Texas Child Protection Law Bench Book

2024 version: As effective October 1, 2024

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.