in Re J.W.B., a Child ( 2012 )

Petition for Writ of Mandamus Dismissed and Memorandum Opinion filed May 15,
2012.
In The
Fourteenth Court of Appeals
____________
NO. 14-12-00410-CV
____________
IN RE J.W.B., A CHILD, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
315th District Court
Harris County, Texas
Trial Court Cause No. 2011-07959J
MEMORANDUM OPINION
On May 2, 2012, relator filed an amended petition for writ of mandamus in this
court. See Tex. Gov=t Code § 22.221; see also Tex. R. App. P. 52.1. In the amended
petition, relator asks this court to order the respondent, the Honorable Michael Schneider,
presiding judge of the 315th District Court of Harris County, to vacate temporary orders
granting sole managing conservatorship of J.W.B. to the Texas Department of Family and
Protective Services. Relator also requests a stay of the underlying trial proceedings.
Because the temporary orders were signed by an associate judge and not adopted by the
referring court, we dismiss the petition for writ of mandamus.
This court’s mandamus jurisdiction is governed by section 22.221 of the Texas
Government Code. Section 22.221 expressly limits the mandamus jurisdiction of the
courts of appeals to: (1) writs against a district court judge or county court judge in the
court of appeals’ district, and (2) all writs necessary to enforce the court of appeals’
jurisdiction. Tex. Gov’t Code Ann. § 22.221. We do not have jurisdiction over an
associate judge. In re Texas Dept. of Family and Protective Servs., 348 S.W.3d 492, 495
(Tex. App.—Fort Worth 2011, orig. proceeding); In re Reynolds, No. 14-11-00002-CV;
2011 WL 32208 (Tex. App.—Houston [14th Dist.] Jan. 4, 2011, orig. proceeding) (mem.
op.).
On April 19, 2012, we dismissed relator’s petition for writ of mandamus for want of
jurisdiction. See In re J.W.B., a child, No. 14-12-00342-CV; 2012 WL 1380245 (Tex.
App.—Houston [14th Dist.] Apr. 19, 2012, orig. proceeding) (mem. op.). Relator filed a
motion for rehearing in that cause and filed this amended petition, which has been docketed
in a separate cause number. In the motion for rehearing and in this amended petition,
relator alleges that the order she complains of automatically became the order of the
referring court; therefore, this court has jurisdiction to issue mandamus against the
respondent.
In support of her proposition, relator cites section 201.1041(a) of the Texas Family
Code, which falls within subchapter B of chapter 201 of the Family Code. Subchapter B
is entitled, “Associate Judge for Title IV-D Cases.” Section 201.1041(a) provides:
(a) If a request for a de novo hearing before the referring court is not timely
filed or the right to a de novo hearing before the referring court is waived, the
proposed order or judgment of the associate judge, other than a proposed
order or judgment providing for enforcement by contempt or the immediate
incarceration of a party, shall become the order or judgment of the referring
court by operation of law without ratification by the referring court.
This case is not a Title IV-D case. The applicable provision of the Family Code in this
case is section 201.013(b) of the Family Code, which provides:
Except as provided by Section 201.007(c), if a request for a de novo hearing
before the referring court is not timely filed or the right to a de novo hearing
2
before the referring court is waived, the proposed order or judgment of the
associate judge becomes the order or judgment of the referring court only on
the referring court’s signing the proposed order or judgment.
Before the order becomes the order of the referring court in this case, the referring court
must have signed the proposed order or judgment. See Tex. Fam. Code Ann. §
201.013(b). Because the order was not signed by the referring court, but only the
associate judge, this court does not have mandamus jurisdiction.
Accordingly, the petition for writ of mandamus is ordered dismissed and relator’s
request for stay is denied.
PER CURIAM
Panel consists of Justices Frost, Jamison, and McCally.
3