In Re D.D. v. the State of Texas

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-25-00335-CV
___________________________

IN RE D.D., Relator

Original Proceeding
325th District Court of Tarrant County, Texas
Trial Court No. 325-741045-23

Before Sudderth, C.J.; Birdwell and Walker, JJ.
Memorandum Opinion by Justice Birdwell
MEMORANDUM OPINION

Relator D.D. (Father1) filed a pro se petition for writ of mandamus requesting

that we order the trial court to vacate its May 27, 2025 order discharging his

appointed appellate counsel based on a finding that Father was not indigent. We

conditionally grant Father’s petition for writ of mandamus.

I. Background

In 2023, the Texas Department of Family and Protective Services filed a

petition to terminate Father’s parental rights to his son, and the trial court—after

finding Father indigent—appointed counsel to represent Father. 2 Later, Maternal

Grandmother filed a petition in intervention.

After a jury trial, the trial court appointed Maternal Grandmother as the child’s

sole managing conservator and Father as a possessory conservator. The trial court

then appointed appellate counsel to represent Father in his appeal, and counsel filed a

notice of appeal on Father’s behalf. See In re Z.D., No. 02-25-00114-CV (Tex. App.—

Fort Worth filed Mar. 12, 2025).

1
Because the underlying case involves child custody, we identify family
members by their relationship to the child. See Tex. Fam. Code Ann. § 109.002(d);
Tex. R. App. P. 9.8(b)(2).
2
An appellate court may—and we do—take judicial notice of its own records in
a related proceeding involving the same or nearly the same parties. In re C.B., No. 02-
25-00026-CV, 2025 WL 728233, at *2 n.6 (Tex. App.—Fort Worth Mar. 6, 2025, orig.
proceeding [mand. denied]) (mem. op.).

2
After Father’s appointed appellate counsel filed his opening brief in the

pending appeal, but before the Department and Maternal Grandmother filed their

responsive briefs, the trial court conducted a hearing on its own motion and on the

motion of Maternal Grandmother reconsidering the previously determined indigency

of Father and thereby the continued appointment of his appellate counsel. As a result

of the hearing, the trial court entered the order made the subject of Father’s petition,

finding that Father was no longer indigent and discharging his appointed appellate

counsel. Summarily deprived of his appointed appellate counsel, Father petitioned

this court pro se to have the trial court’s order vacated and his appointed appellate

counsel reinstated by writ of mandamus. Father’s petition is the first notice this court

received concerning the ordered discharge of his appointed appellate counsel in his

pending appeal. 3

We asked the Department, Maternal Grandmother, and Father’s appointed

appellate counsel (who, not having filed a motion to withdraw based on the trial

court’s order, remained Father’s counsel of record before this court) to file responses.

Specifically, we noted that the Texas Family Code provided that a parent’s indigency

may be reconsidered “on the motion of the parent, the attorney ad litem for the

3
When receiving notice that the trial court had removed Father’s appointed
appellate counsel while his appeal was pending, we questioned whether the trial court
had infringed on our jurisdiction. See Tex. Gov’t Code Ann. § 22.221(a) (“Each court
of appeals or a justice of a court of appeals may issue a writ of mandamus and all
other writs necessary to enforce the jurisdiction of the court.”). We do not reach that
issue in this opinion.

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parent, or the attorney representing the governmental entity,” see Tex. Fam. Code

Ann. § 107.013(e), and that the indigency order about which Father complained was

based on the trial court’s and Maternal Grandmother’s motions. As requested, the

Department, Maternal Grandmother, and Father’s appointed appellate counsel filed

responses.

II. Discussion

A. Standard of Review

Mandamus is an extraordinary remedy. In re Acad., Ltd., 625 S.W.3d 19, 25

(Tex. 2021) (orig. proceeding). A party seeking mandamus relief must show both that

the trial court clearly abused its discretion and that it has no adequate remedy by

appeal. Id.; In re Allstate Indem. Co., 622 S.W.3d 870, 875 (Tex. 2021) (orig.

proceeding).

A trial court abuses its discretion when it acts arbitrarily, unreasonably, or

without reference to guiding principles. Allstate Indem. Co., 622 S.W.3d at 875. A trial

court has no discretion in determining what the law is or when applying the law to the

facts. See In re Geomet Recycling LLC, 578 S.W.3d 82, 91–92 (Tex. 2019) (orig.

proceeding).

B. Applicable Law

Father’s petition turns on three provisions in the Texas Family Code—Section

101.024(a), Section 107.013(e), and Section 107.016(2)(A)–(C).

Section 101.024(a) defines who qualifies as a parent:

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“Parent” means the mother, a man presumed to be the father, a man
legally determined to be the father, a man who has been adjudicated to
be the father by a court of competent jurisdiction, a man who has
acknowledged his paternity under applicable law, or an adoptive mother
or father. Except as provided by Subsection (b), the term does not
include a parent as to whom the parent–child relationship has been
terminated.

Tex. Fam. Code Ann. § 101.024(a).

