Court of Appeals of Texas, Twelfth District, Tyler
IN RE: MICHAEL WAYNE FALKNER, RELATORMICHAEL WAYNE FALKNER, Relator
HON. DEREK C. FLOURNOY, Respondent
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
James T. Worthen Chief Justice
Relator Michael Wayne Falkner filed a petition for a writ of mandamus directing the trial court to vacate its November 8, 2013 order transferring an original suit affecting parent-child relationship. Relator also requests that the trial court be directed to provide him notice of hearing, an opportunity to be heard, and an opportunity to respond to the motion to transfer. The respondent is the Honorable Derek C. Flournoy, Judge of the County Court at Law Number 2, Angelina County, Texas. We conditionally grant mandamus relief.
On October 24, 2013, Relator filed a petition in a suit affecting the parent-child relationship alleging his child lived in Angelina County. On November 7, 2013, the real party in interest, Charlotte Mae Pierce (Real Party), filed an original answer and a motion to transfer venue to Nacogdoches County. She alleged in her motion that "[a]t the time the suit was filed, the child's current residence was in Nacogdoches, Texas." The record indicates the motion to transfer was sent to Relator's counsel on November 7, 2013. The next day, November 8, Respondent signed an order transferring the case to Nacogdoches County. Relator then filed this original proceeding. He also filed a motion for an emergency stay, which we granted until further order of this court.
Prerequisites to Mandamus
Mandamus will issue only to correct a clear abuse of discretion for which the relator has no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). "A trial court has no „discretion' in determining what the law is or applying the law to the facts, " and "a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion." Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). Transfer procedures under the Texas Family Code are the exclusive mechanism for transferring suits affecting the parent-child relationship. In re Nabors, 276 S.W.3d 190, 194 (Tex. App.–Houston [14th Dist.] 2009, orig. proceeding). While appellate courts will not generally issue writs of mandamus to correct erroneous venue decisions, they may do so in suits affecting the parent-child relationship. In re Kramer, 9 S.W.3d 449, 450 (Tex. App.–San Antonio 1999, orig. proceeding). Therefore, we consider only whether Relator has shown the trial court abused its discretion.
Availability of Mandamus
Subject to certain exceptions not applicable here, an original suit affecting the parent-child relationship (SAPCR) must be filed in the county where the child resides. Tex. Fam. Code Ann. § 103.001(a) (West 2008). If venue is improper in the court in which an original SAPCR is filed, the trial court must transfer the suit to a county of proper venue "on the timely motion of a party other than the petitioner." Id. § 103.002(a) (West 2008). The procedures in Texas Family Code Chapter 155 apply to a transfer of an original SAPCR. Id. § 103.002(c) (West 2008); see id. §§ 155.001-.301 (West 2008) (Texas Family Code Chapter 155 pertaining to transfers of continuing, exclusive jurisdiction).
The method and time frame for opposing a motion to transfer an original SAPCR are as follows:
(c) If a timely motion to transfer has been filed and no controverting affidavit is filed within the period allowed for its filing, the proceeding shall, not later that the 21st day after the final date of the period allowed for the filing of a controverting affidavit, be transferred without a hearing to the proper court.
(d) On or before the first Monday after the 20th day after the date of notice of a motion to transfer is served, a party desiring to contest the motion must file a controverting ...