Court of Appeals of Texas, Third District, Austin
In re R. R.
PROCEEDING FROM COMAL COUNTY
Justices Puryear, Field, and Bourland
has filed a petition for writ of mandamus complaining of an
order signed by the district court stating that it will only
review the record from a hearing held before an associate
judge, rather than hearing live testimony. See Tex.
R. App. P. 52; see also Tex. Fam. Code §§
201.015, .2042. Having reviewed the petition, the record, and
the response provided by the real party in interest, the
Texas Department of Family and Protective Services, we
conditionally grant the petition for writ of mandamus.
See Tex. R. App. P. 52.8(c).
and Procedural Summary
February 2017, the Department sought emergency custody over
relator's son, "Dustin, " who was about
seven months old at the time. The Department alleged that
relator brought Dustin to an emergency room because she
noticed his leg was swollen and that the doctors determined
that the child had fractures in his right femur and left
tibia, as well as "numerous other fractures in various
stages of healing, " including rib fractures and
fractures in his shoulder blade and clavicle. The doctors
contacted the Department because they suspected physical
abuse, and relator gave several possible explanations for the
child's injuries, including having his legs caught
between the slats of his crib, falling from the bed to the
floor, or having his leg caught in a walker. The cause was
referred to the associate judge for a hearing on aggravated
circumstances, which allows a trial court to waive the
requirement of a service plan or to attempt to reunify the
family and to accelerate the trial schedule. See
Tex. Fam. Code § 262.2015(a). The associate judge held a
hearing, at which several witnesses testified, and on August
11, she issued an order determining that relator had
subjected Dustin to aggravated circumstances, stopping all
visitation between relator and her child immediately, and
waiving the requirement of a service plan or reasonable
reunification efforts. Relator filed a request for a de novo
hearing as to (1) the finding of aggravated circumstances,
(2) whether relator's expert witness should be allowed to
provide expert testimony,  (3) whether Dustin should be allowed to
travel for medical testing, and (4) whether he should be
placed with his maternal grandparents while the cause was
pending. The Department objected, arguing among other things
that the district court should only consider the transcript
from the associate judge's hearing. The district court
held a hearing on the issue and signed an order stating that
it would limit its consideration to the transcript from the
associate judge's hearing. Relator then filed her
petition for writ of mandamus.
family code provides that a trial court may refer to an
associate judge "any aspect of a suit over which the
court has jurisdiction" under the family code.
Id. § 201.005. When a matter is referred to an
associate judge, the associate judge may conduct a hearing,
hear evidence, make findings of fact, and recommend an order
to be rendered. Id. § 201.007; see also
id. § 201.204 (addressing powers of associate judge
in child-protection case). When an associate judge makes a
recommendation or temporary order, any party may request a
"de novo hearing before the referring court, "
specifying the issues that will be presented to the referring
court. Id. § 201.015(a), (b). In the de novo
hearing, which is mandatory when properly requested,
"the parties may present witnesses on the issues
specified in the request for hearing, " and the
referring court "may also consider the record from the
hearing before the associate judge. " Id.
argues that the district court improperly refused to hold a
de novo hearing in which she was permitted to call witnesses
to testify, instead confining its review to only the evidence
presented before the associate judge. Before the district
court and in its response in this proceeding, the Department
argues that the district court was not required to
"force the State to recall the same witnesses to elicit
testimony and face cross-examination" and instead could
simply review the record from the hearing before the
associate judge and consider the issues raised by relator in
light of that evidence alone. We agree with relator that the
district court's decision to consider only the transcript
from the earlier hearing was an abuse of discretion.
explained that a de novo hearing "is a new and
independent action on those issues raised" in the
request for a hearing. Attorney General v. Orr, 989
S.W.2d 464, 467-68 (Tex. App.-Austin 1999, no pet.) (also
stating that request for de novo hearing breaks continuity in
process begun before associate judge "and begins an
entirely new process"); see In re A.A.T., No.
