Texas Child Protection Law Bench Book

2024 version: As effective October 1, 2024

B. Probable Cause

Probable cause is most often used in criminal cases and applies in the Family Code when DFPS is seeking orders in aid of an investigation. Courts have not defined probable cause in relation orders in aid of an investigation but in the criminal context probable case is defined both in relation to a warrantless seizure of evidence and in the application for a warrant to search for evidence.

For a warrantless search, Texas courts have defined probable cause as “when reasonably trustworthy facts and circumstances within the knowledge of the officer on the scene would lead a man of reasonable prudence to believe that the instrumentality . . . or evidence of a crime will be found.” Igboji v. State, 666 S.W.3d 607, 613.

In the context of an application for a search warrant, Texas courts have defined probable cause as “if the facts contained within the four corners of the affidavit, and the reasonable inferences drawn therefrom, justify the magistrate's conclusion that the object of the search is probably on the premises at the time of the issuance.” Castillo v. State, 1998 WL 484617 at 1.

This burden of proof applies to:

•   Hearing for an order in aid of investigation admission by DFPS to the home, school, or other place where the child may be for an interview, examination, and investigation, or an order to release records by the parent, or to order a medical, psychological, or psychiatric examination of the child. The court must find probable cause that the request is necessary to protect a child from abuse or neglect. Tex. Fam. Code § 261.303(b)(2) and (c).