in Re: Shannon Renee Luster, Relator ( 2004 )

NO. 07-03-0543-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
FEBRUARY 17, 2004
______________________________
IN RE SHANNON RENEE LUSTER, RELATOR
_________________________________
Before JOHNSON, C.J., and QUINN and REAVIS, JJ.
MEMORANDUM OPINION
By this original proceeding, relator Shannon Renee Luster, natural mother of
Christyn Shanae Luster, the subject of underlying proceedings, presents five issues
seeking a writ of mandamus to compel the Honorable David McCoy, Judge of the 100th
District Court of Carson County, and Celeste Bichsel, District Clerk of Carson County, to
provide certified copies of any and all documents filed in cause number 9373 since
October 22, 2003, including a certified copy of the termination of parental rights order.
Relator further requests a stay of proceedings in cause numbers 9204, 9231, and 9373
and that the 100th District Court be divested of jurisdiction pursuant to the Indian Child
Welfare Act. See 25 U.S.C. § 1901, et seq. For the reasons expressed herein, that
portion of the petition for writ of mandamus seeking relief against the District Clerk of
Carson County is dismissed for want of jurisdiction and that portion seeking relief against
the Honorable David McCoy is denied.
According to the limited record presented:
C the minor child is enrolled with the Choctaw Nation of Oklahoma;
C her natural father filed for divorce from relator on August 18, 2002;
C the paternal grandparents, William Darell Luster and Lynn Lee Luster,
were appointed temporary sole managing conservators, and by order
dated January 6, 2003, were appointed sole managing conservators
with relator being appointed possessory conservator;
C on March 17, 2003, relator was found in contempt and committed to
the county jail for failing to produce the minor child in accordance with
the trial court’s order of January 6;
C on June 20, 2003, the Lusters filed a petition to terminate the parental
rights of relator;
C relator was properly served but did not appear at the hearing on the
petition to terminate her rights;
C on November 12, 2003, the trial court signed an order terminating the
parental rights of relator and appointing the Lusters sole managing
conservators (the order is not contained in the documents filed in this
proceeding); and
C no accelerated notice of appeal from the trial court’s termination order
was filed.
District Clerk of Carson County
This Court only has the authority to issue writs of mandamus agreeable to the
principles of law regulating those writs against district and county judges within our
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jurisdiction. Tex. Gov’t Code Ann. § 22.221(b) (Vernon Supp. 2004). Consequently, we
have no jurisdiction to issue a writ of mandamus directing the District Clerk of Carson
County to provide certified copies of documents to relator.
Request for Certified Copies of Trial Court Records
By her petition for writ of mandamus, relator also requests we compel the Honorable
David McCoy to provide certified copies of any and all documents filed with the District
Clerk in cause number 9373 since October 22, 2003. After relator’s petition was filed, by
order dated January 29, 2004, the trial court ordered the District Clerk of the 100th District
Court of Carson County to provide counsel with access to the files and provide copies of
requested documents upon receipt of payment. Accordingly, that portion of relator’s
request is rendered moot.
Request for Stay of Underlying Proceedings and Injunction and
Request to Divest Trial Court of Jurisdiction
Pursuant to Rule 52.10 of the Texas Rules of Appellate Procedure, relator seeks
a stay of proceedings in cause numbers 9204, 9231, and 9373, all pertaining to suits
affecting the parent-child relationship. Relator requests that every order pertaining to
custody of the minor child be invalidated for being in violation of the Indian Child Welfare
Act. Finally, relator seeks to divest the 100th District Court of Carson County of jurisdiction
over the proceedings. Real parties in interest, the Lusters, filed their response to relator’s
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petition and a motion to dismiss. They assert that mandamus is not an appropriate
substitute for an appeal and that an appellate proceeding should be dismissed when an
appellate court learns that the party seeking relief has taken the child in defiance of the
order under review.
Mandamus is an extraordinary remedy available only in situations involving manifest
and urgent necessity and not for grievances that may be addressed by other remedies
such as an ordinary appeal. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). A party
seeking mandamus relief must demonstrate a clear right to the relief sought and that no
adequate remedy at law exists. West v. Powell, 816 S.W.2d 836, 837 (Tex.App.–Houston
[1st Dist.] 1991, no writ). A clear right to the relief sought may be demonstrated when the
trial court has abused its discretion or where the trial court has refused to perform a
nondiscretionary act. Doctors Hosp. Facilities v. Fifth Court of Appeals, 750 S.W.2d 177,
178 (Tex. 1988).
A writ of mandamus cannot be used as a substitute for the ordinary appellate
process. Hooks v. Fourth Court of Appeals, 808 S.W.2d 56, 59 (Tex. 1991); see also
Matthaei v. Clark, 110 Tex. 114, 216 S.W. 856, 861 (1919). Reasons for not pursuing the
appellate process such as cost or delay do not render the remedy at law inadequate; thus,
mandamus will not lie. Iley v.Hughes, 158 Tex. 362, 367-68, 311 S.W.2d 648, 652 (1958).
Although relator’s complaints raised in her petition for writ of mandamus may have been
meritorious if presented by an accelerated appeal filed pursuant to the Family Code and
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the Texas Rules of Appellate Procedure, see Tex. Fam. Code Ann. § 109.002(a) (Vernon
2002) & Tex. R. App. P. 26.1(b), or by a restricted appeal attacking the termination order
pursuant to Rules 25.1(d)(7) and 30 of the Texas Rules of Appellate Procedure, questions
we do not decide, she has not established her entitlement to mandamus relief.
Accordingly, the motion to dismiss filed by William Darell Luster and Lynn Lee
Luster is overruled. That portion of Shannon Renee Luster’s petition for writ of mandamus
against the Carson County District Clerk is dismissed for want of jurisdiction; in all other
respects the petition for writ of mandamus against the Honorable David McCoy is denied.
Don H. Reavis
Justice
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