Court of Appeals Tenth Appellate District of Texas
10-25-00123-CV
In the Interest of I.T. and E.T., Children
On appeal from the 472nd District Court of Brazos County, Texas Judge George J. Wise, presiding Trial Court Cause No. 23-003312-CV-472
JUSTICE SMITH delivered the opinion of the Court.
MEMORANDUM OPINION
In its sole issue on appeal, the Department of Family and Protective
Services contends that the trial court abused its discretion by ordering the
Department to pay attorney’s fees and mediation fees for failing to mediate in
good faith. We reverse.
Background
The Department removed I.T. and E.T. after one of the children was
hospitalized for possible non-accidental injuries. The paternal grandmother
was suggested as a potential placement for the children. The record reflects
that the Department was awaiting a report from its medical expert narrowing
down the timeframe in which the child sustained the injuries before potentially “ruling out” the grandmother as the perpetrator and considering her as a
placement.
In October of 2024, with the one-year dismissal deadline approaching,
the parties (excluding the Department) filed joint motions to extend the
dismissal date and to attend mediation. The associate judge took up the
motions on October 18th. Counsel for the Department informed the associate
judge that “while the Department is not taking termination off the table” it
was “open to considering something short of termination” and would “continue
to review the grandmother and any additional relatives that are provided.”
The associate judge signed the Order for Mediation and extended the dismissal
deadline.
Mediation occurred on January 16th, at which time the record reflects
that the Department still had not received a written report from its medical
expert to potentially rule out the grandmother.
A few days after mediation, each parent filed a Motion for Sanctions
against the Department, claiming that the Department made “groundless” and
“bad faith” statements when it agreed to attend mediation because it “had no
intention to propose a resolution other than termination of the parents’ rights.”
On February 3rd, the Department received the medical expert’s written
report.
In the Interest of I.T. and E.T., Children Page 2 On February 12th, the associate judge heard evidence on the motions for
sanctions as well as a motion to place the children with the grandmother. The
Department explained that based on the medical expert’s findings, it no longer
opposed placing the children with the grandmother. Regarding the motions
for sanctions, Father’s attorney summarized the parents’ position that the
Department should be sanctioned because “there was no attempt at mediation
to come in to negotiate at all,” and that “there was no realistic movement for
our clients […] to enter into an agreement that involved termination, and that
was the only request.”
After the associate judge pointed out that the Department agreed to
attend the mediation, the following exchange occurred:
The Court: By definition, if not objecting to mediation, in its entirety, means that you will go in good faith, correct?
[The Department]: Your Honor, it was agreed as to four of the sides of the people. Yes, we agreed to go to mediation, but could not --
The Court: If you go to mediation, is that not, by definition, the intent to negotiate in good faith?
[The Department]: Yes, Your Honor.
The Court: Okay.
[The Department]: I believe the Department did.
The Court: How many offers, other than -- as [Father’s counsel] put it, “your best day in court” with termination, how many offers, other than accepting termination, were -- were forwarded by the
In the Interest of I.T. and E.T., Children Page 3 Department? I don’t want to know what they are. I want to know how many other offers were made.
[The Department]: The Department had also offered a different resolution, if they -- if the parents were to provide someone who could be approved, ruled out as a perpetrator of abuse to the children.
The Court: So nothing other than they’re going to get terminated?
[The Department]: No. It would not -- it would have been short of termination if somebody could’ve been offered at the time that we knew could have been ruled out.
The Court: At that time.
[The Department]: At that time --
[The Department]: -- we did not know that [the grandmother] could be ruled out, Judge. It was after that mediation that [Father’s counsel] requested the written report from the medical experts.
The Court: It’s y’all’s medical expert, correct?
[The Department]: Yes.
The Court: And y’all could have run that trap without [Father’s counsel] asking for it; true?
[The Department]: Your Honor, and I did. It -- it was --
The Court: Hang on. Hang on. Y’all could have run that trap and had that information available to you before mediation because you knew when mediation was going to happen, correct?
[The Department]: We did.
The Court: Okay. All right.
In the Interest of I.T. and E.T., Children Page 4 [The Department]: There were two --
The Court: All right. All right.
[The Department]: And at that discussion, and we announced that in court at the different settings back in November, as well as in December, that, at that time, with the medical experts discussions were was [sic] that --
The Court: I --
[The Department]: Ms. --
The Court: I -- I can’t get into the discussions or [sic] the negotiations are. How many things, other than termination, did the Department forward at mediation? A number. Not what they were. A number.
[The Department]: Two.
