in Re: Janeen Smith

• Court: Court of Appeals of Texas
• Decided: August 13, 2014
• Docket: 03-14-00478-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-14-00478-CV

In re Janeen Smith

ORIGINAL PROCEEDING FROM HAYS COUNTY

MEMORANDUM OPINION

Relator Janeen Smith has filed a petition for writ of mandamus seeking relief from

orders entered in a custody-modification proceeding. First, Smith asserts that the trial court’s

temporary orders deprive her of her right as sole managing conservator to designate the children’s

permanent residence without the requisite showing that the order was necessary because the

children’s present circumstances would significantly impair the children’s physical health or

emotional development. See Tex. Fam. Code § 156.006(b)(1). In addition, Smith complains that

at the time the trial court entered the temporary orders, the 207th District Court of Caldwell County

still had continuing, exclusive jurisdiction over the suit affecting the parent child relationship and

no motion to transfer had been filed. Id. §§ 155.001, .201. Finally, Smith contends that the trial

court wrongfully refused to grant her motion to transfer the case to Travis County where, according

to her, the children have been residing. See id. § 155.201(b).

In custody cases, temporary orders and orders on motions to transfer venue are not

appealable, but are subject to mandamus relief. See Dancy v. Daggett, 815 S.W.2d 548, 549 (Tex.

1991) (holding mandamus relief from temporary orders was appropriate because “the trial court’s issuance of temporary orders [was] not subject to interlocutory appeal”); In re Wheeler,

177 S.W.3d 350, 352 (Tex. App.—Houston [1st Dist.] 2005, orig. proceeding) (explaining

that ruling on motion to transfer under section 155.201 of family code is not subject to

interlocutory appeal, but mandamus relief is available); In re Silverman, No. 03-09-00074-CV,

2009 WL 1099197, at *2 (Tex. App.—Austin Apr. 24, 2009, orig. proceeding) (mem. op.) (same).

As the party seeking relief, it is the relator’s burden to provide this Court with a sufficient record to

establish the right to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992). “Those

seeking the extraordinary remedy of mandamus must follow the applicable procedural rules. Chief

among these is the critical obligation to provide the reviewing court with a complete and adequate

record.” In re Le, 335 S.W.3d 808, 813 (Tex. App.—Houston [14th Dist.] 2011, orig. proceeding);

see Tex. R. App. P. 52.3(k), 52.7(a). “This court cannot make a sound decision based on an

incomplete picture.” In re Le, 335 S.W.3d at 813.

Here, Smith has failed to provide any record from which we could evaluate her claims

for mandamus relief. For instance, Smith argues that the trial court could not have reasonably

concluded that allowing the children to remain with her would significantly impair their physical

health or emotional development. However, Smith has not provided this Court with a copy of the

challenged temporary orders or with a record of the evidence, if any, considered by the trial court.

See Tex. R. App. P. 52.7(a); Walker, 827 S.W.2d 837. Likewise, although Smith argues that the trial

court abused its discretion in failing to transfer the case to Travis County, we have not received a

copy of any pleadings, motions, or other documents relevant to this claim. See Tex. R. App. P.

2 52.7(a). Smith also has not provided a record of any hearing on her motion to transfer, if one was

held. See id.

Because we lack a sufficient record, we cannot conclude that Smith is entitled to

mandamus relief. Consequently, Smith’s petition for writ of mandamus and motion for emergency

relief are denied. See Tex. R. App. P. 52.8(a).

_______________________________________

Scott K. Field, Justice

Before Justices Puryear, Pemberton, and Field

Filed: August 13, 2014