Once a trial court determines that a parent is indigent, Section 107.013(e) limits

who may later ask the trial court to reconsider that determination:

A parent who the court has determined is indigent for purposes of this
section is presumed to remain indigent for the duration of the suit and
any subsequent appeal unless the court, after reconsideration on the
motion of the parent, the attorney ad litem for the parent, or the
attorney representing the governmental entity, determines that the
parent is no longer indigent due to a material and substantial change in
the parent’s financial circumstances.

Id. § 107.013(e).

And after the trial court appoints an attorney to represent a parent, Section

107.016(2)(A)–(C) sets out the duration of that appointment:

In a suit filed by a governmental entity in which termination of the
parent–child relationship or appointment of the entity as conservator of
the child is requested:

(1) . . .

(2) an attorney appointed under this subchapter to serve as an attorney
ad litem for a parent or an alleged father continues to serve in that
capacity until the earliest of:

(A) the date the suit affecting the parent–child relationship is
dismissed;

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(B) the date all appeals in relation to any final order terminating
parental rights are exhausted or waived; or

(C) the date the attorney is relieved of the attorney’s duties or
replaced by another attorney after a finding of good cause is
rendered by the court on the record.

Id. § 107.016(2)(A)–(C).

C. Analysis

The Department argues that neither the trial court nor Maternal Grandmother

was authorized under Section 107.013 to move to have Father’s indigency

reconsidered and asserts that although no longer being indigent might qualify as good

cause under Section 107.016, the trial court used unauthorized means under Section

107.013 to reach that finding. The Department concludes that the trial court’s order

discharging Father’s appointed appellate counsel was thus not authorized under either

Section 107.013 or 107.016 of the Texas Family Code.

Like the Department, Father’s appointed appellate counsel maintains that

under Section 107.013, neither the trial court nor Maternal Grandmother could

properly move to have Father’s indigency reconsidered. But unlike the Department,

Father’s counsel contends that Section 107.016 is not relevant because the trial court

proceeded under Section 107.013.

As for Maternal Grandmother, she concedes that neither she nor the trial court

was a proper party under Section 107.013 to file a motion to reconsider Father’s

indigency. But Maternal Grandmother argues that Father’s petition should

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nevertheless be denied because Father failed to provide the reporter’s record of the

indigency hearing and because the trial court might have found good cause under

Section 107.016. According to Maternal Grandmother, Father failed to provide an

adequate record. See Tex. R. App. P. 52.7.

Here, the trial court’s order is based strictly on its finding that Father was no

longer indigent. The trial court never made a good cause finding. We hold that the

trial court abused its discretion because Section 107.013(e) does not authorize either

the trial court or Maternal Grandmother to move to reconsider Father’s indigency.

See Tex. Fam. Code Ann. § 107.013(e); Geomet Recycling LLC, 578 S.W.3d at 91.

Although Maternal Grandmother was appointed managing conservator, she is not a

“parent” under the Texas Family Code. See Tex. Fam. Code Ann. § 101.024(a).

Regarding the absence of the reporter’s record of the indigency hearing,

because the hearing was not authorized under Section 107.013(e) and because the trial

court relied strictly on whether Father was still indigent, we hold that any evidence

presented at the hearing is irrelevant to the resolution of Father’s petition. See Tex. R.

App. P. 52.7(a)(2). See generally In re Ooida Risk Retention Grp., Inc., 475 S.W.3d 905, 911

(Tex. App.—Fort Worth 2015, orig. proceeding) (holding absence of reporter’s record

of hearing not dispositive when trial court heard no evidence).

And because we are issuing our opinion in Father’s appeal contemporaneously

with this opinion, we hold that Father would not have an adequate remedy by appeal.

If the error is not corrected now, Father would be deprived of appellate counsel at

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this critical stage. See Allstate Indem. Co., 622 S.W.3d at 875; In re P.M., 520 S.W.3d 24,

26–27 (Tex. 2016) (“[T]he right to counsel is as important in petitioning this Court for

review, and in our considering the issues, as in appealing to the court of appeals.”); In

re Dep’t of Fam. & Protective Servs., 273 S.W.3d 637, 645 (Tex. 2009) (orig. proceeding)

(“In cases involving child custody, ‘[j]ustice demands a speedy resolution,’ and we

have acknowledged that appeal is ‘frequently inadequate to protect the rights of

parents and children.’”). See generally In re A. J., 559 S.W.3d 713, 721 (Tex. App.—

Tyler 2018, no pet.) (holding that depriving parent of counsel during critical stages of

the proceedings denied parent a meaningful opportunity to participate in the

proceedings); In re V.L.B., 445 S.W.3d 802, 807 (Tex. App.—Houston [1st Dist.]

2014, no pet.) (op. on reh’g) (“When an indigent parent seeks representation before a

critical stage of the proceedings, and the trial court nonetheless proceeds with that

stage, the delay may render the ultimate appointment a toothless exercise and

irreparably impair the parent’s ability to defend the case or regain custody of the

child.”).

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III. Conclusion

Accordingly, we conditionally grant Father’s petition for writ of mandamus.

The trial court is ordered to vacate its May 27, 2025 order discharging Father’s

appointed appellate counsel. Our writ will issue only if the trial court fails to comply.

/s/ Wade Birdwell

Wade Birdwell
Justice

Delivered: July 31, 2025

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