 175 (Tex. App.—San Antonio Aug. 3,
2022, orig. proceeding) (mem. op.); see also In re L.L., 65 S.W.3d 194, 196 (Tex. App.—Amarillo
2001, pet. dism’d) (“Under the doctrine of separation of powers among the executive, legislative,
and judicial branches of state government, Texas courts do not dictate to the Legislature how it
should discharge its duty.”).
H. Application of Our Court’s Precedent
During the de novo hearing, the trial court affirmed on the record that it was familiar with
our previous rulings. However, the trial court again issued an order that “usurp[ed] legislative
authority by substituting [its] policy judgment for that of the [Department’s which was] acting as
a legislative body.” See Henry, 520 S.W.3d at 37; In re Tex. Dep’t of Family & Protective Servs.,
No. 04-22-00196-CV, 2022 WL 2442169, at *6 (Tex. App.—San Antonio July 6, 2022, orig.
proceeding) (mem. op.) (noting that, in issuing its order, “[this same trial court] figuratively
removed her judicial robe and stepped into the role of directing Department operations”); see also
TEX. CODE JUD. CONDUCT, CANONS 2(A), 3(B)(2).
Given (1) our numerous previous opinions explaining the limits of the trial court’s
authority, (2) our orders requiring the trial court to vacate portions of its orders in similar
Department cases on the same or similar grounds, and (3) the record in this case, we necessarily
conclude that the trial court clearly abused its discretion and “use[d] the powers of [its] judicial
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office to accomplish a purpose which [it] knew or should have known was beyond the legitimate
exercise of [its] authority.” See In re Ginsberg, 630 S.W.3d at 8.
I. Challenged Provisions are Void
As we have explained, the trial court disregarded mandatory precedent and unduly
interfered with the powers of the legislative branch when its March 27, 2023 order required the
Department (1) to pay arrears after the statutory time frame expired and (2) to continue to make
monthly cash payments to S.C. at a specific rate. 5 Because the challenged portions of its order
violate the Separation of Powers Clause of the Texas Constitution, they are void. See In re D.W.,
249 S.W.3d at 635. Accordingly, the Department is entitled to mandamus relief without a showing
of no adequate remedy by appeal. See Sw. Bell Tel. Co., 35 S.W.3d at 605.
CONCLUSION
The trial court lacked the authority—constitutional, statutory, inherent, or otherwise—to
(1) order the Department to continue to pay the equivalent of monthly kinship funds beyond the
statutory timeframe, (2) order the Department to pay kinship arrears for any funds that are beyond
the statutory timeframe, or (3) make any findings regarding the monthly financial equivalent of
kinship fund assistance. These portions of its order are void.
We conditionally grant the Department’s petition for writ of mandamus. We order the trial
court to vacate, no later than fifteen days from the date of this opinion and order, decretal
paragraphs 4.1.1, 4.1.2, and 4.1.3 of its March 27, 2023 “Order Granting in Part and Denying in
Part Petitioner’s Request for De Novo Hearing Before the Referring Court.” Our writ of mandamus
will issue only if we are informed that the trial court has failed to comply.
Patricia O. Alvarez, Justice
5 Because this issue is dispositive, we do not reach the Department’s remaining argument. See TEX. R. APP. P. 47.1.
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