In Re Gustavo Resendez v. the State of Texas

Opinion

NUMBER 13-23-00312-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN RE GUSTAVO RESENDEZ

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Justices Tijerina, Silva, and Peña Memorandum Opinion by Justice Silva1

By petition for writ of mandamus, relator Gustavo Resendez contends that the trial

court abused its discretion by not granting his motion to transfer venue of the underlying

suit from Cameron County to Harris County. See TEX. FAM. CODE ANN. § 155.204. Relator

filed an original petition in a suit affecting the parent-child relationship in the 312th District

Court of Harris County, Texas, but the judge of that court transferred venue of the case

1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not

required to do so. When granting relief, the court must hand down an opinion as in any other case.”); id. R. 47.4 (distinguishing opinions and memorandum opinions). to Cameron County. In Cameron County, relator filed a motion to transfer venue back to

Harris County, and the trial court denied that motion. Relator contends that the trial court

failed to comply with its “mandatory, ministerial duty” to transfer the case because: (1) the

real party in interest Miranda Ramos failed to timely file a controverting affidavit; (2) the

factual allegations in Ramos’s response to relator’s motion to transfer venue did not

controvert relator’s factual contentions regarding venue; and (3) there was no evidence

supporting venue in Cameron County. We deny the petition for writ of mandamus.

Mandamus is an extraordinary and discretionary remedy. See In re Allstate Indem.

Co., 622 S.W.3d 870, 883 (Tex. 2021) (orig. proceeding); In re Garza, 544 S.W.3d 836,

840 (Tex. 2018) (orig. proceeding) (per curiam); In re Prudential Ins. Co. of Am., 148

S.W.3d 124, 138 (Tex. 2004) (orig. proceeding). The relator must show that: (1) the trial

court abused its discretion, and (2) the relator lacks an adequate remedy on appeal. In re

USAA Gen. Indem. Co., 624 S.W.3d 782, 787 (Tex. 2021) (orig. proceeding); In re

Prudential Ins. Co. of Am., 148 S.W.3d at 135–36; Walker v. Packer, 827 S.W.2d 833,

839–40 (Tex. 1992) (orig. proceeding). Mandamus is available to compel the mandatory

transfer of venue in a suit affecting the parent-child relationship because a trial court that

improperly refuses its ministerial duty to transfer has abused its discretion. Proffer v.

Yates, 734 S.W.2d 671, 673 (Tex. 1987) (orig. proceeding) (per curiam); In re Venegas,

595 S.W.3d 341, 344 (Tex. App.—Eastland 2020, orig. proceeding).

The Court, having examined and fully considered the petition for writ of mandamus,

the response filed by Ramos, and the applicable law, is of the opinion that relator has not

met his burden to obtain relief. See TEX. FAM. CODE ANN. § 155.204(b); In re Thompson,

2 434 S.W.3d 624, 629 (Tex. App.—Houston [1st Dist.] 2014, orig. proceeding [mand.

denied]). Accordingly, the motion to stay all underlying proceedings previously carried

with the case is now dismissed as moot. We deny the petition for writ of mandamus.

CLARISSA SILVA Justice

Delivered and filed on the 2nd day of August, 2023.