The Petition br Writ ol landanius is conditionally GRANTED; Opinion Filed February
13, 2013.
In The
(niirt uf Apjiczth
Fitt1! Ditnct UI (!CXZi at a1ht
No. 05-1 3-00001 -CV
IN RE JAMES MATTHEW HURLEY, Relator
On Appeal from the 15th Judicial District Court
Grayson County, Texas
Trial Court Cause No. FAI2-14l9
OPINION
Befbre Justices Moseley, Francis and Fillmore
Opinion by Justice Moseley
Relator tiled this petition for writ of mandamus complaining that the trial court ciTed in
transferring his divorce and suit affecting the parent-child relationship (SAPCR) from Grayson
County to Cameron County. In order to obtain mandamus relief, relator must show both that the
trial court has abused its discretion and that he has no adequate appellate remedy, In re
Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding): Walker v. Packer,
827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). We agree that the trial court abused its
discretion in transferring the case and that relator has no adequate remedy by appeal. We
therefore conditionally grant the petition for writ of mandamus.
Relator filed his original petition for divorce and SAPCR in Grayson County on
September 10, 2012. At the time, no other court had continuing jurisdiction over the children
and relator had lived in Grayson County for more than ninety days, making Grayson County a
proper venue for both the divorce and the SAPCR. In response, real party in interest Yvonne
Hurley filed an answer containing a motion to transfer venue to Cameron County. where she
lived with the minor children. After a hearing, the Court granted the motion to transfer venue
and transferred both the divorce and the SAPCR to Cameron County. Relator’s motion for
reconsideration was denied.
Relator and real party in interest agree that Grayson County was a proper county for the
filing of the divorce proceeding. However, real party in interest asserts that the divorce action
could be transferred either under TEx. PAM. CODE ANN. § 155.202(b) (West 2008) (permitting
transfer of SAPCR for convenience of parties and witnesses and in the interest of justice) or
under TEx. Civ. PRAC. & REM. CODE ANN. § 15.002 (West 2002) (same). However, neither of
these discretionary transfer provisions applies to the divorce action. The venue provisions of the
civil practice and remedies code do not apply to cases governed by the family code. See in re
tIabors, 276 S.W.3d 190, 194 (Tex. App.—Houston th
1
[ 4
Dist.] 2009, orig. proceeding) (15.002
did not apply to SAPCR).
Moreover, the Texas Family Code makes a distinction between the proper venue of a
divorce and the proper venue of a SAPCR. See TEx. PAM. CODE ANN. § 6.30 1 (West 2006)
(jurisdiction of divorce proper when petitioner has been resident of state for six months and
resident of county for ninety days); § 6.406 (requiring joinder of SAPCR with divorce
proceeding unless another court has continuing jurisdiction of children); § 103.001(a) (venue for
SAPCR is in county where child resides unless venue is fixed by suit for divorce). Thus §
155.202(b) cannot be used to transfer relator’s divorce action to Cameron County against his
wishes.
The trial con1 could, in other circumstances. transfer the SAPCR to Cameron County
under I 55 2fi2( b aller iinding that county more convenient for the parties. However, it the
SAPCR were transfirred to Cameron county in this case, relator would have the right to
effectuate a mandatory transfer back to Grayson County. Sec TEx. FAM. CODE ANN. §
155 201(a) (WLSt 2008) (requiting transfer of SAPCR to county whcre divorce is pcnding upon
motion of a partv. Because the divorce is not transferrable, we find it an abuse of the trial
court’s discretion to transfer the SAPCR to another county over relator’s objection. The family
code requires that the divorce and the SAPCR, properly tiled, must proceed together in the
county of relator’s choosing. In this case, venue must remain in Grayson County.
Because the trial court abused its discretion in transferring the case and that error cannot
be remedied by appeal, we conditionally GRAN1’ relator’s petition for writ of mandamus. The
writ will issue only if the trial court fails to vacate its November 1 5, 2012 “Order Granting
Transfer of Venue to Cameron County. Texas and Temporary Visitation Provision for the
Children” and his December 10, 2012 order denying reconsideration of the November 15 order
and fails to render an order denying the motion to transfer venue. We DENY relator’s motion
for emergency relief as moot.
JM MOSELEY
AUST1CE
13000 1F.P05