in Re: Davie W. Rashell
This text of in Re: Davie W. Rashell (in Re: Davie W. Rashell) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-04-00050-CV
IN RE:
DAVIE W. RASHELL
                                                                                                                                                            Â
Original Mandamus Proceeding
                                                                                                                                                                                      Â
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
          Davie W. Rashell has filed a petition for writ of mandamus in which he asks this Court to order the Honorable Bill Peek, judge of the 202nd Judicial District Court, to set aside his order transferring a suit affecting the parent-child relationship to a court sitting in a different county. Rashell complains that the court did not follow the requirements of Tex. R. Civ. P. 87(1) and provide him forty-five days' notice of a hearing on the motion to transfer.
          Mandamus issues only when the mandamus record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law, and (2) the absence of a clear and adequate remedy at law. Cantu v. Longoria, 878 S.W.2d 131, 132 (Tex. 1994); Walker v. Packer, 827 S.W.2d 833, 839â40 (Tex. 1992). Mandamus is an extraordinary remedy that will issue only to correct a clear abuse of discretion or, in the absence of another statutory remedy, when the trial court fails to observe a mandatory statutory provision conferring a right or forbidding a particular action. Abor v. Black, 695 S.W.2d 564, 567 (Tex. 1985).
          Rashell states that the motion to transfer the suit was filed and granted on March 31, 2004. Rashell correctly points out the Texas Supreme Court has held it is an abuse of discretion, correctable by mandamus, for a trial court to rule on a motion to transfer venue without giving the parties the notice required by Tex. R. Civ. P. 87(1). HCA Health Servs. v. Salinas, 838 S.W.2d 246, 247â48 (Tex. 1992); Henderson v. O'Neill, 797 S.W.2d 905 (Tex. 1990). Based on those facts, he asks this Court to find that the trial court abused its discretion by transferring the case.
          The cited cases and statute do not apply to this situation. Transfers of existing and continuing cases involving the parent-child relationship are controlled by application of the Family Code. See Tex. Fam. Code Ann. §§ 155.201, 155.202 (Vernon 2002).
          Further, the information provided to this Court does not contain either the complained-of motion or order and does not otherwise provide the specific information that would permit us to review the trial court's action.
          Under these circumstances, we find this petition to be without merit.
          We deny the petition for writ of mandamus.
Â
                                                                           Jack Carter
                                                                           Justice
Date Submitted:Â Â Â Â Â Â April 21, 2004
Date Decided:Â Â Â Â Â Â Â Â Â April 22, 2004
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In The
Court of Appeals
                       Sixth Appellate District of Texas at Texarkana
                                               ______________________________
                                                            No. 06-10-00072-CR
                                               ______________________________
                               KYLON JEFFERY HENSON, Appellant
                                                               V.
                                    THE STATE OF TEXAS, Appellee
                                                                                                 Â
                                           On Appeal from the County Court at Law
                                                             Rusk County, Texas
                                                     Trial Court No. 08-03-107-CR
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