IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
SEPTEMBER 14, 2001
______________________________
IN RE: JOHANSON LEE WATSON, RELATOR
_________________________________Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
Pending before the court is a pleading of relator Johanson Lee Watson entitled Motion for Leave for Permission to Reconsider to File a Motion for a Writ of Mandamus, together with attachments and exhibits. Such motion references our prior disposition of what we determined was a petition for writ of mandamus to be directed to the Honorable Tom Neely, Judge of the 46th District Court of Wilbarger County, Texas. Accompanying relator's current motion are copies of what he asserts are motions which have been filed with the district clerk of Wilbarger County (the "district clerk") in June, 2001, and August, 2001. The copies do not reflect file-marks by the district clerk. Also accompanying relator's motion are copies of what he asserts are letters sent to the district clerk inquiring as to the disposition of his motions, and letters from the district clerk in response to his inquiries. Notably absent from his Motion for Leave for Permission to Reconsider are any requests presenting relator's motions to Judge Neely, or requesting Judge Neely to act on the motions.
Relators seeking issuance of a writ of mandamus directed to a trial judge must satisfy three requirements to show entitlement to the writ: (1) a legal duty to perform; (2) a demand for performance; and (3) a refusal to act. See Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979). A trial court is not required to consider a motion not called to its attention. See Metzger v. Sebek, 892 S.W.2d 20, 49 (Tex.App.--Houston [1st Dist.] 1994, writ denied).
Even if we allow relator considerable leeway in his pleadings and applications for relief because he is proceeding pro se, he has failed to show that the motions filed with the district clerk have ever been presented to, or that Judge Neely has been requested to act on, the motions. Relator has thus failed to present any basis for us to reconsider our prior denial of his application for writ of mandamus.
Relator's Motion for Leave for Permission to Reconsider is denied.
Phil Johnson
Justice
Do not publish.
mus directing the trial court to vacate the order of transfer.
Relator asserts that sections 105.002(c)(1)(D) and (d) of the Texas Family Code do not allow the court to contravene the jury's verdict restricting the children's residence and domicile to Wilbarger county and contiguous counties. (2) Section 105.002 reads, in relevant part:
(c) In a jury trial (1) a party is entitled to a verdict by the jury on the issues of . . . ( D) the determination of the primary residence of the child. . . . (d) The court may not contravene a jury verdict on an issue submitted under Subsection (c)(1). . . .
Tex. Fam. Code Ann. § 105.002(c)(1)(D) and (d) (Vernon 2002). The divorce decree contains provisions establishing the geographical area for the children's primary residence in accord with the jury's determination. The court's September 4 order transferred venue of the proceeding, but did not modify the decree.
Relator contends that the court's order of transfer impermissibly nullifies the jury's determination of the children's residence. We disagree. Relator confuses transfer of venue with a modification of the terms of the divorce decree. If a suit to modify or a motion to enforce an order is filed in the court having continuing exclusive jurisdiction over the suit and a party makes a timely motion to transfer the proceeding to another county in this state, transfer is a mandatory ministerial duty if the child has resided in the other county for six months or longer. Tex. Fam. Code Ann. § 155.201(b). Proffer v. Yates, 734 S.W.2d 671, 673 (Tex. 1987) (referring to section 11.06, the predecessor to section 155.201).
When a suit affecting a parent-child relationship is transferred, all the proceedings are continued as if they were brought originally in the court to which it is transferred. Tex. Fam. Code Ann. § 155.206(a). The judgment or order transferred has the same effect as when it was originally rendered and must be enforced just as it would have been in the originating court. Tex. Fam. Code Ann. § 155.206(b). The court to which the proceeding is transferred is required to enforce judgments or orders of the transferring court and has the power to punish disobedience of orders issued by the transferring court, whether they occurred before or after the transfer. Tex. Fam. Code. Ann. § 155.206(c) and (d). Both parties may pursue their pending motions in Montgomery County. See In re Kramer, 9 S.W.3d 449, 451 (Tex.App.-1999, orig. proceeding).
Relator, relying on In re C.R.O., 96 S.W.3d 442, 447 (Tex.App.-Amarillo 2002, no writ) asserts that transferring the case also undermines the public policy of the State of Texas which encourages frequent contact of children with their parents and encourages parents to share in the rights and duties of raising their children. Tex. Fam. Code Ann. § 153.001(a). In re C.R.O. did not concern a mandatory transfer within the State of Texas. It involved the effort of a father to prohibit his wife from moving from Texas to Hawaii with their two children. The court designated the residence of the children as Fort Bend County, Texas and contiguous counties, subject to the father maintaining his residence in those counties. The court found that allowing the children to move to Hawaii would have severely impacted their relationship with their father due to the long distance involved. We do not find the facts and issues presented to the court in In re C.R.O. relevant to this case.
It is relator's burden to establish he is entitled to the relief being requested. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992); see Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985). Relator has failed to meet that burden. The trial court performed a mandatory ministerial duty in ordering the proceedings transferred to Montgomery County. The request for a writ of mandamus is denied.
James T. Campbell
Justice
1. Hereafter Chad Clifton Magee will be referred to as relator and Kristi Magee will be referred to as Kristi.
2. Section 105.002 was modified effective September 1, 2003. Because this suit was filed before the effective date, it is governed by the law in effect on the date that suit was filed.