Chief Justice Gray, Justice Davis, and Justice Scoggins
GRAY, CHIEF JUSTICE.
Tinkers, who are the sole managing conservators of A.K. and
N.K., have filed a petition for a writ of mandamus asking
this Court to order the trial court in Brazos County to
withdraw its order denying their motion to strike an
intervention due to lack of standing of Julia and Roberto V.,
paternal grandparents of the children, and to order the trial
court in Burleson County to withdraw its order transferring
this proceeding to Brazos County. Because we find that Julia
and Roberto do not have standing in this proceeding, we
conditionally grant the petition for writ of mandamus.
children were placed with the Tinkers, the maternal
great-aunt and uncle of the children, by the Department of
Family and Protective Services and the Tinkers were named the
sole managing conservators of the children in a final order
entered in 2010. That order named the children's parents,
Mary and Mario, as possessory conservators. Mario was granted
supervised visitation with the children. On September 26,
2014, the Tinkers filed a petition to terminate the
parent-child relationship between the children and their
parents. Mary executed an affidavit of relinquishment of her
parental rights, which was later withdrawn during the
pendency of the proceedings.
November 6, 2014, Julia and Roberto filed a petition in
intervention seeking possession and access to the children
and also filed a motion to transfer venue from Burleson
County to Brazos County with an affidavit signed by Julia
alleging that the children were residing in Brazos County.
Julia and Roberto served the Tinkers through their attorney.
However, an affidavit contesting the motion to transfer was
not filed until February 5, 2015, which was untimely pursuant
to the Family Code. See Tex. Fam. Code Ann. §
155.204(d) (controverting affidavit must be filed on or
before the first Monday after the 20th day after the date of
notice of a motion to transfer is served). The trial court in
Burleson County entered an order transferring the proceedings
to Brazos County on February 23, 2015.
Tinkers first filed a plea to the jurisdiction in Burleson
County on February 15, 2015, and later filed a motion to
strike the intervention on December 1, 2016 in Brazos County.
The trial court in Brazos County conducted a temporary
hearing on December 8, 2016 which included the hearing on the
motion to strike the intervention. The trial court denied the
motion and determined that Julia and Roberto had standing to
intervene as grandparents of the children. The Tinkers filed
this petition asking this Court to order the trial court
withdraw its order finding that Julia and Roberto had
standing to intervene. The Tinkers further seek an order
requiring that the proceeding be transferred back to Burleson
County because the transfer of venue was improperly ordered
due to the lack of standing.
Under the Family Code
entitled to the extraordinary relief of a writ of mandamus,
the Tinkers must show that the trial court abused its
discretion and there is no adequate remedy by appeal. In
re Laibe Corp., 307 S.W.3d 314, 316 (Tex. 2010) (orig.
proceeding) (per curiam). A trial court abuses its discretion
if it reaches a decision so arbitrary and unreasonable as to
constitute a clear and prejudicial error of law, or if it
clearly fails to correctly analyze or apply the law. In
re Columbia Med. Ctr. of Las Colinas, 306 S.W.3d 246,
248 (Tex. 2010) (orig. proceeding) (per curiam); In re
Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex.
2005) (orig. proceeding) (per curiam). In determining whether
appeal is an adequate remedy, we consider whether the
benefits outweigh the detriments of mandamus review. In
re BP Prods. N. Am., Inc., 244 S.W.3d 840, 845 (Tex.
2008) (orig. proceeding).
their second issue, the Tinkers complain that the trial court
erred by denying their motion to strike the intervention
filed by Julia and Roberto. It is fundamental that a party
seeking conservatorship of a child must have standing to seek
such relief. See In re M.J.G., 248 S.W.3d
753, 757 (Tex. App.-Fort Worth 2008, no pet.); In re
S.S.J.-J., 153 S.W.3d 132, 134 (Tex. App.-San Antonio
2004, no pet.). Standing is implicit in the concept of
subject matter jurisdiction. Texas Association of
Business v. Texas Air Control Board, 852 S.W.2d
440, 443 (Tex. 1993). A party's lack of standing deprives
the trial court of subject matter jurisdiction and renders
subsequent trial court action void. Texas Ass'n
of Bus., 852 S.W.2d at 443; In re Smith,
260 S.W.3d 568, 572 (Tex. App.-Houston [14th Dist.] 2008,
102.004 of the Texas Family Code addresses standing of
grandparents and other relatives to either file an original
suit requesting managing conservatorship or to intervene in a
pending suit. Tex. Fam. Code Ann. § 102.004 (West 2014).
The trial court in Brazos County determined that Roberto and
Julia had standing to intervene pursuant to Section
102.004(b), which provides as follows:
(b) An original suit requesting possessory conservatorship
may not be filed by a grandparent or other person. However,
the court may grant a grandparent or other person deemed by
the court to have had substantial past contact with the child
leave to intervene in a pending suit filed by a person
authorized to do so under this subchapter if there is
satisfactory proof to the court that appointment of a parent
as a sole managing conservator or both parents as ...