[The Department]: And, Your Honor, the Department did attempt to negotiate, and we could not --
The Court: Hang on. I don’t want to -- I don’t -- I don’t want to -- I cannot let you talk about what was -- what was -- I got [Father’s Counsel] saying only termination. You’re saying there were two other offers. I do not have in my file a Mediator’s Statement from [the mediator].
[Father’s Counsel]: Correct, Judge.
The Court: So I need a Mediator’s Statement from [the mediator] as to her position because she’s going to be the one that’s in the best position, as an objective third-party mediator, to determine whether or not mediation was in good faith or was not in good faith. So I am going to recess this hearing to get that information from [the mediator]. It needs to be filed today. It needs to be filed before
In the Interest of I.T. and E.T., Children Page 5 we come back, which will be -- actually, we’re going to take a real quick recess. It’s 11:00. We’re going to recess for 15 minutes, come back in 15 minutes, and you’re going to let me know what time [the mediator] can get that filed.
[The Department]: Your Honor, may I please just make one more statement?
The Court: Sure.
[The Department]: Your Honor, on October 18th, when the Court entertained, everybody but the Department’s, Motion for Mediation, the Court report -- told the parties to consider all options, even it can’t resolve the case. If it can resolve limit issues. If it can -- just anything about it. The Department came, not only to resolve the entirety of the case, but also could we resolve anything to simplify trial, narrow the issues. The Department came to mediation in good faith.
The Court: [The mediator] is the one that’s going to make that determination. I need to know when she can get that filed.
The associate judge briefly recessed the hearing. Upon return, a copy of the
filed Mediator’s Statement was offered by Father’s counsel into evidence. All
parties affirmatively voiced “no objection” to the exhibit. The Mediator’s
Statement says:
I was asked to mediate [the underlying case] and arranged for mediation to take place at my office on January 16, 2025. All parties appeared for mediation. All parties appeared with counsel at the opening of mediation and I asked for announcement of positions. I believe the parents and CASA appeared and were willing to mediate in good faith. I do not believe the Department mediated in good faith.
In the Interest of I.T. and E.T., Children Page 6 The associate judge then questioned the parties regarding the duration
of mediation. The Department claimed that mediation lasted an hour and a
half, while Father’s attorney and the attorney ad litem believed less time was
spent “actually actively engaged in” mediation.
The Department reminded the trial court that it could not require the
parties to reach an agreement at mediation and re-urged that the Department
approached mediation in good faith by acting on evidence available at the time.
The associate judge stated:
The fact that an impasse was called at an hour and a half, or less, at a maximum of an hour and a half, is material to my finding based on [the mediator’s] letter. That the -- that the Department is believed, by [the mediator], not to have mediated in good faith.
The associate judge took the motions for sanctions under advisement.
On February 20th, the associate judge verbally pronounced her ruling on
the motions for sanctions. She ordered the Department to pay $150 to Brazos
County for Father’s court-appointed attorney’s time spent at the mediation,
$200 to Mother as reimbursement for her mediation fee, and $600 to Mother’s
retained attorney for his time spent at the mediation.
A written “Order for Costs of Court” addressed Father’s court-appointed
attorney’s fees. This order assessed the $150 in attorney’s fees as court costs
against the Department, finding as “good cause” that the Department never
objected to the mediation referral yet did not “participate in good faith” at the
In the Interest of I.T. and E.T., Children Page 7 mediation. The associate judge signed the Order for Costs of Court on
February 27th. A written “Order for Sanctions” addressed Mother’s $600
attorney’s fees and $200 mediation fee, assessing both as “sanctions” against
the Department for failure to “attend mediation in good faith.” The record does
not indicate that the associate judge signed the proposed Order for Sanctions.
The Department timely filed a request for de novo hearing, and the
associate judge sua sponte filed written findings of fact and conclusion of law.
The de novo hearing consisted of arguments of counsel, with no new
evidence offered for the referring court’s consideration. The referring court
explained that the transcript from the hearing on October 18th was going to be
instrumental to his determination. He stated, “[T]he fact of the matter is if
you’re going to go to mediation, you have to be able to enter into a mediation
in good faith. If you can’t, that’s fine; but don’t go to mediation.” The referring
court deferred his ruling until he could review the relevant reporter’s record.
