No. 01-15-00087-CV

__________________________________ 

IN THE COURT OF APPEALS FOR THE 

FIRST SUPREME JUDICIAL DISTRICT OF TEXAS 

AT HOUSTON, TEXAS 

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IN RE: KIMBERLY MARKS, Relator 

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Original Proceeding brought from the 310th Judicial District of Harris County, 

Texas, No. 2013-73339 

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RESPONSE TO RELATOR’S OBJECTION TO EXHIBIT MR-2 

AND RESPONSE TO JURISDICTION 

_________________________________________________________________ 

TO THE HONORABLE COURT OF APPEALS: 

 The Real Party in Interest, Department of Family & Protective Services 

[“Department”], respectfully responds to relator’s objection to Exhibit MR-2 and 

response to jurisdiction as follows: 

1. Relevant Background Facts 

This present case involves a mandamus petition filed by Kimberly Marks 

from an order requiring her to participate in services pursuant to Tex. Fam. Code 

Ann. §264.203 (West 2008). The Respondent named in the Petition for Mandamus 

is the Honorable Lisa Millard, Judge of the 310th Judicial District Court of Harris 

ACCEPTED

01-15-00087-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

3/19/2015 4:25:56 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 3/19/2015 4:25:56 PM CHRISTOPHER A. PRINE Clerk
2

County, Texas, the court where the subject case is docketed under Cause No. 2013-

73339, and styled, “In the Interest of [ARM, KRM and CM].” 

On January 9, 2015, the Department filed a petition styled, “Original Motion 

to Modify and Petition for Order to Participate in Services.” MR-1.

1

 The second 

sentence of this petition expressly states there is an “affidavit attached hereto and 

incorporated herein in its entirety.” Id. (emphasis added). Moreover, the affidavit 

is referenced as the basis for the Department’s request under Section 264.203 of 

the Family Code for an order that the parents participate in services. MR-1 p. 2. 

When the Department filed its petition, the District Clerk stamped both the petition 

and the affidavit with the District Clerk’s stamp noting both documents were filed

“1/9/2015” and received in “Envelope No. 371496”. See MR-1 and MR-2. 

Thereafter citation was issued and on January 20, 2015 Kimberly Marks was 

formally served with the Department’s petition and given notice that a hearing 

would be held on January 27, 2015. MR-3 & MR-4. Prior to the hearing, Ms. 

Marks filed a response on behalf of herself and her children contesting the petition. 

MR-5; Marks(MR)-4.2 The responses did not complain that Ms. Marks did not 

receive the affidavit attached to the petition and expressly mentioned in the first 

paragraph of the petition. See MR-1. Moreover, no claim was made regarding that 

 

1

“MR” in this brief refers to the First Supplemental Mandamus Record of the Real Party in 

Interest. The number following correlates with the number attachment assigned in that 

supplemental record.

2

“Mark(MR)” in this brief refers to the Mandamus Record filed by Relator’s attorney Steven 

Poocks on 2/9/15.
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when the hearing was held and Ms. Marks appeared with her attorney Tom 

Sanders. MR-11. 

In this connection, at the hearing, the judge took notice, consistent with the 

affidavit filed with the Department’s motion, that there was previous CPS history 

from 2007. MR-11 (RR3p. 9). Ms. Marks did not contest such notice, but rather 

acknowledged he did not know that. MR-11 p. 9. The judge added: “And that 

there was reason to believe there was physical abuse.” MR-11 p. 9. Ms. Marks’ 

attorney stated: “I can’t agree or disagree.” MR-11 p. 9. 

Ms. Marks’ attorney stated his big argument was “I think there’s a huge 

jurisdiction and a standing issue.” MR-11 p. 5 & p. 8. He suggested this would be 

established “if the evidence was developed” and referred to what he believed the 

evidence would show. MR-11 p. 6 (“And if we develop the evidence... “I think the 

evidence would show”).

The Department responded by discussing the underlying facts, and, no 

objection was made when the Department’s attorney proceeded to provide relevant 

facts through attorney testimony, therefore, it was permitted.

4

In this connection, 

 

3

“RR” is abbreviation for the Reporter’s Record included as Attachment 11 to the Department’s 

Mandamus Record.

