Motion for Rehearing Granted; Petition for Writ of Mandamus Denied, Memorandum Opinion of March 20, 2006 Withdrawn, and Substituted Memorandum Opinion filed May 4, 2006.
In The
Fourteenth Court of Appeals
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NO. 14-06-00188-CV
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IN RE TALIS LEE RANDE DELANEY, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
S U B S T I T U T E D M E M O R A N D U M O P I N I O N
On March 20, 2006, we issued a memorandum opinion denying relator=s petition for writ of mandamus because the petition did not comply with the Rules of Appellate Procedure. Relator filed a timely motion for rehearing. We grant the motion for rehearing, but after reviewing relator=s petition on its merits, we deny relator=s request for mandamus relief. We withdraw our previous memorandum opinion of March 20, 2006, and issue this substituted memorandum opinion in its place.[1]
Following a hearing on February 6, 2006, the trial court signed temporary orders designating real party Thomas Olivarez as primary conservator of the couple=s child. In her mandamus petition, relator Talis Lee Rande Delaney challenges the trial court=s temporary orders as an abuse discretion claiming there was no evidence before the court to support the change of conservatorship and she did not receive the notice of the hearing as required under section 105.001(b) of the Family Code. See Tex. Fam. Code Ann. ' 105.001(b) (Vernon Supp. 2005). However, pending before the trial court at the time of the February 6 hearing was an affidavit of selection of managing conservator and a motion to confer with the child. See Boriack v. Boriack, 54 S.W.2d 237, 239 (Tex. App.CCorpus Christi 1976, writ dism=d) (stating affidavit of selection was intended by the Legislature to be received and considered as evidence). Relator filed a motion in opposition to the affidavit of selection, and she appeared at and participated in the February 6 hearing. See Werner v. Colwell, 909 S.W.2d 866, 869B70 (Tex. 1994). Therefore, relator has failed to establish she is entitled to the requested relief and, accordingly, we deny relator=s petition for writ of mandamus.
PER CURIAM
Petition Denied and Substituted Memorandum Opinion filed May 4, 2006.
Panel consists of Justices Hudson, Fowler, and Seymore
[1]Because the dispositive issues are clearly settled in law, we issue this substituted memorandum opinion pursuant to rule 52.8(d) of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 52.8(d).