On April 1st, the referring court signed an “Amended Order on
Department’s Request for De Novo Hearing,” which denied the Department’s
request for relief and “affirmed the trial court’s findings.” On April 11th, the
referring court signed the proposed Order for Sanctions, which expressly
grants Mother’s Motion for Sanctions, includes a finding that “good cause
exists to support an order for sanctions” against the Department for failure to
In the Interest of I.T. and E.T., Children Page 8 attend mediation in good faith, and assesses the $600 attorney’s fees for
Mother’s attorney’s time spent at the mediation and the $200 mediation fee
paid by Mother. This appeal followed.
Discussion
On appeal, both parties analyze the Order for Sanctions and the Order
for Costs of Court under the law applicable to inherent-authority sanctions;
however, they also evaluate the Order for Costs of Court under Rule 141 of the
Texas Rules of Civil Procedure as an assessment of court costs for “good cause.”
See Brewer v. Lennox Hearth Prods., LLC, 601 S.W.3d 704 (Tex. 2020); TEX. R.
CIV. P. 141.
The Department argues that the orders improperly penalize the
Department for not mediating in good faith and contends that the evidence is
insufficient to support a finding of “bad faith” for inherent-authority sanctions
or “good cause” for the assessment of court costs. Father argues that the policy
underlying alternative dispute resolution procedures “assumes good faith
participation in the process,” and that “[a]llowing a party to appear
unprepared, rigid in position, and resistant to the spirit of ADR – yet immune
from even limited cost consequences– would undermine the purpose of court-
ordered mediation.” We agree with the Department.
In the Interest of I.T. and E.T., Children Page 9 STANDARD OF REVIEW
We review a trial court’s assessment of sanctions for an abuse of
discretion. Brewer, 601 S.W.3d at 717. A trial court abuses its discretion when
it acts without reference to any guiding rules or principles, or if it bases its
order on an incorrect view of the law or a clearly erroneous assessment of the
evidence. Id.; Randolph v. Jackson Walker, L.L.P., 29 S.W.3d 271, 276 (Tex.
App.—Houston [14th Dist.] 2000, pet. denied). While we view conflicting
evidence favorably to the court's decision, we are not bound by the court's
findings of fact or conclusions of law. Brewer, 601 S.W.3d at 717. We
independently review the entire record to determine whether the trial court
abused its discretion. Id.
We also review a trial court’s assessment of court costs for “good cause”
for an abuse of discretion. See TEX. R. CIV. P. 141; Furr’s Supermarkets, Inc. v.
Bethune, 53 S.W.3d 375, 376 (Tex. 2001).
RELEVANT LAW
Courts have a statutory duty to encourage the peaceable resolution of
disputes, particularly those affecting the parent-child relationship. TEX. CIV.
PRAC. & REM. CODE ANN. §§ 154.002, 154.003. As such, the ADR Act
authorizes courts to refer a pending dispute to an alternative dispute
resolution procedure, such as mediation. Id. at § 154.021. Any party may,
In the Interest of I.T. and E.T., Children Page 10 within ten days after receiving notice that the court has referred the dispute
to mediation, object in writing to the referral. Id. at § 154.022(b). The court
may not refer the dispute if it finds that there is a reasonable basis for the
objection. Id. at § 154.022(c).
Trial courts have the authority to penalize a party for failure to attend
court-ordered mediation. See Decker v. Lindsay, 824 S.W.2d 247, 250 (Tex.
App.—Houston [1st Dist.] 1992, orig. proceeding). However, a trial court
cannot compel parties to negotiate in good faith at the mediation. In re
Acceptance Ins. Co., 33 S.W.3d 443, 451-52 (Tex. App.—Fort Worth 2000, orig.
proceeding); Avary v. Bank of America, 72 S.W.3d 779, 797 (Tex. App.—Dallas
2002, pet. denied). In other words, a court “can compel [the parties] to sit down
with each other,” but it “cannot force the disputants to peaceably resolve their
differences.” Decker, 824 S.W.2d at 250. The mediator, as an impartial third-
party facilitator, is also not allowed to “compel the parties to mediate
(negotiate) or coerce the parties to enter into a settlement agreement.” Id. at
250-51; TEX. CIV. PRAC. & REM. CODE ANN. § 154.053(a). Therefore:
[T]he policy of section 154.002 is consistent with a scheme where a court refers a dispute to an ADR procedure, requiring the parties to come together in court-ordered ADR procedures, but no one can compel the parties to negotiate or settle a dispute unless they voluntarily and mutually agree to do so. Any inconsistencies in chapter 154 can be resolved to give effect to a dominant legislative intent to compel referral, but not resolution.
In the Interest of I.T. and E.T., Children Page 11 Decker, 824 S.W.2d at 251.
