in Re Zelda Kay Thorpe, Relator ( 2010 )

NO. 07-10-00341-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
SEPTEMBER 17, 2010
IN RE ZELDA KAY THORPE, RELATOR
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
MEMORANDUM OPINION
In this original proceeding, relator Zelda Kay Thorpe seeks a writ of mandamus
directing respondent, the Honorable Don R. Emerson, judge of the 320th Judicial
District Court, to transfer the underlying family law case to Dallas County. Finding the
mandamus record does not establish respondent abused his discretion, we will deny
relator’s petition.
Background
Thorpe and real party in interest, Santos Fuentes, Jr., were divorced by decree in
the 320th District Court in May 2006. The decree contained orders of conservatorship,
possession and access, and child support of the couple’s one minor child. Thorpe filed
a motion to modify the decree on June 10, 2010. Her requested modification concerned
Fuentes’ access to or possession of the child. Contemporaneously, Thorpe filed a
motion to transfer the case to Dallas County. She alleged Dallas County was the child’s
principal residence during the preceding six-month period.
Appearing pro se, Fuentes answered with a general denial filed on July 8. The
mandamus record does not contain an affidavit controverting venue in Dallas County.
By then represented by counsel, on August 5 Fuentes filed a motion for enforcement
asking the court to find Thorpe in contempt of court for failing to surrender the child for
visitation on July 30. On August 5, Fuentes’ motion for enforcement was set for hearing
on August 31 by an order stamped with the signature of Judge Emerson.
On August 13, counsel for Thorpe delivered a letter of that date addressed to
Judge Emerson, noting Thorpe’s pending motion to transfer. The letter argued because
Fuentes failed to file a controverting affidavit the case should have been transferred no
later than August 2. The letter requested that Judge Emerson sign an enclosed order
transferring the case. According to an affidavit of counsel submitted as part of the
mandamus record, the letter was “hand delivered to the office of [Judge Emerson] on
August 13, 2010.”
On August 20, Thorpe filed the present original proceeding seeking an order
directing Judge Emerson to grant her motion to transfer the case to Dallas County. She
also sought temporary relief staying the August 31 hearing on Fuentes’ motion for
enforcement. Despite our direction to do so, Fuentes did not file a response. By letter
of August 27, we denied Thorpe’s request for temporary relief.
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Analysis
A relator seeking relief by mandamus must show that the trial court clearly
abused its discretion, and the relator has no adequate remedy by appeal. In re Sw. Bell
Tel. Co., 226 S.W.3d 400, 403 (Tex. 2007) (orig. proceeding) (citing In re Prudential Ins.
Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding)). Mandamus will
issue to control the conduct of a trial court only when “the duty to do the act
commanded is clear and definite and involves the exercise of no discretion--that is,
when the act is ministerial.” Turner v. Pruitt, 161 Tex. 532, 534, 342 S.W.2d 422, 423
(1961). A trial court has no discretion in determining what the law is or applying the law
to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding).
The transfer of a suit affecting the parent-child relationship to a county where the child
has resided for more than six months is a mandatory ministerial duty. Proffer v. Yates,
734 S.W.2d 671, 673 (Tex. 1987) (orig. proceeding) (per curiam).1 Mandamus,
therefore, is available to compel the mandatory transfer of a suit affecting the parent-
child relationship. Id. at 672. An appellate court cannot resolve questions of fact in a
mandamus proceeding. In re Angelini, 186 S.W.3d 558, 560 (Tex. 2006) (orig.
proceeding).
Before mandamus relief may issue, the relator must establish that the trial court
1) had a legal duty to perform a non-discretionary act, 2) was asked to perform the act,
and 3) failed or refused to do so. O’Connor v. First Court of Appeals, 837 S.W.2d 94,
97 (Tex. 1992) (orig. proceeding); In re Chavez, 62 S.W.3d 225, 228 (Tex.App.--
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See Tex. Fam. Code Ann. § 155.201(a),(b) (Vernon 2008) and § 155.204(c),(d)
(Vernon Supp. 2009) (transfer procedure).
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Amarillo 2001, orig. proceeding). If the circumstances presented by the mandamus
record imposed a legal duty on Judge Emerson to transfer the case, a question we
need not decide, the record nonetheless does not demonstrate he abused his discretion
by not doing so by August 20. As evidence Judge Emerson was asked to perform the
transfer and failed or refused to do so, Thorpe relies on her counsel’s delivery of the
August 13 letter and proposed order to Judge Emerson’s office and the setting on
August 5 of a hearing on Fuentes’ motion for enforcement for August 31. But nothing
shows that Judge Emerson had any knowledge of Thorpe’s motion to transfer on
August 5 when the order setting hearing was stamped. The setting of the hearing does
not give rise to any inference of a failure or refusal on Judge Emerson’s part to grant the
motion to transfer, and certainly does not make the clear showing necessary for
mandamus.
Nor does the mere passage of seven days from the delivery to Judge Emerson’s
office of Thorpe’s August 13 letter and proposed order to the date of her filing of her
mandamus petition on August 20 demonstrate Judge Emerson failed or refused to
transfer the case. Even assuming transferring the case was by that date mandatory (a
decision, again, that we do not make), there could be many reasons why a proposed
order delivered to a trial court is not signed within that period of time, some involving a
possible abuse of discretion, some not. Our consideration of matters in the trial court is
of course limited to the mandamus record. Mandamus relief dependent on a showing
that a trial court has abused its discretion by failing or refusing to act may not be based
merely on speculation or assumption.
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Finding Thorpe has not demonstrated an abuse of discretion by Judge Emerson,
we deny her petition for writ of mandamus.
James T. Campbell
Justice
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