PROCEEDING WRIT OF MANDAMUS 328th District Court Fort Bend
County, Texas Trial Court Cause No. 14-DCV-216657
consists of Justices Christopher, Donovan, and Jewell.
is Jennifer Braden (Mother) and real party-in-interest is
Hussain Rahim (Father).
December 29, 2017, relator filed a petition for writ of
mandamus in this court. See Tex. Gov't Code Ann.
§ 22.221 (West Supp. 2017); see also Tex. R.
App. P. 52. In the petition, relator asks this court to
compel the Honorable Ronald Pope, presiding judge of the
328th District Court of Fort Bend County, to vacate his June
12, 2017 Order, which (1) denied Mother's request that
the court relinquish jurisdiction over Father's Motion
for Enforcement of Child Support Order, (2) denied
Mother's request that hearings related to Father's
Motion for Enforcement of Child Support Order be conducted as
described in Section 159 of the Texas Family Code, and (3)
denied Mother's request that the court relinquish
jurisdiction to modify the November 23, 2013 conservatorship
order in this Suit Affecting Parent-Child Relationship.
obtain mandamus relief, a relator generally must show both
that the trial court clearly abused its discretion and that
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).
in unusual circumstances, mandamus relief is not available
after a final judgment has been issued because the relator
then has an adequate remedy by direct appeal.
case becomes moot when (1) there is no real controversy, or
(2) when a party seeks a judgment which, when rendered,
cannot have any practical legal effect." Tex.
Comm'n on Enviro. Quality v. San Marcos River
Found., 267 S.W.3d 356, 360 (Tex. App.-Corpus Christi
2008, pet. denied); In re Braden, No.
14-16-00480-CV, 2016 WL 3742308, at *1 (Tex. App.-Houston
[14th Dist.] July 12, 2016, orig. proceeding) (per curiam)
(mem. op.). The court will not issue mandamus "if for
any reason it would be useless or unavailing." Dow
Chem. Co. v. Garcia, 909 S.W.2d 503, 505 (Tex. 1995).
trial court issued a Final Order on January 31, 2018, which
modified the previous conservatorship and child support
orders. This Final Order may be appealed. Such an appeal
provides an adequate remedy for the review of Mother's
complaints regarding the denial of her requests that the
court relinquish jurisdiction to modify conservatorship and
child support orders. Further, these issues are moot because
they were decided in the Final Order. See In re
Braden, 2016 WL 3742308, at *1.
remaining issues, Mother argues that the trial court abused
its discretion by denying her requests that the court
relinquish jurisdiction of Father's Motion for
Enforcement of Child Support Order and that any hearings of
that motion be conducted as described in Chapter 159 of the
Texas Family Code.
159.316(f) of the Family Code states, "In a proceeding
under this chapter, a tribunal of this state shall
permit a party or witness residing outside this state to be
deposed or to testify under penalty of perjury by telephone,
audiovisual means, or other electronic means at a designated
tribunal or other location." Tex. Fam. Code Ann. §
159.316(f) (West Supp. 2017) (emphasis added). The
Legislature's use of the word "shall, " as
opposed to "may, " means that the trial court has a
mandatory, not a discretionary, duty to permit Mother to
testify by telephone. See Tex. Gov't Code §
311.016(2) (West 2013) (stating "shall" imposes a
duty). "The Code Construction Act makes clear that the
use of "shall" normally imposes a mandatory
requirement. Tex. Gov't Code § 311.016(2)."
Crosstex Energy Services, L.P. v. Pro Plus, Inc.,
430 S.W.3d 384, 392 (Tex. 2014). Accordingly, Mother has a
statutory right to appear and testify by telephone at any
hearings on motions to enforce child support orders of the
the record does not show whether Father intends to pursue his
Motion for Enforcement of Child Support Order in the Texas
court, given that Mother is now in New York. The trial court
did not hear the Motion for Enforcement of Child Support
Order at the trial which occurred on January 8 and 9, 2018.
Therefore, unless Father sets his Motion for Enforcement of
Child Support Order for hearing, the issues regarding the
trial court's ...