Texas Child Protection Law Bench Book

2024 version: As effective October 1, 2024

Service of Citation

A. Service of Citation

In lawsuits filed by DFPS, the agency is responsible for obtaining service of citation containing the original petition and providing notice of trial settings and other events during the pendency of the legal case. Citation on the filing of an original petition in a SAPCR shall be issued and served “as in other civil cases.” Tex. Fam. Code § 102.009(c). However, most courts do not require service on all those entitled to service before proceeding with the Adversary Hearing. The court may proceed with temporary orders prior to any required service by publication. Tex. Fam. Code § 262.201(o).

1. Parties to be Served

DFPS is responsible for obtaining service of citation on the following parties:

•   Each parent (including an alleged father), unless the parent's rights are terminated, the alleged father executed a waiver of interest in the child, or a parent signs a waiver of service;

•   A managing or possessory conservator, guardian, or other person with court-ordered access to the child;

•   A person required by law or by order to provide for the support of the child;

•   A prospective adoptive parent with standing or a conservator designated in an affidavit of relinquishment; and

•   The Texas Attorney General's Office or any other child-support agency (if child-support payments may be affected). See Tex. Fam. Code § 102.009(a); CPS Policy Handbook § 5230 Service by Citation.[37]

Citation may be served on any other person who has or who may assert an interest in the child. Tex. Fam. Code § 102.009(b).

Service must be accomplished via the method prescribed in Tex. R. Civ. P. 106 and by a person authorized pursuant to Tex. R. Civ. P. 103.

2. DFPS Must Make a Diligent Effort to Locate Parent and Relatives

If a parent, as defined by Tex. Fam. Code § 160.102(11), of the child has not been personally served in a suit in which DFPS seeks termination, DFPS must make a diligent effort to locate that parent. Tex. Fam. Code § 161.107(b). If a parent has not been personally served and cannot be located, DFPS shall make a diligent effort to locate a relative of the missing parent to give the relative an opportunity to request appointment as the child's managing conservator. Tex. Fam. Code § 161.107(c).

If a missing parent is believed to be living in a foreign country, DFPS must ask family members in the United States for contact information, contact the consulate of that country, and request assistance in locating the parent. If a missing parent is believed to be living in Mexico, DFPS must follow policies outlined in § 5233.61 of the CPS Policy Handbook. See CPS Policy Handbook § 5233.33 Searching for Residents of a Foreign Country.[38]

3. Relative Defined for Diligent Search Purposes

A relative means a parent, grandparent, adult sibling, or child. Tex. Fam. Code § 161.107(a)(2). If DFPS is not able to locate a missing parent or a relative of that parent and sufficient information is available concerning the physical whereabouts of the parent or relative, DFPS shall request the Office of the Attorney General to use the parental locater service to determine the location of the missing parent or relative. Tex. Fam. Code § 161.107(d).

DFPS shall be required to provide evidence to the court to show what actions were taken by DFPS in making a diligent effort to locate the missing parent and relative of the missing parent. Tex. Fam. Code § 161.107(e).

4. Citation by Publication and Diligent Search

Once DFPS has made the effort and has been unsuccessful, DFPS can file a Motion to Cite by Publication under Tex. R. Civ. P. 109.

Tex. R. Civ. P. 109 requires that before citation by publication can be issued by the clerk, the petitioner must file an affidavit of due diligence. That rule also requires the court trying the case to inquire into the sufficiency of the diligence exercised in attempting to ascertain the residence or whereabouts of the known parent who cannot be located, before granting any judgment on such service.

5. Waiver of Citation

Tex. Fam. Code § 102.0091 allows for waiver of citation. A party to a suit under Tex. Fam. Code Title 5 may waive the issuance or service of citation after the suit is filed by filing with the clerk of the court in which the suit is filed the waiver of the part acknowledging receipt of a copy of the filed petition. Tex. Fam. Code § 102.0091(a).

The party executing the waiver may sign the waiver using a digitalized signature. Tex. Fam. Code § 102.0091(b). The waiver must contain the mailing address of the party executing the waiver. Tex. Fam. Code § 102.0091(c).

Notwithstanding Tex. Civ. Prac. & Rem. Code § 132.001, the waiver must be sworn before a notary public who is not an attorney in the suit, unless the party executing the waiver is incarcerated. Tex. Fam. Code § 102.0091(d). The Texas Rules of Civil Procedure do not apply to a waiver executed under Tex. Fam. Code § 102.0091. Tex. Fam. Code § 102.0091(e).

6. Appearance by Party

A party may enter an appearance in open court in person, by attorney, or by a duly authorized agent. This appearance must be noted on the court's docket and entered on the record and has the same force and effect as if the party had been served with citation. Tex. R. Civ. P. 120. The filing of an answer also constitutes an appearance of a party and dispenses with the necessity for the issuance or service of citation on a party. Tex. R. Civ. P. 121.

7. Service of Process in a Foreign Country

The method of service to be used when a parent is found to be living in a foreign country is detailed in Tex. R. Civ. P. Rule 108a. There are several alternative methods listed including as provided by Tex. R. Civ. P. 106(a), and pursuant to the terms and provisions of any applicable international agreement.

B. Notice

DFPS is responsible for providing service of citation and notice of several matters relating to agency activities relating to a lawsuit (investigations, removals, review hearings, etc.). While the same word “notice” is often used for both, it is important to distinguish between service and notice. The Texas Family Code requires that DFPS provide notice to parents of the investigation and removal of a child, as well as notice to relatives of the removal, and notice to parties, relatives, caregivers, and child if age 10 or older, of all review hearings. These notice obligations, however, do not need to be executed in accordance with the rules governing service under the Texas Rules of Civil Procedure. Tex. Fam. Code § 263.0021 provides several methods of notice available to DFPS.

