                                                                              ACCEPTED
                                                                         01-15-00087-CV
                                                               FIRST COURT OF APPEALS
                                                                       HOUSTON, TEXAS
                                                                   3/11/2015 11:31:03 AM
                                                                     CHRISTOPHER PRINE
                                                                                  CLERK

                 No. 01-15-00087-CV

                   ______________                       FILED IN
                                                 1st COURT OF APPEALS
                                                     HOUSTON, TEXAS
                     IN THE                      3/11/2015 11:31:03 AM
               COURT OF APPEALS                  CHRISTOPHER A. PRINE
                    FOR THE                               Clerk
            FIRST DISTRICT OF TEXAS
                    at Houston
                 ______________

                       IN RE
                KIMBERLY MARKS
                       Relator
                 _________________


                                th
Original Proceeding from the 310 Judicial District Court
                 Harris County, Texas
                 Cause No. 2013-73339


  RELATOR’S OBJECTION TO EXHIBIT MR-2




                    Steven D. Poock
              State Bar Number 00794473
                     P.O. Box 984
               Sugar Land, Texas 77487
                  Tel. (281) 277-7678
                  Fax (281) 277-7679
                   spoock@juno.com

      Attorney for Relator, KIMBERLY MARKS
                                   No. 01-15-00087-CV


KIMBERLY MARKS                                §         IN THE FIRST
  Relator                                     §
                                              §        COURT OF APPEALS
    v.                                        §
                                              §         HOUSTON, TEXAS
THE DEPARTMENT OF FAMILY &                    §
PROTECTIVE SERVICES                           §
  Real Party in Interest                      §


                   RELATOR’S OBJECTION TO EXHIBIT MR-2


TO THE HONORABLE JUSTICE OF SAID COURT:


         Relator Kimberly Marks Objects to the Department’s Exhibit MR-2, and in

support of said motion shows:

         1.   Kimberly Marks objects to Exhibit MR-2 attached to First Supplemental

Mandamus Record of Real Party in Interest1.

         2.   Exhibit MR-2 was not served on Kimberly Marks, was never served,

presented or made available to Counsel, was never offered as evidence, and was never

admitted as evidence. Moreover, an affidavit cannot be cross-examined, and counsel had

no opportunity to develop any counter-evidence as the affidavit does not appear on the

court’s website, it was not available to counsel, and it was not offered at the hearing.

Counsel for Kimberly Marks was completely unaware of the affidavit until it was filed

with the appellate court.


1
 The First Supplemental Mandamus Record of Real Party in Interest was the initial Record filed
by the Department.
         3.      Assuming the Department received an anonymous complaint, the proper

response, as detailed in Marks’ brief, is to afford Kimberly Marks her constitutionally

protected rights by first conducting an investigation (Chapter 261), then filing a SAPCR

(Chapter 262), obtaining a judicial finding of abuse or neglect, and then, upon a finding

of abuse or neglect, it would be appropriate for the Department to move the court for

Kimberly Marks to engage in child welfare services (Chapter 264). In the present case,

Kimberly Marks was dispossessed of her right to request a jury, was not afforded a full

adversarial hearing with 45 days notice, and the Department never obtained a finding of

abuse or neglect. Instead, with seven days notice, virtually no evidence, and nearly no

process, Relator lost her freedom and many of her constitutional rights, and was

subjected to invasive testing and being held in the courtroom against her will.

         4.      The right to forty-five days notice of trial is a constitutionally protected

right:

         Rule 245 of the rules of civil procedure provides that a court may on its own
         motion set a contested case for first setting for trial, with reasonable notice to the
         parties of not less than forty-five days. See Tex.R.Civ.P. 245. This notice is
         mandatory and involves the constitutionally protected right of due process. See
         Transoceanic Shipping Co.. Inc. v. Gen'l Universal Sys., Inc., 961 S.W.2d 418,
         420 n. 2 (Tex.App.-Houston [1st Dist.] 1997, no writ).
Burress v. Richardson, 97 S.W.3d 806 (Tex.App.- Dallas 2003, no pet.)



                                            PRAYER

         For the reasons listed above, Relator respectfully requests this Court to SUSTAIN

Relator’s objection to the Department’s Exhibit MR-2.
                                               Respectfully Submitted,

                                                  /s/ Steven Poock
                                               ___________________
                                               Steven Poock
                                               P.O. Box 984
                                               Sugar Land, Texas 77487
                                               State Bar No. 00794473
                                               spoock@juno.com
                                               (281) 242-9700 Telephone
                                               (281) 242-8340 Facsimile


                                                  /s/ Tom Sanders
                                               ___________________
                                               Tom Sanders
                                               P.O. Box 1860
                                               Sugar Land, Texas 77487
                                               State Bar No. 17609900
                                               Tcsanders76@yahoo.com
                                               (281) 242-9700 Telephone
                                               (281) 242-8340 Facsimile

                                               ATTORNEYS FOR RELATOR
                                               KIMBERLY MARKS




                            CERTIFICATE OF SERVICE

    I certify that a copy of the foregoing has been served on the parties listed below on
this the 11th day of March, 2015.

                                                        /s/ Steven Poock
                                                      _______________________
                                                      Steven Poock
Respondent:               The Honorable Judge Lisa Millard
                          Presiding Judge of the 310th Judicial District Court
                          201 Caroline, 13th Floor
                          Houston, TX 77002


Real Party in Interest:   Damon Wayne Marks
                          1008 Railroad
                          Thornton, TX 76687


Real Party in Interest:   Department of Family and Protective Services
Counsel                   Sandra Hachem
                          Sr. Assistant County Attorney
                          State Bar No. 08667060
                          1019 Congress, 17th Floor
                          Houston, Texas 77002
                          Sandra.Hachem@cao.hctx.net
                          (713) 274.5293 (telephone)
                          (713) 437.4700 (facsimile)