13-16-00269-CV, 2016 WL 8188946, at *2 (Tex. App.-Corpus
Christi Aug. 25, 2016, no pet.) (mem. op.) ("judicial
review by trial de novo is not a traditional appeal, but a
new and independent action characterized by all the
attributes of an original civil action, only to the extent of
the challenged finding-that is, the effect of the appeal is
to begin again only as to the issues appealed"); In
re A.B., No. 04-11-00741-CV, 2012 WL 2126887, at *1
(Tex. App.-San Antonio June 13, 2012, no pet.) (mem. op.)
("trial de novo is a new and independent action
on those issues raised"); In re N.T., 335
S.W.3d 660, 669 (Tex. App.-El Paso 2011, no pet.) (same);
Chacon v. Chacon, 222 S.W.3d 909, 914 (Tex. App.-El
Paso 2007, no pet.) (same); In re E.M., 54 S.W.3d
849, 852 (Tex. App.-Corpus Christi 2001, no pet.) (quoting
Orr). Because a de novo hearing is a new and
independent action, "the party with the burden of proof,
having prevailed before the associate judge, must still carry
[its] burden in a de novo hearing before the referring
court." In re N.T., 335 S.W.3d at 669;
Orr, 989 S.W.2d at 467.
statute further provides that in the de novo hearing, the
referring court may consider the transcript from the hearing
before the associate judge, but also that "the parties
may present witnesses on the issues specified in the
request for hearing." Tex. Fam. Code § 201.015(c)
(emphasis added). In our review of cases relating to de novo
hearings from determinations by associate judges, we have
found no cases in which a referring court was permitted to
refuse to allow the parties to present witnesses in the de
In re R.S.-T., cited by the Department, the
referring court seems to have limited some of the testimony
at the de novo hearing, stating that "pursuant to
standard protocol, testimony contained within the statement
of facts would not be repeated during the de novo
hearing." 522 S.W.3d 92, 106 (Tex. App.-San Antonio
2017, no pet.). However, several witnesses who testified
before the associate judge were recalled to testify in the de
novo hearing, both by the Department and by the father.
Id. at 106-08. Further, the extent and propriety of
any limitations was not discussed by our sister court, which
was asked only whether the trial court had "'cut
off' earlier proceedings and prevented consideration of
testimony heard before the associate judge."
Id. at 108. Our sister court noted that
"[g]enerally, when a matter is heard de novo, the trial
court is limited to the evidence presented during the de novo
hearing" but that the family code also permitted a
referring court to consider the record from the earlier
hearing, and that the father had not objected to the
introduction of the transcript, concluding that section
201.015 gave the referring court "the authority to
consider the record of the hearing before the associate
judge." Id. Thus, R.S.-T. is not
particularly helpful in our analysis.
review reflects that, as a rule, our courts treat the de novo
hearing as a new trial, in which the parties are permitted to
present witnesses to testify as to the issues raised in the
hearing request. See, e.g., Mayorga v.
Mayorga, No. 03-13-00783-CV, 2015 WL 2214593, at *1-2
(Tex. App.-Austin May 8, 2015, no pet.) (mem. op.); In re
Young, No. 05-15-00024-CV, 2015 WL 1568835, at *2-3
(Tex. App.-Dallas Apr. 7, 2015, orig. proceeding) (mem. op.);
In re J.L.S., No. 04-12-00011-CV, 2012 WL 5354796,
at *1 (Tex. App.-San Antonio Oct. 31, 2012, no pet.) (mem.
op.); In re A.B., 2012 WL 2126887, at *1-2.
Occasionally, the parties decide not to call witnesses to
testify at the de novo hearing, relying on the evidence
produced in the hearing before the associate judge alone.
See, e.g., In re N.M., No. 07-16-00439-CV,
2017 WL 1908588, at *2 (Tex. App.-Amarillo May 9, 2017, pet.
denied) (mem. op.).
the clear language of section 201.015, the referring court
must hold a hearing in which the parties may present
witnesses, should they choose to do so.See Tex.
Fam. Code § 201.015(c). We have found no cases that
could support a conclusion that a referring court may bar the
parties from calling witnesses at the de novo ...