Court of Appeals of Texas, Fourth District, San Antonio
Original Mandamus Proceeding 
Sitting: Luz Elena D. Chapa, Justice Beth Watkins, Justice
Liza A. Rodriguez, Justice
Elena D. Chapa, Justice
the pendency of a suit for modification of the parent-child
relationship, the trial court entered temporary orders that
lifted a geographical restriction imposed on the
children's mother. Because we conclude the mother did not
satisfy her statutory burden, we conditionally grant the
petition for writ of mandamus.
and the real party in interest are the divorced parents of
three children. The middle child ("J.A.L.") has
several severe physical disabilities. Under the July 11, 2018
divorce decree, the parents were appointed joint managing
conservators of the children and the mother (hereinafter,
"Natalie") was given the exclusive right to
designate the children's primary residence. However, the
decree required the children's primary residence to be
within the North East Independent School
District. Under the decree, relator was required to
move from Guadalupe County to the North East Independent
School District in Bexar County by June 1, 2019 or the
geographical restriction would be lifted. Relator complied
with the decree and moved to a house approximately a half
mile from the children's school by the end of May 2019.
Relator also was required to pay child support.
March 6, 2019, Natalie filed an original petition to modify
the parent-child relationship. In her petition, Natalie asked
the divorce decree be modified to deny relator access to the
children or allow only supervised access. Natalie alleged
relator "has a history or pattern of past or present
child neglect or physical abuse directed against" J.A.L.
Natalie requested temporary orders appointing her sole
managing conservator and appointing relator temporary
possessory conservator. On that same date, Natalie also filed
a motion for temporary orders asking she be appointed
temporary sole managing conservator, relator be denied access
to the children or allowed only supervised access, and
relator be ordered to pay child support. Relator filed an
answer and a counter-petition to modify the parent-child
trial court conducted a hearing on May 8, 2019 at which time
Natalie asked the court to lift the geographical restriction
to allow her and the children to move to Florida. On June 28,
2019, the trial court signed temporary orders that, among
other things, lifted the geographical restriction. On June
28, relator filed his petition for writ of mandamus and a
motion for emergency relief in which he stated his summer
visitation would end on July 7, 2019 at which time he
believed Natalie would move with the children to Florida.
This court issued a stay and requested a response. Natalie
filed a response, to which relator replied.
is an extraordinary remedy that will issue only to correct a
clear abuse of discretion when there is no other adequate
remedy at law. In re Sw. Bell Tel. Co., L.P., 235
S.W.3d 619, 623 (Tex. 2007) (orig. proceeding). "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
temporary orders in suits affecting the parent-child
relationship are not appealable, a petition for writ of
mandamus is an appropriate means to challenge them. Dancy
v. Daggett, 815 S.W.2d 548, 549 (Tex. 1991) (orig.
proceeding) (per curiam); In re Herring, 221 S.W.3d
729, 730 (Tex. App.-San Antonio 2007, orig. proceeding).
Texas Family Code provides, in relevant part, as follows:
While a suit for modification is pending, the court may not
render a temporary order that has the effect of creating a
designation, or changing the designation, of the person who
has the exclusive right to designate the primary residence of
the child, or the effect of creating a geographic area, or
changing or eliminating the geographic area, within which
a conservator must maintain the child's primary
residence, under the final order unless the
temporary order is in the best interest of the child and the
order is necessary ...