With limited exceptions, any communication made by a participant
during the mediation that relates to the subject matter of the dispute is
confidential, is not subject to disclosure, and may not be used as evidence
against the participant in any judicial proceeding. TEX. CIV. PRAC. & REM.
CODE ANN. § 154.073. Even the manner in which the participants negotiate in
mediation should not be disclosed to the trial court. Tex. Parks & Wildlife
Dep’t. v. Davis, 988 S.W.2d 370, 375 (Tex. App.—Austin 1999, no pet.).
Further, neither the participants nor the third party facilitating the mediation
may be required to testify in any proceedings relating to or arising out of the
matter in dispute. TEX. CIV. PRAC. & REM. CODE ANN. § 154.073(b).
ANALYSIS
As a preliminary matter, we must address the Department’s argument
that the associate judge abused its discretion by soliciting the Mediator’s
Statement for use as evidence against the Department at the sanctions
hearing. Despite the ADR Act’s extensive confidentiality provisions, parties
may agree to disclose otherwise confidential information regarding matters
that occurred during the settlement process. Id. at § 154.053(c). Rather than
objecting to the parents’ accusations and the associate judge’s questioning
about what occurred during mediation, the Department answered questions
In the Interest of I.T. and E.T., Children Page 12 and attempted to offer its own evidence. Further, though we question the
propriety of the associate judge’s decision to solicit the Mediator’s Statement1,
the Department affirmatively voiced “no objection” to its admission into
evidence. The Department has therefore failed to preserve its complaint about
the Mediator’s Statement for review. See TEX. R. APP. P. 33.1.
Sanctions
Trial courts possess inherent authority to sanction parties for an abuse
of the judicial process that may not be covered by any specific rule or statute.2
Brewer, 601 S.W.3d at 718. However, that authority is not limitless. Here, the
Order for Costs of Court penalizes the Department for failure to “participate
in good faith at mediation.” The Order for Sanctions penalizes the
Department’s failure to “attend mediation in good faith.” Father claims that
these sanctions are predicated on the Department’s failure to “engage
meaningfully in the court-ordered process.” Despite their creative phrasing,
these are improper sanctions for failure to negotiate in good faith.
1 See In re Acceptance Ins. Co., 33 S.W.3d at 451 (stating that the trial court had no authority to
investigate whether the relator mediated in good faith). The associate judge’s inquiry into the manner in which the Department negotiated and how many offers the Department made during mediation also violated the associate judge’s own Order for Mediation. The Order for Mediation expressly stated that “the Court will be advised by the mediator, the parties, and counsel only that the case did or did not settle” and that the mediator “shall not be a witness.”
2 Both parties agree, and the record supports, that these sanctions were not imposed pursuant to any
rule or statute authorizing sanctions in this instance; rather, the court imposed these sanctions pursuant to its inherent authority.
In the Interest of I.T. and E.T., Children Page 13 The very basis of the parents’ request for sanctions was that the
Department did not “attempt at mediation to come in to negotiate” and offered
“no realistic movement” from termination. At the sanctions hearing, the
associate judge emphasized that the Department implied an “intent to
negotiate in good faith” by agreeing to attend mediation and then questioned
the quality of the Department’s substantive negotiation efforts at mediation by
scrutinizing the number of offers advanced by the Department and how long it
tried to negotiate.
While the ADR Act requires trial courts to encourage alternative dispute
resolution, it does not invite post-procedure policing of parties’ negotiation
efforts or evaluation of the caliber of their participation and engagement in the
process. Such a notion does not comport with the voluntary nature of ADR
procedures or the ADR Act’s confidentiality protections.
Further, “invocation of the court’s inherent power to sanction
necessitates a finding of bad faith.” Id. The Texas Supreme Court explained:
Bad faith is not just intentional conduct but intent to engage in conduct for an impermissible reason, willful noncompliance, or willful ignorance of the facts. “Bad faith” includes “conscious doing of a wrong for a dishonest, discriminatory, or malicious purpose.” Errors in judgment, lack of diligence, unreasonableness, negligence, or even gross negligence—without more—do not equate to bad faith. Improper motive, not perfection, is the touchstone. Bad faith can be established with direct or circumstantial evidence, but absent direct evidence, the record must reasonably give rise to an inference of intent or willfulness.
In the Interest of I.T. and E.T., Children Page 14 Id. at 718-19. When the record contains no evidence that the sanctioned party
acted in bad faith, the sanctions order is an abuse of discretion. See Guerra v.
L&F Distribs., LLC, 521 S.W.3d 878, 890 (Tex. App.—San Antonio 2017, no
pet.).
