Court of Appeals of Texas, Twelfth District, Tyler
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
Viridiana Martinez, filed this original proceeding to
challenge Respondent's denial of her motion to transfer
and motion to abate. We deny the writ.
2, 2019, Viridiana filed an original petition in suit
affecting the parent child relationship (SAPCR) in El Paso
County, Texas. She listed El Paso as the child's county
of residence. The El Paso County Attorney also filed an
application for protective order on Viridiana's behalf.
Jose Guadalupe Martinez, Real Party in Interest, is the
child's father. On July 12, Jose filed a SAPCR petition
in Shelby County. That same day, Respondent signed an order
for writ of attachment as to the child. On July 17, Viridiana
filed a motion to transfer in Shelby County. She alleged that
her petition was filed in El Paso County on July 2, before
Jose filed suit in Shelby County, and that transfer to El
Paso County is mandatory. She further alleged that the child
resides in El Paso County, making venue proper in that
County. In response, Jose argued that transfer is not
mandatory because no final order has been rendered by any
court regarding the child. He further maintained that the
child resided in Shelby County his entire life until being
taken to El Paso on June 28, 2019. In an attached affidavit,
Jose stated that the child was born in 2016 and lived in
Shelby County until June 28 when Viridiana moved in with her
aunt in El Paso.
23, the trial court in El Paso County conducted a hearing on
the application for protective order, at which Jose appeared
in person. The El Paso County court signed a protective order
that day and, in doing so, found that family violence
occurred and is likely to reoccur. The order gave Viridiana
exclusive possession of the child and prohibited Jose from
removing the child from Viridiana's possession, but also
awarded Jose visitation as agreed by the parties. The order
was granted until July 22, 2021.
26, Respondent held a temporary orders hearing in Shelby
County. Viridiana, who speaks little English, appeared pro se
and without an interpreter. Jose testified that the child was
born in 2016 and lived in Shelby County his entire life. On
June 28, he returned home from work to find a letter from
Viridiana, in which she stated that she left with the child
to El Paso. He was present when Viridiana was served with the
writ of attachment, but she went inside the house and closed
the door. He testified that Viridiana is from Juarez, Mexico,
which is located across the bridge from El Paso, and her
parents still reside there. He expressed concern that
Viridiana might flee to Mexico with the child. Respondent
granted the motion for temporary orders prohibiting Viridiana
from removing the child from Shelby County. He signed an
order for writ of attachment that the child be delivered into
Jose's possession. Respondent explained that the order
was based on a clear danger that Viridiana would flee from
not only Respondent's jurisdiction, but also the United
August 5, Viridiana filed a motion to abate in Shelby County
on grounds that the same dispute was being litigated in
another Texas court. She alleged both that she filed suit
first and that Jose was served with an application for
protective order on July 8. She maintained that the El Paso
County trial court possessed dominant jurisdiction. In an
attached affidavit, Viridiana stated that she left Shelby
County on June 28 and hired an attorney after establishing El
Paso County as her residence.
August 9, Respondent conducted a hearing on Viridiana's
motions to transfer and to abate. Viridiana's counsel
argued that she established her residence in El Paso, filed a
SAPCR and a motion for protection there, and Jose appeared
and submitted to the El Paso court's jurisdiction. He
contended that jurisdiction is appropriate in El Paso, where
Viridiana had custody and management of the child and where
she filed suit. Jose's counsel argued that Shelby County
is the child's residence and that Viridiana filed for
relief after being in El Paso for a day or two, which he
contended is insufficient to establish a residence.
Respondent denied the motion to transfer and the motion to
abate. This proceeding followed.
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 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 & Protective
Servs., 210 S.W.3d 609, 613 (Tex. 2006) (orig.
is available to compel mandatory transfer in a suit affecting
the parent child-relationship. See 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). Mandamus may also
issue to enforce dominant jurisdiction. In re
Houghton, No. 09-17-00348-CV, 2017 WL 4682177, at *2
(Tex. App.-Beaumont Oct. 19, 2017, orig. proceeding) (mem.