4 As illustrated by the Supreme Court, failure to object to attorney statements concerning facts 

may result in such statements being accepted as evidence in the case. See Mathis v. Lockwood, 

166 S.W3d 743 (Tex. 2006) (At a post-judgment hearing challenging a default judgment, counsel 

testified that notice was sent to the defendant, but the defendant denied receiving it. While 

statements by neither were under oath, the oath requirement was waived when neither raised any 

objection in circumstances that clearly indicated each was tendering evidence on the record 
4

the attorney stated that the Department received its referral in August of 2014. 

MR-10 (RR p. 12). At some point the children were placed with the maternal 

grandparents and she signed a document but she did not sign the service plan after 

it was requested. MR-10 (RR p. 12). Also, the mother stopped complying with the 

Department around Christmas of 2014. MR-10 (RR p. 12). 

The court asked if there had been in problems in between that time, and the 

Department’s attorney responded that there was a positive drug test in September 

2014 and after that the children were placed with the maternal grandparents’ until 

removed by the mother. MR-10 (RR p. 13). It was added, though the mother 

claimed she would continue drug testing, she declined. MR-10 (RR p. 13). 

Importantly, for purposes of the issue in this response, during the 

Department’s presentation of the facts, the Department’s specifically referred to 

the “affidavit” when discussing the initial referral in August of 2014. MR-11 (RR 

p. 12) (“I’m referring to the affidavit.”). In addition, the judge obviously made the 

parties aware she was considering the affidavit at this hearing, because the judge

stated she saw “Latuda” (a drug not previously discussed but referenced on page 6 

of the Affidavit). MR-11 (RR p. 14) & MR-2 p. 6. No one objected at that point. 

Also, Ms. Marks’ attorney likely understood the facts in the affidavit were being 

 

based on personal knowledge on the sole contested issue); Banda v. Garcia, 955 S.W.2d 270, 

272 (Tex. 1997) (holding attorney's unsworn statements tendered as evidence were sufficient 

absent objection); see also Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005).
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considered, because after the court referred to that and asked if she was taking 

anything else, Ms. Marks’s attorney responded: “What I have, Judge, is she’s 

prescribed Prozac, Latuda, and Adderall.” MR-10 (RR p. 14). 

Ms. Mark’s attorney then asserted she had been cleared on drug tests before 

and represented: “she has taken voluntarily and she’s told me she would still 

take voluntarily.” MR-10 (RR p. 14) (emphasis added). The Department’s 

attorney responded: “he’s saying that she’s voluntarily willing to take a drug 

test. That’s what we’re asking for, her to take a drug test and show that it’s 

negative.” MR-10 (RR p. 1). The Department added that the Department would 

be happy to look at any prescriptions she offered but added that the Department 

had different facts about prescriptions each time CPS spoke with her and had been 

trying for months to get this information without cooperation. MR-10 (RR p. 16).

At the conclusion of the hearing, the court advised that she was going to 

order the mother to take a drug test and that it would be sealed so that only the 

attorneys could view it. MR-10 (RR p. 18). The court advised if the drug test is 

positive to let the court know, and the court presumed the matter would be 

dismissed if not. RR p. 19. 

That same day, Ms. Marks filed a pro se Petition for Mandamus asking this 

court for emergency relief suspending the court’s order and to declare that the 

court’s order was contrary to statutory and constitutional rights and void. Petition 
6

for Mandamus of Ms. Marks filed January 27, 2015. On that same date, however, 

she submitted a supplement to her mandamus admitting she submitted to the drug 

test but claimed “the drug testing is still ongoing.” Supplement to Petition for 

Mandamus (Filed January 27, 2015). Neither the Petition nor the Supplemental 

Petition of Mandamus provided this court with the Affidavit attached to the 

Department’s petition, and neither acknowledged the facts presented at the subject 

hearing as well as the obvious reference to facts from the affidavit during the 

hearing. 

On January 29 2015, this court requested a response to Ms. Marks’ pro se 

petition within 30 days. Prior to the responsive date, Ms. Mark’s second attorney, 

Steven Poock, filed a document entitled “Second Supplemental Petition for Writ of 

Mandamus.” Essentially, it requested that this court order the judge to vacate the 

orders in the case, dismiss the Department’s petition, declare the procedures 

violated law and direct the judge to follow the law. 

