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4000 Legal Actions

APS-IH / February 2009

There are several legal alternatives that the APS specialist may use when investigating allegations of abuse, neglect, or financial exploitation or providing protective services. Legal actions may be initiated by APS or other local officials, such as law enforcement or mental health authorities. The ultimate goal of initiating legal actions is always to ensure client safety and well-being.

The specialist must ensure that all legal actions are the least restrictive alternative and are initiated only after consultation with the supervisor and, as appropriate, the regional attorney.

The APS specialist, in conjunction with the supervisor and regional attorney, may initiate the following legal actions:

  •   Application for Order Authorizing Forcible Entry: to gain court-authorized entry to the client’s home

  •   Plaintiff’s Original Petition for Injunctive Relief: to remedy interference with an investigation or protective services when the APS specialist is denied access to a client

  •   Petition for the Production of Records: to access and obtain records that are necessary for a complete assessment of the factors leading to abuse, neglect, or financial exploitation; and

  •   Original Petition for Protection of an Elderly or Disabled Person in an Emergency (emergency order for protective services, known as EOPS): to provide court-ordered protective services for a client who lacks capacity to consent and is refusing services that are necessary to sustain his or her life or prevent the client from serious harm (see related forms for extension of EOPS and other actions)

Where to File APS Court Cases

APS files court actions in the county court that has probate jurisdiction in the county in which the client resides. This court may be known as:

  •   county court;

  •   county court-at-law; or

  •   statutory probate court.

The county clerk’s office files the APS case with the correct court, if more than one court exists. In 4000 Legal Actions and subitems, the term probate court represents all of the courts listed above.

4100 Legal Representation

APS-IH / February 2009

The Human Resources Code (HRC) §48.210 provides for the following people to represent DFPS in legal actions arising from the Human Resources Code, unless the representation would be a conflict of interest:

  •   The prosecuting attorney representing the state in criminal cases in county court

      Or

  •   In a county having a population of more than 2.8 million (such as Harris County), the prosecuting attorney representing the state in civil cases in the county court

It may be necessary for a DFPS regional attorney to represent APS if a county attorney or district attorney is unavailable or has a conflict of interest.

4110 Court Costs and Filing Fees

APS-IH / February 2009

The Human Resources Code (HRC) §40.062, exempts DFPS from the payment of court costs, filing fees, county clerk’s fees, and other fees imposed by law for services rendered. This provision applies to any legal actions initiated by DFPS, including the actions listed in 4140 Consultation With Regional Attorneys.

This provision does not apply to legal actions that are not initiated by DFPS. For example, if a family member applies for guardianship or petitions the court for commitment of a client, the family member is not exempt from court costs and filing fees, even when initiating the legal action at the recommendation of the specialist to remedy abuse, neglect, or financial exploitation.

4111 Filing Fees for Eviction of Alleged Perpetrator

APS IH / September 2011

The Texas Property Code, Chapter 24, identifies the court of jurisdiction and the procedures for evictions. The client may request assistance from APS for this purpose. If the client requests assistance and the APS specialist agrees that eviction of the alleged perpetrator is necessary to alleviate abuse, neglect, or financial exploitation of the APS client, purchased client services (PCS) funds may be used.

Since evictions are not initiated by DFPS, but rather on behalf of a client, the client is not exempt from payment of fees. The APS specialist must explain to the client and applicable court that the eviction is not an action initiated by DFPS.

See:

4900 Family Violence Protective Orders Against a Perpetrator

4910 APS Specialist Role in Assisting a Client with a Protective Order

Appendix IX: APS Service Codes, Service Descriptions, Unit Types, and Unit Type Descriptions

4120 General Procedures for Initiating Legal Actions

APS-IH / June 2009

When a case involves possible legal actions, the APS specialist must:

  •   obtain supervisory approval before recommending or initiating any legal action listed in 4000 Legal Alternatives and its subitems, except for obtaining a:

  •   representative payee, or

  •   Texas Family Code protective order, when the victim is the applicant;

  •   consults with the regional attorney, if possible, before initiating any court actions, including filing for:

  •   court-authorized entry,

  •   an injunction against interference,

  •   an emergency order for protective services,

  •   production of records,

  •   application by DFPS for a family protective order;

  •   contacts the county or district attorney to represent DFPS in the legal proceeding. If the county or district attorney is unable or unwilling to provide representation or deems that a conflict of interest exists, the specialist contacts the regional attorney at once for representation.

The supervisor (or specialist, with supervisory approval) must notify the district director or designee of the potential for legal action.

See also:

4200 Court Authorized Entry

4300 Access to Records

4400 Interference With Investigation or Protective Services

4500 Emergency Order for Protective Services (EOPS)

4910 APS Specialist Role in Assisting a Client With a Protective Order

4130 Documentation of Legal Actions

APS IH / September 2011

All legal actions initiated by an APS specialist to remedy abuse, neglect, or financial exploitation are documented in the Legal Action and Outcome page. Legal actions documented on this page include actions related to petitions brought by DFPS, the family, or other interested parties at the suggestion of APS staff.

