A court may issue an emergency child-possession order without prior notice only if it makes several required safety findings. Any such order must also include a prominent attorney-rights notice and a separate description of the reasonable efforts made to avoid removal.
Sec. 262.102. EMERGENCY ORDER AUTHORIZING POSSESSION OF CHILD. (a) Before a court may, without prior notice and a hearing, issue a temporary order for the conservatorship of a child under Section 105.001(a)(1) or a temporary restraining order or attachment of a child authorizing a governmental entity to take possession of a child in a suit brought by a governmental entity, the court must find that: (1) there is an immediate danger to the physical health or safety of the child or the child has been a victim of neglect or sexual abuse; (2) continuation in the home would be contrary to the child's welfare; (3) there is no time, consistent with the physical health or safety of the child and the nature of the emergency, for a full adversary hearing under Subchapter C; (4) the child would not be adequately protected in the child's home with an order for the removal of the alleged perpetrator under Section 262.1015 or 262.1016 or a protective order issued under Title 4; (5) placing the child with a relative or designated caregiver or with a caregiver under a parental child safety placement agreement authorized by Subchapter L, Chapter 264: (A) was offered but refused; (B) was not possible because there was no time, consistent with the physical health or safety of the child and the nature of the emergency, to conduct the caregiver evaluation; or (C) would pose an immediate danger to the physical health or safety of the child; and (6) reasonable efforts, consistent with the circumstances and providing for the safety of the child, were made to prevent or eliminate the need for removal of the child. (b) In determining whether there is an immediate danger to the physical health or safety of a child, the court may consider whether the child's household includes a person who has: (1) abused or neglected another child in a manner that caused serious injury to or the death of the other child; or (2) sexually abused another child. (b-1) A determination under this section that there is an immediate danger to the physical health or safety of a child or that the child has been a victim of neglect or sexual abuse may not be based solely on the opinion of a medical professional under contract with the Department of Family and Protective Services who did not conduct a physical examination of the child. (c) If, based on the recommendation of or a request by the Department of Family and Protective Services, the court finds that child abuse or neglect has occurred and that the child requires protection from family violence by a member of the child's family or household, the court shall render a temporary order under Title 4 for the protection of the child. In this subsection, "family violence" has the meaning assigned by Section 71.004. (d) The temporary order, temporary restraining order, or attachment of a child rendered by the court under Subsection (a) must contain the following statement prominently displayed in boldface type, capital letters, or underlined: "YOU HAVE THE RIGHT TO BE REPRESENTED BY AN ATTORNEY. IF YOU ARE INDIGENT AND UNABLE TO AFFORD AN ATTORNEY, YOU HAVE THE RIGHT TO REQUEST THE APPOINTMENT OF AN ATTORNEY BY CONTACTING THE COURT AT [ADDRESS], [TELEPHONE NUMBER]. IF YOU APPEAR IN OPPOSITION TO THE SUIT, CLAIM INDIGENCE, AND REQUEST THE APPOINTMENT OF AN ATTORNEY, THE COURT WILL REQUIRE YOU TO SIGN AN AFFIDAVIT OF INDIGENCE AND THE COURT MAY HEAR EVIDENCE TO DETERMINE IF YOU ARE INDIGENT. IF THE COURT DETERMINES YOU ARE INDIGENT AND ELIGIBLE FOR APPOINTMENT OF AN ATTORNEY, THE COURT WILL APPOINT AN ATTORNEY TO REPRESENT YOU." (e) The temporary order, temporary restraining order, or attachment of a child rendered by the court under Subsection (a) must describe with specificity in a separate section the reasonable efforts, consistent with the circumstances and providing for the safety of the child, that were made to prevent or eliminate the need for the removal of the child as required by Subsection (a)(4). Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 1995, 74th Leg., ch. 751, Sec. 104, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 752, Sec. 2, eff. June 17, 1997; Acts 1999, 76th Leg., ch. 1150, Sec. 15, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1390, Sec. 34, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 849, Sec. 2, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 1276, Sec. 7.002(m), eff. Sept. 1, 2003. Amended by: Acts 2013, 83rd Leg., R.S., Ch. 810 (S.B. 1759), Sec. 7, eff. September 1, 2013. Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 1.155, eff. April 2, 2015. Acts 2017, 85th Leg., R.S., Ch. 910 (S.B. 999), Sec. 6, eff. September 1, 2017. Acts 2021, 87th Leg., R.S., Ch. 1047 (S.B. 1578), Sec. 5, eff. September 1, 2021. Acts 2023, 88th Leg., R.S., Ch. 672 (H.B. 968), Sec. 3, eff. September 1, 2023. Acts 2023, 88th Leg., R.S., Ch. 675 (H.B. 1087), Sec. 3, eff. September 1, 2023.