In the meantime, the Department filed notice of non-suit, and on February 

17, 2015, the court dismissed the Department’s petition. On March 2, 2015, the 

Department filed a Mandamus Record that included the non-suit order as well as 

the material documents and record that were omitted from the record presented by

Relator with the Petition for Mandamus. See MR 8-9; MR 2 & 11.
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On March 5, 2015, this court entered an order expressing that it read the 

Department’s mandamus record and concluded it appeared there no longer was a 

controversy over which mandamus could apply. The court, therefore, asked for a 

response within 14 days.

On March 11, 2015, Ms. Marks, through her attorney, responded to this 

court’s order and claimed that this court retained jurisdiction, because Ms. Marks 

filed a counterclaim for affirmative relief under Chapter 105 of the Civil Practice 

& Remedies Code against the Department, and claimed mandamus relief would be 

necessary if the Department ever sought an order for drug testing again. Ms. 

Marks also filed an objection to the affidavit filed with the Department’s petition 

and affirmatively stated “this exhibit 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.” Relator’s Objection to Exhibit MR-2 p. 1. It 

was further claimed that “Counsel for Kimberly Marks was completely unaware of 

the affidavit until it was filed with the appellate court.” Id.

2. Kimberly Marks lacks a meritorious basis to object to the affidavit

filed with the trial court in this mandamus proceeding when she

never objected that she was not served the affidavit before or during 

the hearing to which this mandamus relates, and the affidavit was 

clearly referenced at the subject hearing, and well as in the petition 

she answered. 

For the first time, long after the hearing that resulted in the order Relator 

complains about, Relator files an “objection” to the Affidavit that was filed in the 
8

trial court and expressly incorporated as part of Department’s petition by language 

in the first paragraph of the Department’s petition. MR-2 p. 1. Relator does not 

cite any authority for bringing an “objection” for the first time on appeal, and the 

undersigned knows of no legal basis to do so. In addition, Tex. R. App. P. 33.1 

clearly requires complaints be first presented to the trial court first before they are 

urged to the appellate court. Therefore, the undersigned attorney knows of no 

meritorious basis for this court to review or grant Relator’s claim.

Moreover, it seems somewhat disingenuous considering Relator filed her 

mandamus petition to challenge the trial court’s ruling from a hearing in which the 

affidavit was clearly referenced during the hearing, and Relator never included that 

hearing or the affidavit in her Mandamus Record. See MR-11. The Department 

had to request it and include it. Consequently, her objection kind of emphasizes 

that Relator acted in bad faith, as described in Tex. R. App. P. 52.11(d), “because 

of the omission of obviously and important and material evidence or documents.” 

Not only was the subject hearing that was the basis of the order she complained 

about in this proceeding omitted from Relator’s Mandamus Record but so was the 

Affidavit which was referenced at the hearing and in the petition which Ms. Marks 

answered. This court should, therefore, reject this complaint as frivolous and 

dismiss and/or deny it.
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3. Relator’s claim for mandamus relief is moot.

The Department disagrees with Relator’s position that there is still a live 

controversy entitled to mandamus relief. In this mandamus proceeding, besides 

failing to provide this court with the relevant evidentiary facts admitted in 

connection with the order Relator complained about to this court, Relator did not 

provide this court with a copy of the order that non-suited the Department’s suit. 

That is significant, because the non-suit mooted Relator’s claims for mandamus 

relief and established there is no live controversy subject to review by this court.

A case becomes moot when no judiciable controversy continues to exist 

between the parties. Heckman v. Williamson County, 369 S.W.3d 137, 162 (Tex. 

