No. 01-15-00087-CV

______________ 

IN THE 

COURT OF APPEALS 

FOR THE 

FIRST DISTRICT OF TEXAS 

at Houston 

______________ 

IN RE 

KIMBERLY MARKS 

Relator 

_________________ 

Original Proceeding from the 310th Judicial District Court 

Harris County, Texas 

Cause No. 2013-73339 

RELATOR’S OBJECTION TO EXHIBIT MR-2 

Steven D. Poock 

State Bar Number 00794473 

P.O. Box 984 

Sugar Land, Texas 77487 

Tel. (281) 277-7678 

Fax (281) 277-7679 

spoock@juno.com 

Attorney for Relator, KIMBERLY MARKS 

ACCEPTED

01-15-00087-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

3/11/2015 11:31:03 AM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 3/11/2015 11:31:03 AM CHRISTOPHER A. PRINE Clerk
No. 01-15-00087-CV

KIMBERLY MARKS § IN THE FIRST

 Relator § 

 § COURT OF APPEALS

 v. §

 § HOUSTON, TEXAS

THE DEPARTMENT OF FAMILY & §

PROTECTIVE SERVICES §

 Real Party in Interest § 

RELATOR’S OBJECTION TO EXHIBIT MR-2

TO THE HONORABLE JUSTICE OF SAID COURT:

Relator Kimberly Marks Objects to the Department’s Exhibit MR-2, and in 

support of said motion shows:

1. Kimberly Marks objects to Exhibit MR-2 attached to First Supplemental 

Mandamus Record of Real Party in Interest1.

2. Exhibit MR-2 was not served on Kimberly Marks, was never served, 

presented or made available to Counsel, was never offered as evidence, and was never 

admitted as evidence. Moreover, an affidavit cannot be cross-examined, and counsel had 

no opportunity to develop any counter-evidence as the affidavit does not appear on the 

court’s website, it was not available to counsel, and it was not offered at the hearing. 

Counsel for Kimberly Marks was completely unaware of the affidavit until it was filed 

with the appellate court. 

 

1

The First Supplemental Mandamus Record of Real Party in Interest was the initial Record filed 

by the Department. 
3. Assuming the Department received an anonymous complaint, the proper 

response, as detailed in Marks’ brief, is to afford Kimberly Marks her constitutionally 

protected rights by first conducting an investigation (Chapter 261), then filing a SAPCR 

(Chapter 262), obtaining a judicial finding of abuse or neglect, and then, upon a finding 

of abuse or neglect, it would be appropriate for the Department to move the court for 

Kimberly Marks to engage in child welfare services (Chapter 264). In the present case, 

Kimberly Marks was dispossessed of her right to request a jury, was not afforded a full 

adversarial hearing with 45 days notice, and the Department never obtained a finding of 

abuse or neglect. Instead, with seven days notice, virtually no evidence, and nearly no

process, Relator lost her freedom and many of her constitutional rights, and was 

subjected to invasive testing and being held in the courtroom against her will. 

4. The right to forty-five days notice of trial is a constitutionally protected 

right:

Rule 245 of the rules of civil procedure provides that a court may on its own 

motion set a contested case for first setting for trial, with reasonable notice to the 

parties of not less than forty-five days. See Tex.R.Civ.P. 245. This notice is 

mandatory and involves the constitutionally protected right of due process. See 

Transoceanic Shipping Co.. Inc. v. Gen'l Universal Sys., Inc., 961 S.W.2d 418,

420 n. 2 (Tex.App.-Houston [1st Dist.] 1997, no writ).

Burress v. Richardson, 97 S.W.3d 806 (Tex.App.- Dallas 2003, no pet.)

PRAYER

For the reasons listed above, Relator respectfully requests this Court to SUSTAIN 

Relator’s objection to the Department’s Exhibit MR-2.
Respectfully Submitted,

 /s/ Steven Poock

___________________

Steven Poock

P.O. Box 984

Sugar Land, Texas 77487

State Bar No. 00794473

spoock@juno.com

(281) 242-9700 Telephone

(281) 242-8340 Facsimile

 /s/ Tom Sanders

___________________

Tom Sanders

P.O. Box 1860

Sugar Land, Texas 77487

State Bar No. 17609900

Tcsanders76@yahoo.com

(281) 242-9700 Telephone

(281) 242-8340 Facsimile

ATTORNEYS FOR RELATOR

KIMBERLY MARKS

CERTIFICATE OF SERVICE

 I certify that a copy of the foregoing has been served on the parties listed below on 

this the 11th day of March, 2015.

 /s/ Steven Poock

_______________________

Steven Poock
Respondent: The Honorable Judge Lisa Millard

 Presiding Judge of the 310th Judicial District Court

 201 Caroline, 13th Floor

 Houston, TX 77002

 

Real Party in Interest: Damon Wayne Marks

1008 Railroad

Thornton, TX 76687

Real Party in Interest: Department of Family and Protective Services

Counsel Sandra Hachem

Sr. Assistant County Attorney

State Bar No. 08667060

1019 Congress, 17th Floor

Houston, Texas 77002

Sandra.Hachem@cao.hctx.net

(713) 274.5293 (telephone)

(713) 437.4700 (facsimile)