Court of Appeals of Texas, Fourth District, San Antonio
Original Mandamus Proceeding 
Sitting: Sandee Bryan Marion, Chief Justice Patricia O.
Alvarez, Justice Irene Rios, Justice
PATRICIA O. ALVAREZ, JUSTICE
original proceeding, relator asserts the trial court abused
its discretion by ordering him to pay the real party in
interest $5, 000 in appellate attorney's fees because,
among other reasons, there is no evidence the fees are
necessary to protect the child's safety and welfare
during the pendency of relator's appeal. We agree and
conditionally grant the petition.
16, 2015, relator and Kelly Rigsby, the real party in
interest, obtained a divorce. The couple has one child
together. The couple were appointed joint managing
conservators of the child, with Kelly having the exclusive
right to designate the child's primary residence. On
February 13, 2018, relator filed an original counter-petition
to modify in the SAPCR proceeding. The trial court denied the
motion and relator's subsequent appeal to this court was
dismissed for lack of jurisdiction. See In the Int. of
H.E.W.M., 04-19-00029-CV, 2019 WL 1459559, at *1 (Tex.
App.-San Antonio Apr. 3, 2019, no pet.) (per curiam) (mem.
op). Prior to this court's dismissal of the appeal, Kelly
filed, in the trial court, a motion for temporary orders
pending appeal in which she asked the trial court to enter an
order pursuant to Texas Family Code section 109.001. Kelly
did not specifically state the relief she sought.
trial court commenced a hearing on February 14, 2019 to
consider Kelly's motion. On March 27, 2019, the trial
court signed an Order Regarding Possession, Access, and
Support. A few days later, the trial court signed temporary
orders pending appeal in which the trial court ordered
relator to pay Kelly $5, 000 "by 5:00 p.m. the day he
files his Appellant's brief in any appeal by [relator] of
the Order Regarding Possession, Access, and Support entered
in this case." Relator filed a notice of appeal on April
4, 2019. Relator later filed this original proceeding and
Kelly filed her response.
is an extraordinary remedy. In re Sw. Bell Tel. Co.,
L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig.
proceeding). Mandamus will issue only to correct a clear
abuse of discretion when there is no other adequate remedy at
law. Id. "A trial court has no
'discretion' in determining what the law is or
applying the law to the facts. Thus, a clear failure by the
trial court to analyze or apply the law correctly will
constitute an abuse of discretion, and may result in
appellate reversal by extraordinary writ." Walker v.
Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig.
proceeding). Also, legal and factual sufficiency challenges
to the evidence are relevant factors in assessing whether the
trial court abused its discretion. In re Rogers, 370
S.W.3d 443, 445 (Tex. App.- Austin 2012, orig. proceeding).
"Thus where, as here, an abuse-of-discretion standard
applies, we must engage in a two-pronged inquiry, asking (1)
whether the trial court had sufficient information on which
to exercise its discretion; and, if so, (2) whether the trial
court erred in its application of discretion based on that
orders, such as the one here, "are not subject to
interlocutory appeal." Tex. Fam. Code § 109.001(c).
"A party may seek review of the trial court's
temporary order under [section 109.001] by (1) petition for
writ of mandamus; or (2) proper assignment in the party's
brief." Id. § 109.001(b-5). When, as here,
a trial court's temporary orders under section 109.001
require the immediate payment of attorney's fees, review
of the award during a pending appeal does not provide an
adequate remedy at law. In re Jafarzadeh, No.
05-14-01576-CV, 2015 WL 72693, at *1 (Tex. App.-Dallas Jan.
2, 2015, orig. proceeding) (mem. op.). Therefore, in this
case, mandamus review is appropriate. See id.;
see also Rogers, 370 S.W.3d at 445 ("Assuming a
clear abuse of discretion in a temporary order in a suit
affecting the parent-child relationship, mandamus may lie on
the basis that there are no appellate remedies that are
considered adequate."); In re Garza, 153 S.W.3d
97, 100 (Tex. App.-San Antonio 2004, orig. proceeding)
("Mandamus is an appropriate means to challenge
temporary orders pending appeal."); cf. Halleman v.
Halleman, 379 S.W.3d 443, 455 (Tex. App.-Fort Worth
2012, no pet.) (concluding appellant could challenge
appellate attorney's fees award in pending appeal from
final judgment because order conditioned payment of fees upon
opposing party's success on appeal).
ORDERS FOR PAYMENT OF ATTORNEY'S FEES
SAPCR proceeding, "the court may make a temporary order,
including the modification of a prior temporary order, for
the safety and welfare of the child, including an order . . .
for payment of reasonable attorney's fees and
expenses." Tex. Fam. Code § 105.001(a)(5). Also, in
a SAPCR proceeding, "the court may make any order
necessary to preserve and protect the safety and welfare of
the child during the pendency of an appeal as the court may
deem necessary and equitable[, including] requir[ing] payment
of reasonable and necessary attorney's fees and expenses
. . . ." Id. § 109.001(a)(5).
the trial court ordered relator to pay Kelly $5, 000 for her
appellate attorney's fees. Relator raises several
challenges to the order: (1) there is no evidence the fees
are necessary for the safety and welfare of the child during
the pendency of his appeal; (2) the payment of fees to Kelly
is not contingent on his unsuccessful appeal; and (3) the
trial court did not order reimbursement from Kelly in the
event relator's appeal is successful. Because it is
dispositive, we consider only relator's first challenge
to the temporary orders.
court may order the payment of attorney's fees "for
the safety and welfare of the child." See id.
§§ 105.001(a)(5); 109.001(a)(5). Here, the trial
court determined the "best interest" of the child
required entry of the temporary order. The
"children's best interest is not the operative
standard under section 109.001; rather, the trial court must
consider only those matters that affect the 'safety and
welfare of the child during the pendency of the
appeal.'" In re Wiese, 03-15-00062-CV, 2015
WL 4907030, at *3 (Tex. App.-Austin Aug. 12, 2015, orig.
proceeding) (mem. op.). Neither section 105.001 nor section
109.001 authorizes a trial court to make a temporary order
for payment of attorney's fees "for a purpose other
than the safety and welfare of the child." See
id. (section 109.001); Rogers, 370 S.W.3d at
445-46 (section 105.001(a)(5)); Saxton v. Daggett,