Here, while the associate judge and the referring court found a lack of
“good faith,” neither judge found that the Department acted in “bad faith.”
Father argues that the record supports a finding of bad faith because the
Department appeared “unprepared, took rigid positions, and failed to engage
meaningfully in the process” of mediation. These actions, he argues,
demonstrate bad faith as willful noncompliance with “the Court’s order to
participate in mediation in good faith.”
However, maintaining a rigid position at mediation does not
demonstrate willful noncompliance with the court’s Order for Mediation
because the order did not – and could not – require good faith negotiation. See
In re Acceptance Ins. Co., 33 S.W.3d at 451-52.3 Further, the associate judge
expressed frustration at the Department’s lack of diligence in obtaining its
medical expert report prior to mediation. Brewer, 601 S.W.3d at 718. However,
“[t]he issue of preparedness relates to whether a party mediated in good faith,”
3 The Order for Mediation designated how the mediation fees would be paid and required the parties
to be present during the entire mediation process, supply any information requested by the mediator, and follow any mediation rules imposed by the mediator.
In the Interest of I.T. and E.T., Children Page 15 which we have already explained is an inappropriate basis for sanctions. In re
Acceptance Ins. Co., 33 S.W.3d at 452. Finally, while the law provides that a
party may file a written objection to a court’s mediation referral, there is
nothing in the record indicating that the Department was aware within the
ten-day objection period that it would not have its expert’s report in time for
mediation or that mediation would otherwise be a fruitless or objectionable
exercise. See Decker, 824 S.W.2d at 249 (noting that “[m]ediation may be
beneficial even if relators believe it will not resolve the lawsuit”). Regardless,
the record does not reflect any improper motive behind the Department’s
failure to object to mediation.
We find no direct or circumstantial evidence in the record demonstrating
that the Department was motivated by a “dishonest, discriminatory, or
malicious purpose,” willfully failed to comply with the trial court’s permissible
directives, or otherwise exhibited the requisite bad faith to support the
sanctions orders. Brewer, 601 S.W.3d at 718.
Court Costs for “Good Cause”
The Texas Supreme Court has described "good cause" as an elusive
concept that varies from case to case, but it generally involves conduct that
unnecessarily prolonged proceedings, unreasonably increased costs, or
otherwise warrants penalization. Furr’s, 53 S.W.3d at 376-77. The “good
In the Interest of I.T. and E.T., Children Page 16 cause” stated in the written Order for Costs of Court is that the Department
did not object to the mediation referral and did not participate in good faith at
mediation.
Father relies on Texas Department of Transportation v. Pirtle for the
proposition that it is not an abuse of discretion for a trial court to assess
attorney’s fees and mediator’s fees against a party as costs of court when that
party does not file a written objection to a court’s mediation referral but
nevertheless refuses to mediate in good faith. Tex. Dep’t. Trans. v. Pirtle, 977
S.W.2d 657, 658 (Tex. App.—Fort Worth 1998, pet. denied).
The facts of Pirtle are distinguishable. In Pirtle, the Department of
Transportation “pretty much told [the court] from the beginning they weren't
going to mediate” based on a company policy prohibiting settlement of disputed
liability cases. Id. at 658. The Department of Transportation did not object to
the referral but refused to participate in the mediation. Id. Here, as noted
above, there is nothing in the record indicating that the Department was
similarly aware that mediation would be unfruitful or objectionable. The
record reflects that the Department appeared at mediation, made at least one
offer, and remained at mediation until the mediator called an impasse.
Applying Pirtle’s reasoning to the facts of this case would produce an absurd
result. If a trial court abuses its discretion by ordering a party to negotiate in
In the Interest of I.T. and E.T., Children Page 17 good faith or sanctioning a party for failing to do so, it follows that the trial
court cannot use a party’s failure to negotiate in good faith as “good cause” to
assess costs against them. To hold otherwise would permit courts to
circumvent the prohibition against sanctioning parties for not negotiating in
good faith by simply calling the fee assessment a court cost “for good cause”
instead of a sanction.
Accordingly, we find that the Order for Sanctions and the Order for Costs
of Court were an abuse of discretion and must be reversed.
Conclusion
We sustain the Department’s sole issue on appeal and reverse the Order
for Sanctions and Order for Costs of Court.
STEVE SMITH Justice
OPINION DELIVERED and FILED: October 2, 2025 Before Chief Justice Johnson, Justice Smith, and Justice Harris Reversed CV06
In the Interest of I.T. and E.T., Children Page 18