Texas Child Protection Law Bench Book
2023 version: As effective November 1, 2023
De Novo Hearing
Introduction
The presiding judge of each administrative judicial region can appoint a full-time or part-time associate judge to handle cases filed under Texas Family Code Subtitle E. Tex. Fam. Code § 201.201. Except as otherwise provided by Tex. Fam. Code Chapter 201, Subchapter C, Subchapter A applies to any associate judge appointed by a presiding judge to handle child protection cases filed under Texas Family Code Subtitle E, including all powers and duties. The Texas Family Code authorizes judges in civil proceedings to refer cases to associate judges appointed both under Texas Family Code Subchapters A and C to handle the disposition of a variety of case-related matters, including trials on the merits in termination of parental rights. Tex. Fam. Code § 201.005(a).
Referral to an associate judge is not binding on the parties, so if any party timely objects, the referring court must hear the trial on the merits or preside at a jury trial. Tex. Fam. Code § 201.005(b)-(c). Barring an objection, however, a Texas Family Code Chapter 201, Subchapters A or C associate judge may determine the merits in either a bench or a jury trial, subject to the parties' post-trial right to request a “de novo hearing” before the referring court, which must be heard within thirty days of a timely de novo request. Tex. Fam. Code § 201.015. A de novo hearing occurs when a party in a case heard before an associate judge requests that the referring court rehear specific issues ruled on by the associate judge.
A. Objection to Associate Judge
A party desiring a trial before the referring court rather than the associate judge need only to object to the associate-judge referral. The objection must be filed not later than the 10th day after the date the party receives notice that the associate will hear the trial. If an objection is filed, the referring court shall hear the trial on the merits or preside at a jury trial, if a jury demand has been timely made. Tex. Fam. Code § 201.005(c).
B. De Novo Hearings
Tex. Fam. Code § 201.015 applies to a request for a de novo hearing before the referring court for matters adjudicated by an associate judge appointed under Tex. Fam. Code Chapter 201, Subchapter A and C. When a case is referred to an associate judge for any authorized purpose, a party may request a de novo hearing before the referring court by filing a written request with the clerk of the referring court not later than the third working day after the date the party receives notice of the substance of the associate judge's ruling or order. Tex. Fam. Code § 201.015(a). In child welfare cases, the requesting party must also file the request with the referring court. Tex. Fam. Code § 201.2042(b). For de novo hearings requested in matters handled by associate judges appointed under Tex. Fam. Code Chapter 201, Subchapter C, the party requesting the de novo hearing must file notice with the clerk of the referring court as well as the court to ensure that the referring court judge is timely notified along with the clerk of the court. The referring court must conduct the de novo hearing within thirty days of the request. Tex. Fam. Code § 201.015(f). De novo hearings are limited to the specific issues stated in the de novo hearing request. Tex. Fam. Code § 201.015(b). See In re L.R., 324 S.W.3d 885, 890 n.5 (Tex. App.—Austin 2010, no pet.) (“[T]he de novo hearing before the referring court is limited to those issues raised in the hearing request.”).
Parties may present witnesses at the de novo hearing, and the referring court may consider the record from the hearing before the associate judge, including any charge to the jury and any verdict returned, if the matter was tried before a jury. Tex. Fam. Code § 201.015(c).
Although a party may request a de novo hearing before the referring court, a party is not entitled to demand a second jury if the order or proposed judgment reviewed by the referring court was the result of a jury trial presided over by the associate judge in the first instance. Tex. Fam. Code § 201.015(i).
C. De Novo Hearing vs. Trial De Novo
The Supreme Court of Texas held in the In the Interest of A.L.M.-F. case that neither Tex. Fam. Code § 201.015 nor any other provision of the Texas Family Code expressly confers a right to a jury trial in a de novo hearing.[5] The A.L.M.-F case distinguishes a De Novo Hearing and a Trial De Novo. A “trial de novo” is a new and independent action in the reviewing court with “all the attributes of an original action” as if no trial of any kind has occurred in the court below.[6] But a de novo hearing under Tex. Fam. Code Chapter 201 is not equivalent to a new trial as review by the referring court under Tex. Fam. Code § 201.015 is not entirely independent of the proceedings before the associate judge. Accordingly, the term “de novo hearing,” as used in Tex. Fam. Code Chapter 201, does not equate to a “trial de novo.” Rather, the term “de novo hearing” has meaning that is unique to the associate judge referral statutes and governed by the procedures specified in the authorizing statutes.[7] As stated above, de novo hearings are limited to the specific issues stated in the de novo hearing request. Tex. Fam. Code § 201.015(b).
D. Judicial Action on Associate Judge's Proposed Order or Judgment
Parties can forego their right to have their case decided by the referring court in two ways: a party can waive the right to a de novo hearing by executing a waiver prior to the hearing or trial before the associate judge, or post-hearing, the party can fail to or forego filing a request for a de novo hearing within the time required by statute. Thus, if a request for a de novo hearing before the referring court is not timely filed or the right to de novo hearing before the referring court is waived. For an associate judge hired by a district court, the referring court may adopt, modify, or reject the proposed order, hear further evidence, or recommit the matter. Tex. Fam. Code § 201.014(a). For Child Protection Court associate judges, the proposed order or judgment of the associate judge becomes the order of the referring court by operation of law without ratification by the referring court. Tex. Fam. Code § 201.2041(a). Regardless of whether a de novo hearing is requested before the referring court, a proposed order or judgment rendered by an associate judge that meets the requirements of Tex. Fam. Code § 263.401(d) is considered a final order for purposes of Tex. Fam. Code § 263.401. Tex. Fam. Code § 201.014(b) and Tex. Fam. Code § 201.2041(b).