OPINION
No. 04-11-00709-CV
IN RE Whitney Elaine LAWSON
Original Mandamus Proceeding 1
Opinion by: Sandee Bryan Marion, Justice
Sitting: Catherine Stone, Chief Justice
Sandee Bryan Marion, Justice
Steven C. Hilbig, Justice
Delivered and Filed: November 4, 2011
PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED
On September 27, 2011, relator Whitney Elaine Lawson filed a petition for writ of
mandamus, complaining of the trial court’s failure to transfer venue in a suit to modify the order
in a suit affecting the parent-child relationship. We conditionally grant mandamus relief.
BACKGROUND
In November of 2009, Lawson and real party in interest Jay Gabe Lackmeyer entered into
a final divorce decree in which they were each appointed joint managing conservators of their
child H.L. Whitney was given the “the exclusive right to designate the primary residence of the
child within Waco, Texas until August 1, 2011. On and after August 1, 2011 IT IS ORDERED
1
This proceeding arises out of Cause No. 2008-CI-20221, styled In the Interest of H.L., a child, pending in the 45th
Judicial District Court, Bexar County, Texas, the Honorable Barbara Hanson Nellermoe presiding. However, relator
complains of a ruling by Judge John D. Gabriel, presiding judge of the 131st District Court, Bexar County, Texas.
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that the child’s primary residence shall be within 100 miles of 9814 Gothia Ranch Helots Texas
[sic].” The record indicates that since the divorce Whitney and H.L. have resided in McLennan
County, Texas.
On August 3, 2011, Whitney filed a Motion to Transfer and Petition to Modify Parent-
Child Relationship in Bexar County, Texas, seeking to modify provisions of the decree and
requesting the trial court transfer the proceeding to McLennan County, Texas pursuant to
Chapter 155 of the Texas Family Code. The motion alleged “[t]he principal residence of the
child is in McLennan County, Texas, and has been in that county during the six-month period
preceding the commencement of this suit.” Also on August 3, 2011, Jay filed a Motion for
Enforcement of Possession or Access and Order to Appear, seeking to enforce the provision in
the final divorce decree requiring Whitney and the child to move within 100 miles of his
residence by August 1, 2011. On August 25, 2011, Jay filed an Affidavit Controverting Motion
to Transfer, asserting as follows:
The child’s primary residence is still Bexar County and Ms.
Whitney Elaine Lawson was allowed to move to McLenna[sic]
County only for a period of time and was to move within a 100
miles of Mr. Jay Gabe Lackmeyer’s place of residence by August
1, 2011 as indicated in the final decree.
On September 1, 2011, the trial court held a hearing on the motion to transfer, at which
Whitney testified H.L. has resided with her in McLennan County, Texas since the divorce in
2009. Jay’s attorney stipulated on the record that H.L. has physically been in McLennan County
for the preceding six months. Jay did not dispute that the child has resided in McLennan County
since 2009, but claimed that per the final divorce decree McLennan County was only intended to
be a temporary residence until August, 1, 2011. Therefore, Jay disputed that a transfer was
mandatory. At the conclusion of the hearing, the trial court denied Whitney’s motion to transfer,
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and the order was signed on September 15, 2011. This petition for writ of mandamus ensued.
Both Jay and the respondent were given an opportunity to respond to the petition filed in this
court; however, no response was filed.
ANALYSIS
Mandamus will issue only to correct a clear abuse of discretion for which the relator has
no adequate remedy at law. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004)
(orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding).
“A trial court has no ‘discretion’ in determining what the law is or applying the law to the facts,”
and “a clear failure by the trial court to analyze or apply the law correctly will constitute an
abuse of discretion.” Walker, 827 S.W.2d at 840. In a suit to modify the parent-child
relationship, the trial court has a mandatory ministerial duty under Family Code section 155.201
to transfer the suit to a county where the child has lived for six months or longer. See In re
Kramer, 9 S.W.3d 449, 450 (Tex. App.—San Antonio 1999, orig. proceeding) (citing Proffer v.
Yates, 734 S.W.2d 671, 673 (Tex. 1987) (orig. proceeding)). When the trial court fails to
transfer venue, mandamus relief is appropriate because an appeal is inadequate. See Proffer, 734
S.W.2d at 673.
Whitney complains the trial court abused its discretion by failing to transfer venue to
McLennan County in compliance with the mandatory provisions of the Texas Family Code. See
TEX. FAM. CODE ANN. §§ 155.201, 155.204 (West 2008). A transfer becomes mandatory as
follows:
If a suit to modify or a motion to enforce an order is filed in the
court having continuing, exclusive jurisdiction of a suit, on the
timely motion of a party the court shall, within the time required
by Section 155.204, transfer the proceeding to another county in
this state if the child has resided in the other county for six months
or longer.
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Id. § 155.201(b). Section 155.203 of the Family Code directs the trial court to look at the child’s
“principal residence” to determine the county of the child’s residence when determining if venue
must be transferred. See id. § 155.203 (providing “the court may not require that the period of
residence be continuous or uninterrupted but shall look to the child’s principal residence during
the six-month period preceding the commencement of the suit”).
It is undisputed that H.L. has resided in McLennan County for six months or longer. See
id. § 155.201(b). At the hearing, although it was stipulated H.L. resided in McLennan County,
Jay argued that H.L.’s residence in McLennan County since 2009 was temporary because the
divorce decree required Whitney to move within 100 miles of his residence by August 1, 2011.
However, it is mandatory under Family Code section 155.201 for the trial court to transfer the
suit to a county where the child has lived for six months or longer. See Kramer, 9 S.W.3d at 450
(citing Proffer, 734 S.W.2d at 673). In the trial court, Jay failed to cite to an exception to the
mandatory venue provision and we can find none applicable to this case. Therefore, we
conclude the mandatory provisions of section 155.201 control and cannot be negated by the
argument that H.L. resided in McLennan County only temporarily for two years based on the
provisions in the divorce decree that required Whitney to return by August 1, 2011. See Leonard
v. Paxson, 654 S.W.2d 440, 442 (Tex. 1983) (applying former Texas Family Code section
11.06). “To hold otherwise would defeat the legislature’s intent that matters affecting the parent-
child relationship be heard in the county where the child resides.” Id. Therefore, we conclude
that because the child resided in McLennan County for the six months preceding the
commencement of the modification suit, the trial court had a mandatory duty to transfer the
proceeding to McLennan County. See TEX. FAM. CODE §§ 155.201, 155.204.
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CONCLUSION
Because we conclude the trial court abused its discretion in failing to transfer the suit to
McLennan County, Texas we conditionally grant the writ of mandamus. The writ will issue only
if the trial court fails to transfer the suit within fourteen days.
Sandee Bryan Marion, Justice
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