in Re: Maria Esperanza Velez ( 2002 )

                                                            COURT OF APPEALS

                                                    EIGHTH DISTRICT OF TEXAS

                                                               EL PASO, TEXAS

                                                                              )    

                                                                              )                        No.  08-01-00228-CV

IN RE: MARIA ESPERANZA VELEZ,                )

                                                                              )                 AN ORIGINAL PROCEEDING

Relator.                  )    

                                                                              )                             IN MANDAMUS

                                                                              )

O P I N I O N

This petition for writ of mandamus concerns the Hague Convention^[1] (AConvention@) as implemented by the United States in the International Child Abduction Remedies Act^[2] (AICARA@), and involves a request by a father for an order under the Convention requiring a mother (Relator) to return their child to Spain, the country from which the child was removed in 1999.  Relator seeks mandamus relief to compel the 65th Judicial District Court of El Paso County, Texas to vacate its order granting full faith and credit to a prior judgment adjudicating an earlier Convention petition because she was denied an evidentiary hearing.

Immediately following the proceedings in the trial court, Velez filed a motion for temporary emergency relief with this court. We granted the motion the same day, ordered all proceedings in the trial court stayed, and barred the trial court from enforcing its order returning the child in accordance with the Convention pending this Court=s ruling on Velez=s petition for writ of mandamus.  Before our order was delivered to the parties, the father and child left the jurisdiction of the court.  Velez filed a petition for writ of mandamus on June 12 and a notice of appeal on June 27.  The mandamus proceeding and the appeal were consolidated for purposes of argument.             We do not detail here the full factual and procedural history of this case, leaving it for discussion in our opinion in the appeal which we have also issued today.  See Velez v. Mitsak, No. 08-01-00246-CV (Tex.App.--El Paso August 29, 2002, no pet. h.)  Instead, we turn directly to the standard of review.

STANDARD OF REVIEW

Mandamus will lie only to correct a clear abuse of discretion.  Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992); In re Wal-Mart Stores, Inc., 20 S.W.3d 734, 738 (Tex.App.--El Paso 2000, no pet.).  The relator must have no other adequate remedy at law.  Id.  Mandamus relief will be denied if the relator has another available adequate remedy.  Street v. Second Court of Appeals, 715 S.W.2d 638, 639-40 (Tex. 1986); In re Wal-Mart Stores, Inc., 20 S.W.3d at 738.  A court abuses its discretion when it fails to properly apply the law to the undisputed facts, when it acts arbitrarily or unreasonably, or when its ruling is based on factual assertions unsupported by the record.  See In re Kramer, 9 S.W.3d 449, 450 (Tex.App.--San Antonio 1999, orig. proceeding).

Mandamus relief is not appropriate here inasmuch as Relator has filed a parallel appeal that affords her the relief she seeks.  We have sustained her complaints regarding an opportunity to have a full hearing consistent with the procedural requirements of a petition filed pursuant to the Convention and remanded the case for further proceedings.  The petition for writ of mandamus is denied.

August 29, 2002

ANN CRAWFORD McCLURE, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)

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^[1]  See Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, 51 Fed.Reg. 10494, 10498-502 (App. B) 1986.

^[2]  See 42 U.S.C.A. '' 11601-11610 (1995).