In re Eloy De Luna, Jr.--Appeal from County Court At Law No 1 of Webb County

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Phylis J. Speedlin, Justice

Steven C. Hilbig, Justice

Delivered and Filed: February 6, 2008

PETITION FOR WRIT OF MANDAMUS DENIED

In this mandamus action, Eloy DeLuna, Jr. seeks a writ of mandamus to require the transfer of an original suit affecting the parent-child relationship from Webb County to Harris County. We deny the requested relief.

Background

The underlying original suit was filed by the Texas Attorney General in the county court at law in Webb County. After DeLuna was served with the suit, he filed a motion to transfer the suit to Harris County based on section 155.201(b) of the Texas Family Code. DeLuna's motion alleged the child the subject of the suit had resided with him in Harris County for six months or longer. An associate judge held a hearing and granted DeLuna's motion to transfer. The child's mother, Monica Edith Martinez, was not present at this hearing. Shortly thereafter, Martinez filed two affidavits stating the child had resided with her in Webb County for ten months. Martinez also appealed the transfer order to the referring court, the county court at law. After a hearing, the referring court vacated the transfer order.

DeLuna claims the referring court acted unreasonably by vacating the associate judge's transfer order. The referring court's reason for vacating the transfer order is not readily apparent from the mandamus record. The order itself states it is based on evidence adduced at the hearing, but DeLuna has not provided us a reporter's record as required by the Texas Rules of Appellate Procedure. See Tex. R. App. P. 52.7(a)(2).

Discussion

Mandamus relief is only available when the facts of the case and the law permit the trial court to make but one decision and the trial court refuses to make that decision. Proffer v. Yates, 734 S.W.2d 671, 673 (Tex. 1987). Additionally, the party seeking mandamus relief must have no adequate remedy by appeal. Id. Appeal is frequently inadequate to protect the rights of parents and children entitled to a trial in a particular venue. Bollard v. Berchelmann, 921 S.W.2d 861, 863 (Tex. App.--San Antonio 1996, orig. proceeding).

DeLuna's main argument is that the requested transfer was mandatory under section 155.201(b) of the Texas Family Code because his motion to transfer was timely and uncontroverted. (2) The only authority cited in Deluna's transfer motion is section 155.201(b) and the allegations in his motion are tailored to this statute's venue requirements. However, section 155.201(b) applies to a suit to modify or a motion to enforce filed in a court having continuing, exclusive jurisdiction, not to an original suit affecting the parent-child relationship. Tex. Fam. Code Ann. 155.201(b) (Vernon Supp. 2007); Trevino v. Ables, 943 S.W.2d 166, 168 (Tex. App.--San Antonio 1997, orig. proceeding); McManus v. Wilborn, 932 S.W.2d 662, 664 (Tex. App.--Houston [14th Dist.] 1996, orig. proceeding). Venue in an original suit affecting the parent-child relationship, like the underlying suit, is governed by sections 103.001 and 103.002(a) of the Texas Family Code. See Tex. Fam. Code Ann. 103.001, 103.002 (Vernon 2002); In re Narvaiz, 193 S.W.3d 695, 698 (Tex. App.--Beaumont 2006, orig. proceeding) (applying venue statute in an original suit when parents resided in different counties and child had resided with each parent). Because DeLuna was not entitled to a mandatory transfer on the ground asserted in his motion, the referring court did not act unreasonably by vacating the transfer order.

Next, DeLuna asserts the referring court had no authority to consider Martinez's appeal of the transfer order to the referring court. We disagree. The Texas Family Code authorizes a referring trial court to review an associate judge's orders in a de novo hearing. Tex. Fam. Code Ann. 201.013-.015 (Vernon Supp. 2007). In addition, a referring court is permitted to adopt, modify, or reject an associate judge's proposed order even when no party requests a de novo hearing. Tex. Fam. Code Ann. 201.014(a)(1) (Vernon Supp. 2007).

Finally, DeLuna argues the referring court had no jurisdiction to vacate the transfer order because the court in Harris County had acquired jurisdiction. Again, we disagree. The jurisdiction of a transferring court does not terminate until the docketing of a case in the transferee court, a circumstance DeLuna does not allege or show to be present here. Tex. Fam. Code Ann. 155.005(b) (Vernon 2002); Bingham v. Dempster, 901 S.W.2d 424, 430 (Tex. 1995).

Because DeLuna has not established a right to mandamus relief, his petition for a writ of mandamus is denied.

Alma L. L pez, Chief Justice

1. This proceeding arises out of Cause No. 2007-CVO-001056-C1, styled In the Interest of E.A.D., a Child, pending in the County Court at Law No. 1, Webb County, Texas, the Honorable Alvino "Ben" Morales, Jr. presiding.

2. A party contesting a motion to transfer has until the first Monday after the 20th day after the date the motion to transfer is served to file a controverting affidavit denying that the grounds for transfer exist. Tex. Fam. Code Ann. 103.002(c)(1); 155.204(d) (Vernon 2002 & Supp. 2007). In his mandamus petition, DeLuna represents Martinez was served with his motion to transfer on July 28, 2007, meaning any controverting affidavit was not due until August 20, 2007. On that date, Martinez filed her first affidavit stating the child had resided with her in Webb County for ten months. Thus, the referring court could have concluded the associate judge's August 17, 2007 transfer order was premature, and Martinez had timely contested the transfer. When a motion to transfer is timely contested, the court must hold a hearing on the motion. Tex. Fam. Code Ann. 103.002(c)(1); 155.204(e) (Vernon 2002 & Supp. 2007).