1. The Right to Notice

The Petitioner, which is usually DFPS, must ensure that notice of the lawsuit is provided to those who are sued.

2. Methods of Providing Notice of Hearing

The requirements for citation are different from requirements for notice of motions or of particular hearings. Citation generally must be by personal service on the Respondent unless citation is waived by the Respondent, forfeited under the “paternity registry” process, or given by some form of substituted service, including citation by publication, as authorized by the Texas Rules of Civil Procedure.

Once citation is complete and a return of service is on file, notice may be served by delivering a copy to the party to be served, or the party's duly authorized agent or attorney of record, as the case may be, electronically through the electronic filing manager if the email address of the party or attorney to be served is on file with the electronic filing manager or in person, by mail, by commercial delivery service, by fax, by email, or by such other manner as the court in its discretion may direct.

Service by mail shall be complete upon deposit of the paper, enclosed in a postpaid, properly addressed wrapper, in a post office or official depository under the care and custody of the United States Postal Service. Service by telephonic document transfer after 5:00 p.m. local time of the recipient shall be deemed served on the following day. Notice may also be served by a party to the suit, an attorney of record, a sheriff or constable, or by any other person competent to testify. Tex. R. Civ. P. 21a.

3. Information Provided to Relatives and Certain Individuals; Investigation

When DFPS takes possession of a child under Tex. Fam. Code Chapter 262, DFPS shall provide information to each adult DFPS is able to identify and locate who:

•   Is related to the child within the fourth degree of consanguinity, as defined under Tex. Gov't Code Chapter 573;

•   Is an adult relative of the alleged father if DFPS has a reasonable basis to believe the alleged father is the child's biological father; or

•   Anyone who is identified as a potential relative or designated caregiver on the proposed Child Placement Resources Form. Tex. Fam. Code § 262.1095(a)(1).

DFPS may provide information to each adult DFPS is able to identify and locate who has a long-standing and significant relationship with the child. Tex. Fam. Code § 262.1095(a)(2).

The written notice must include:

•   A statement that the child is in the state's custody;

•   Options available for participation in the care and placement and support of the family;

•   Options that may be lost if the individual fails to timely respond;

•   The date, time, and location of a Hearing under Tex. Fam. Code Chapter 263, if applicable; and

•   Information regarding the procedures and timeline for a suit affecting the parent-child relationship under Tex. Fam. Code Chapter 262. Tex. Fam. Code § 262.1095(b).

DFPS is not required to provide information to a person who has criminal or family violence history. Tex. Fam. Code § 262.1095(c).

DFPS must use due diligence to identify and locate all individuals described by Tex. Fam. Code § 262.1095(a) within 30 days of the date DFPS files the SAPCR. In order to identify and locate individuals, DFPS shall seek information from each parent, relative, alleged father of the child, and the child in an age-appropriate manner. Tex. Fam. Code § 262.1095(d). The failure of a parent or alleged father to complete the Child Placement Resources Form does not relieve DFPS of its duty to seek information about persons under Tex. Fam. Code § 262.1095(d). Tex. Fam. Code § 262.1095(e).

4. Report Regarding Notification of Relatives

Tex. Fam. Code § 263.007 requires DFPS to provide the court with a report regarding their compliance with Tex. Fam. Code § 262.1095. The court should review this report to assess DFPS' diligent efforts. Tex. Fam. Code § 263.007.

5. Notice to Parents of Right to Counsel

Before commencement of the full Adversary Hearing, if an attorney has not already been appointed under Tex. Fam. Code § 107.013, the court must inform each parent not represented by an attorney of:

•   The right to be represented by an attorney; and

•   If a parent is indigent and appears in opposition to the suit, the right to a court-appointed attorney. Tex. Fam. Code § 262.201(c).

Tex. Fam. Code § 107.0141 allows the court to appoint an attorney for a parent whenever the SAPCR is filed, but if a parent's first appearance is at the Adversary Hearing and the parent requests the appointment of an attorney, then the court shall require the parent to complete and file with the court an affidavit of indigence. The court may consider additional evidence to determine whether the parent is indigent, including evidence relating to the parent's income, source of income, assets, property ownership, benefits paid in accordance with a federal, state, or local public assistance program, outstanding obligations, and necessary expenses and the number and ages of the parent's dependents. If the appointment of an attorney for the parent is requested, the court shall make a determination of indigence before commencement of the full Adversary Hearing. If the court determines the parent is indigent, the court shall appoint an attorney to represent the parent. Tex. Fam. Code § 262.201(d).

6. Foreign Consulates

When DFPS takes possession of a child who was born in another country who is not a U.S. citizen, DFPS must notice the foreign consul of the country of which the child is a citizen. See CPS Policy Handbook § 6715 Working with the Foreign Consulate.[39]

To notify a foreign consulate that DFPS has removed a child, the caseworker must:

•   Complete Form 2650, Letter to Foreign Consulates;

•   Send the completed form to the designated consulate by mail, return receipt requested, or by fax and include the confirmation notice when filing it with the court; and

•   Send a copy of the notice to the attorney representing DFPS.

Caseworkers should contact the DFPS Immigration Specialist for consular office contact information. CPS Policy Handbook § 6715.1 Giving Notice to a Foreign Consulate.[40]