In Re Kimberly Cole, Relator v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 21, 2023
• Docket: 07-23-00002-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-23-00002-CV

IN RE KIMBERLY COLE, RELATOR

ORIGINAL PROCEEDING

March 21, 2023 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and YARBROUGH, JJ.

In this original proceeding, Kimberly Cole, Relator, petitions this Court to issue a

writ of mandamus against the Hon. Tom Brummett, Judge of the County Court at Law

Number Two in Lubbock County, ordering him to vacate his order denying her access to

the transcript of the trial court’s interview with Relator’s children. We deny the petition.

BACKGROUND

In the underlying suit affecting the parent-child relationship, Relator filed a motion

requesting that the trial court confer with the children in chambers and that the record of

the interview be sealed. The trial court subsequently interviewed two of Relator’s children. See TEX. FAM. CODE ANN. § 153.009(a), (b). A record of the interviews was

made. See id. at (f) (“A record of the interview shall be part of the record in the case.”).

Interim temporary orders were entered by the trial court on November 9, 2022.

Relator then filed a motion seeking the release of the transcript of the trial court’s

interviews with the children, which the trial court judge, the Honorable Drue Farmer,

denied on December 20, 2022. In January, Relator filed a petition for writ of mandamus

in this Court. Because Judge Farmer’s term expired on December 31, 2022, we abated

to allow her successor, Judge Brummett, to act on Relator’s motion. See In re Cole, No.

07-23-00002-CV, 2023 Tex. App. LEXIS 78, at *1–2 (Tex. App.—Amarillo Jan. 9, 2023,

orig. proceeding) (order). Judge Brummett also denied Relator’s request to have the

transcript released but ordered that it be forwarded to this Court under seal. Relator then

filed the instant amended petition for writ of mandamus, alleging that the trial court abused

its discretion by denying her motion to release the transcript.

ANALYSIS

Mandamus is an extraordinary remedy granted only when a relator can show that

(1) the trial court clearly abused its discretion, and (2) no adequate appellate remedy

exists. In re H.E.B. Grocery Co., L.P., 492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding)

(per curiam). A trial court clearly abuses its discretion when it reaches a decision so

arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Walker

v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). When seeking

mandamus relief, the relator bears the burden of proving these two requirements. Id. at

840. Mandamus has traditionally been an extreme measure to be utilized only when there

2 has been a violation of a clear legal right possessed by the relator and when there is a

clear legal duty to act on behalf of the respondent. Pat Walker & Co. v. Johnson, 623

S.W.2d 306, 308 (Tex. 1981) (orig. proceeding); Neville v. Brewster, 352 S.W.2d 449,

452 (Tex. 1961) (orig. proceeding). Appellate courts will not intervene to control trial court

rulings when there is an adequate remedy by appeal. State Bar of Tex. v. Heard, 603

S.W.2d 829, 833 (Tex. 1980) (orig. proceeding).

Relator asserts that she is preparing to present a petition for mandamus regarding

the underlying interim temporary orders and that she desires to incorporate the transcript

of the interviews into her forthcoming mandamus. Relator contends that her substantial

rights have been prejudiced “because, when a record is incomplete, this Court must

presume that the missing portion of the record supports the trial court’s judgment.” See,

e.g., Ex parte Savelle, 398 S.W.2d 918, 921 (Tex. 1966) (orig. proceeding) (in absence

of transcript, reviewing court must presume that there was evidence to support trial court’s

order). Relator further argues that in cases in which the trial court has received evidence

at the hearing giving rise to a mandamus challenge, the party seeking mandamus has an

obligation to provide transcripts of any relevant evidentiary hearings.1 TEX. R. APP. P.

52.7(a)(2).

Here, the trial court ordered that the transcript of the interviews be forwarded to

this Court under seal. If Relator petitions this Court for a writ of mandamus regarding the

1 We note that information obtained by the trial court in such interviews is “strictly supplemental to the evidence taken in court . . . .” In re A.C., 387 S.W.3d 673, 677 (Tex. App.—Texarkana 2012, pet. denied). The trial court may “either take into account the information learned at such an interview or ignore it in its entirety . . . .” Id. at 678. Thus, one cannot presume the transcript would be determinative of any particular outcome. See, e.g., In re J.N., No. 05-20-00695-CV, 2022 Tex. App. LEXIS 2678, at *14 (Tex. App.—Dallas Apr. 25, 2022) (mem. op.). 3 temporary orders and requests that the sealed transcript be provided to this Court, under

the order of the trial court, the sealed transcript will be part of the appellate record.

Based on our review of the petition, the real party in interest’s response, and the

record before us, we conclude that Relator has not established that the trial court’s

decision to deny her access to the sealed transcript was so arbitrary and unreasonable

as to constitute an abuse of discretion. Therefore, Relator has failed to establish that she

is entitled to the extraordinary remedy of mandamus relief.

CONCLUSION

For the foregoing reasons, we deny Relator’s request for mandamus relief.

Judy C. Parker Justice