Court of Appeals of Texas, Twelfth District, Tyler
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
Alina Yancey, files this original proceeding in which she
complains of the trial court's refusal to transfer
venue. We conditionally grant the writ.
and Nelson Pruitt are the parents of J.P., H.P., and L.P. In
December 2012, the Rusk County trial court signed a final
decree dissolving the marriage between Yancey and Pruitt. In
2014, the trial court signed an order making Pruitt
J.P.'s primary managing conservator and making Yancey the
primary managing conservator for H.P. and L.P.
January 31, 2017, the Texas Attorney General's Office
filed (1) a suit for modification of support and motion to
confirm support arrearage in Rusk County, and (2) a motion to
transfer venue from Rusk County to Smith County on grounds
that, although the Rusk County court had continuing
jurisdiction, Yancey, H.P., and L.P. had resided in Smith
County for more than six months before the filing of the
motion. In her affidavit of residency, Yancey averred that
she and the children had resided in Smith County for at least
six months. Pruitt filed a controverting declaration, in
which he stated that J.P. has resided in Rusk County, not
Smith County, for at least six months. Pruitt also filed a
counter-petition to modify the parent-child relationship.
hearing on the motion to transfer, Pruitt testified that the
case originated in Rusk County and that he, Yancey, and the
three children resided in Rusk County at that time. However,
Yancey, H.P., and L.P. later moved out of the county and J.P.
remained with him. He did not want the case transferred
because J.P. resides with him in Rusk County and it would be
inconvenient to travel to Smith County. He testified that
Smith County is H.P.'s and L.P.'s primary domicile
and that they lived there longer than six months.
Yancey's attorney maintained that the Rusk County court
was no longer the court of continuing jurisdiction because
the children had not lived in Rusk County for the past six
months. She also argued that sever was appropriate for the
two children who resided in Smith County.
16, the trial court denied the motion to transfer. Yancey
subsequently filed her own motion to transfer, and Pruitt
again filed a controverting affidavit. The record does not
reflect that the trial court ruled on Yancey's motion;
thus, it was overruled by operation of law. Yancey filed this
original proceeding on July 28.
is an extraordinary remedy. In re Sw. Bell Tel. Co.,
L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig.
proceeding). A writ of mandamus will issue only when the
relator has no adequate remedy by appeal and the trial court
committed a clear abuse of discretion. In re Cerberus
Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005)
(orig. proceeding). The relator has the burden of
establishing both of these prerequisites. In re
Fitzgerald, 429 S.W.3d 886, 891 (Tex. App.-Tyler 2014,
orig. proceeding.). "Mandamus will not issue when the
law provides another plain, adequate, and complete
remedy." In re Tex. Dep't of Family and
Protective Servs., 210 S.W.3d 609, 613 (Tex. 2006)
(orig. proceeding). Mandamus is available to compel mandatory
transfer in a suit affecting the parent child-relationship.
In re Lawson, 357 S.W.3d 134, 135-36 (Tex. App.-San
Antonio 2011, orig. proceeding); In re Calderon, 96
S.W.3d 711, 715 (Tex. App.-Tyler 2003, orig. proceeding).
contends that, under section 155.201(b) of the family code,
the trial court should have transferred the case to Smith
County with respect to H.P. and L.P., as both children
resided in Smith County for over six months.
a suit to modify or a motion to enforce an order is filed in
the court having continuing, exclusive jurisdiction of a
suit, on the timely motion of a party the court shall, within
the time required by Section 155.204, transfer the proceeding
to another county in this state if the child has resided in
the other county for six months or longer." Tex. Fam.
Code Ann. § 155.201(b) (West 2014). Except in
circumstances inapplicable to this case, a motion to transfer
by a petitioner or movant is timely if made when the initial
pleadings are filed. Id. § 155.204(b) (West
2014). "Transferring a case to a county where the ...