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In re Martinez

Court of Appeals of Texas, Twelfth District, Tyler

October 31, 2019

IN RE:VIRIDIANA MARTINEZ, RELATOR

          ORIGINAL PROCEEDING.

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          Brian Hoyle Justice.

         Relator, Viridiana Martinez, filed this original proceeding to challenge Respondent's denial of her motion to transfer and motion to abate.[1] We deny the writ.

         Background

         On July 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.

         On July 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.[2]

         On July 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 States.

         On 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.

         On 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.

         Prerequisites to Mandamus

         Mandamus 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. proceeding).

         Mandamus 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. op.).

         Abuse ...


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