The specialist fills out the required fields and checks the Document in Case File box to indicate a copy of the legal document is in the paper file. If the legal action was taken by someone other than APS, the specialist also checks the Action Taken by Family/Other box.

The specialist selects from the legal actions and subtypes on the following table:

Action

Subtype

Court Authorized Entry

Application for Order Authorizing Forcible Entry

Emergency Order for Protective Services

  •   Emergency Order for Protective Services

  •   Motion for Extension of Emergency Order

Injunction Against Interference

Petition and Order for Injunctive Relief Against Interference With Protective Services

Civil Commitment

  •   Application Emergency Detention

  •  Application for Temporary Mental Health Services

  •   Application for Extended Mental Health Services

  •   Application for Mental Retardation Services

  •   Other

Family Protective Order

Application for Protective Order

Production of Records

Petition and Order for the Production of Records

Client Action on APS Investigation

  •   Court Removal of Guardianship

  •   Criminal Prosecution

  •   Other (for example, Eviction of the Alleged Perpetrator)

The specialist must also select one of the following outcomes for each action:

  •   Granted

  •   Denied

  •   Dismissed

  •   Approved

  •   Disapproved

  •   No Court Action Required

  •   Other

4131 Documentation of the Guardianship Detail Page

APS IH / September 2011

The specialist completes the Guardianship Detail page when a client receiving APS services has a guardian, including clients who:

  •   already had a guardian before a report was received by APS; or

  •   had another person, entity, or contractor appointed as guardian during APS involvement.

Upon a referral to DADS Guardianship Services, the specialist or designee also completes the required fields noting the dates and outcomes of the applicable steps of the referral process, including:

  •   date the guardianship referral was sent;

  •   date and results of the initial case review;

  •   date the guardianship referral was accepted;

  •   date the notification of DADS assessment was received;

  •   notification of DADS assessment results;

  •   date and results of joint staffing;

  •   date and results of management review;

  •   date and results of Guardianship Review Committee review; and

  •   final outcome of the review process.

See:

4782 Standard Referrals to DADS Guardianship Services

4783 Emergency Referrals to DADS Guardianship Services

4784 Joint Staffing Process for Referrals to DADS Guardianship Services

4140 Consultation With Regional Attorneys

APS IH / September 2011

The primary legal resource for the APS specialist is the regional attorney. The regional attorney provides expertise regarding:

  •   legal procedures;

  •   courtroom protocol;

  •   matters involving interpretations and applications of the scope and extent of DFPS authority, as well as state and federal law; and

  •   the training of staff in the legal aspects of adult protective services.

See:

4120 General Procedures for Initiating Legal Actions

4520 Authorization for Emergency Protective Services Before a Court Order Can Be Obtained.

4150 Completion of Legal Forms by the APS Specialist

APS IH / October 2013

An APS specialist may complete pre-written legal forms on APS cases for a district, county, or regional attorney who is representing DFPS in a legal proceeding while under the direction and supervision of that attorney.

The attorney is responsible for:

  •   drafting language for the forms and providing consultation to the specialist regarding completion of the forms;

  •   ensuring that the forms are completed correctly; and

  •   reviewing and signing the forms before they are filed with the court.

The APS specialist does not sign any legal pleading, except for:

  •   the affidavit that is attached to the original petition setting forth the facts of the alleged abuse, neglect, or financial exploitation; or

  •   an affidavit for guardianship application, if requested by DADS.

See also 3551 APS Role in Completing Hospital or Nursing Home Admission Forms.

4151 Procedures for Completion of Legal Forms

APS-IH / February 2009

Pre-written legal forms include petitions, motions, and orders. See APS Legal Forms. The APS specialist completes the forms by filling in the blanks with:

  •   names;

  •   addresses;

  •   dates of birth;

  •   counties of birth;

  •   relationships; and

  •   similar factual information.

The APS specialist may also select the paragraph appropriate for a particular case from a list of pre-written paragraphs provided in the legal form to place at the point designated in the legal form. No legal knowledge or legal judgment is required to fill in the blank or select the right paragraph, only a knowledge of the facts.

If the APS specialist is unable to determine how to fill in a blank or which paragraph to select, the specialist must contact the attorney for instructions on how to proceed. The drafting of any new paragraph, alteration of an existing paragraph, or creation of any new document requires legal judgment and must be completed by the attorney or under his specific direction.

4152 APS Legal Forms Online

APS-IH / February 2009

The APS specialist locates forms on the DFPS intranet through the APS Legal Forms page, including the:

Application for Protective Order

Application for Order Authorizing Forcible Entry

Request for Information From Banks

Plaintiff's Original Petition for Injunctive Relief Against Interference With Protective Services

Motion and Order for EOPS

Petition for the Production of Records

Post-EOPS Physician’s Report

Motion and Order for Extension of Emergency Order

Order Paying Attorney Ad Litem

Notice of Removal

Other forms available under Exhibit A for EOPS include the:

Pre-EOPS Physician’s Letter

Health Status Report;

Psychological Status Report

Nursing Assessment Report

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