2012). In this case, when the original pro se Petition for Mandamus was filed, 

Relator claimed she there was a live controversy from which she needed 

declarations about the invalidity of the trial court’s order and claimed that “Drug 

testing is still ongoing,” Petition for Mandamus Supplement to Petition for Writ of 

Mandamus (filed 1/27/15). However, since that time, she admitted she submitted 

to a drug test and the record establishes the Department non-suited and no longer 

maintains a suit seeking any orders against Ms. Marks. Consequently, there is no 

live judiciable controversy from which this court can issue an order. As explained 

by this court in Johnson v. Texas Serenity Academy, Inc., No. 01-14-00438-Cv, 

2015 WL 1135947 (Tex. App.―Houston [1st Dist.] 2015, no pet. h.), once a final 
10

order is rendered in a case, temporary orders become inoperative and “the issue of 

its validity is moot.” Id. *4. 

Also, the request for declaratory directives to the trial court as described in 

the supplemental petitions filed in this mandamus would clearly amount to 

impermissible advisory opinions. See Nat’l Collegiate Athletic Ass’n v. Jones,1 

S.W.3d 83, 86 (Tex. 1999). Relator’s response to this court claims this court has 

authority to consider her claims for advisory opinions based on the exception 

announced in Williams v. Lara, 52 S.W. 3d 171, 184 (Tex. 2000) of “capable of 

repetition, yet evading review.” However, as explained in that case, that exception 

only applies if “a reasonable expectation exists that the same complaining party 

will be subjected to the same action again.” Id. Because the Department no longer 

maintains a suit to seek orders for services by Relator, any suggestion that it will 

be sought in the future is merely speculative. Consequently, there is no proof of 

the capable-of-repetition standard provided under the mootness doctrine. 

In addition, Relator acknowledges in her most recent supplementation to this 

court that she maintains an action for damages against the Department under 

Chapter 105 of the Family Code. That chapter permits damages against the State 

under a procedure in which the party proves the agency sought an action that was 

frivolous, unreasonable or without foundation. See Tex. Civ. Prac. & Rem. Code 

§105.003 (West 1998). Those findings are essentially the same relief that Relator 
11

wants in the form of declarations from this court. Consequently, this circumstance 

does not warrant extraordinary mandamus relief. Mandamus relief is only 

available when a relator cannot obtain adequate remedy on appeal. In re Ford 

Motor Co., 442 S.W.3d 265, 269 (Tex. 2014). Relator has adequate remedies at 

trial, which may be challenged through the regular appeal process. Extraordinary 

relief is not warranted and Relator provides no basis from which to conclude that 

extraordinary relief is required in this circumstance. This court should, therefore, 

dismiss and/or deny the mandamus proceeding.

PRAYER

For these reasons, the Department asks that this court deny the request for 

objections to the affidavit filed in the trial court and included in the mandamus 

record and further requests that this court deny and/or dismiss the mandamus 

petition and for such other and further relief to which the Department may be

entitled in law or in equity.

Respectfully submitted,

VINCE RYAN

County Attorney (#99999939)

By: /s/ Sandra D. Hachem

Sandra D. Hachem

State Bar #08667060

Assistant County Attorney

SBN 08667060

1019 Congress, 17th Floor

Houston, Texas 77002
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Phone: (713) 274-5293

Fax: (713) 437-4700

ATTORNEY FOR REAL PARTY

IN INTEREST

DEPARTMENT OF FAMILY &

PROTECTIVE SERVICES,

CERTIFICATION OF FACT STATEMENTS

The Department of Family & Protective Services’ Attorney of Record, 

Sandra Hachem, certifies that she has reviewed the foregoing response concluded 

that every factual statement therein is supported by competent evidence included in 

the Mandamus Records filed in this proceeding.

/s/ Sandra Hachem

SANDRA HACHEM

CERTIFICATE OF SERVICE

This is to certify that on this 19th day of March, 2014, a true and correct 

copy of the foregoing motion was served on the below listed parties as follows:

To Relator, Kimberly Marks by and through her lead counsel, Steven Poock, 

by email at: spoock@juno.com 

Also on this same date, a true and correct copy of the foregoing notice was served 

on the below listed parties by first class mail, properly addressed with proper 

postage, as follows:

Respondent, 

Honorable Lisa Millard

Harris County Courthouse

310th Family Court

201 Caroline, 15th Floor

Houston, Texas 77002
13

Interested Party 

Damon Wayne Marks

1008 Railroad, 

Thornton, Texas 76687

/s/ Sandra Hachem

Sandra Hachem

Assistant County Attorney