in Re Nancy Graciela Cisneros

Opinion

NUMBER 13-20-00094-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN RE NANCY GRACIELA CISNEROS

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Justices Benavides, Hinojosa, and Tijerina Memorandum Opinion by Justice Hinojosa1

Relator Nancy Graciela Cisneros filed a petition for writ of mandamus in the above

cause on February 13, 2020. Through this original proceeding, Nancy contends that the

trial court erred in concluding that she lacks standing to seek conservatorship of minor

child, S.D.E. 2 We conditionally grant the petition for writ of mandamus.

1 See TEX. R. APP. P. 52.8(d) (“When granting relief, the court must hand down an opinion as in any other case,” but when “denying relief, the court may hand down an opinion but is not required to do so.”); see also id. R. 47.4 (distinguishing opinions and memorandum opinions). 2This original proceeding arises from trial court cause number F-0188-20-4 in the County Court at Law No. 4 of Hidalgo County, Texas, and the respondent is the Honorable Federico “Fred” Garza Jr. See TEX. R. APP. P. 52.2. I. BACKGROUND

The underlying matter arises from a divorce proceeding between Sherie Esparza

and Nancy Graciela Cisneros. S.D.E. was born on October 6, 2003 and is Sherie’s

biological daughter and Nancy’s stepdaughter.

On January 13, 2020, Sherie filed an “Original Petition for Divorce and Temporary

Restraining Order.” The petition alleged that Sherie and Nancy were married on or about

June 16, 2018 and ceased to live together as spouses on or about January 5, 2020. The

petition stated that the McAllen Municipal Court had entered a protective order, expiring

on or about March 6, 2020, removing S.D.E. from Sherie and giving custody to Nancy, “a

non-parent and a non-blood relative,” without evidence or a hearing. The petition alleged,

inter alia, that Nancy had denied Sherie and Sherie’s mother, Barbara Esparza, access

to S.D.E., that Nancy was originally from Mexico and “it is feared that she will kidnap the

minor child to Mexico,” that Nancy had committed various actions such as removing

Sherie’s access to S.D.E. at her high school, taking her to a doctor “without her mother’s

consent,” and cutting off all access to S.D.E. from Sherie’s side of the family. Sherie

alleged that Nancy lacked standing to have custody of S.D.E., and she sought a

temporary restraining order to return S.D.E. to her custody and possession, or

alternatively, that custody and possession of S.D.E. be given to biological grandmother

Barbara. Without providing details, Sherie alleged that S.D.E. was in “imminent danger”

because of Nancy’s custody and possession. The petition was supported by a copy of the

“Magistrate’s Order of Emergency Protection” issued by the McAllen Municipal Court,

which identified Sherie as the “Defendant,” stated that she was arrested for an offense

involving family violence or another specified penal code offense, and provided an order

2 of emergency protection for Nancy and S.D.E. for a duration of sixty-one days. The

petition was also accompanied by Sherie’s affidavit supporting some of the factual

allegations in the petition.

On January 13, 2020, the trial court entered a “Temporary Restraining Order” in

Sherie’s favor and set a hearing for January 27, 2020 to determine whether the temporary

restraining order should be made a temporary injunction pending final hearing. This order

denied Nancy possession of S.D.E.

On January 24, 2020, Nancy filed an “Original Counter-Petition[] for Divorce and

in Suit Affecting the Parent Child Relationship.” Nancy alleged that she was S.D.E.’s

stepmother, that she had standing to bring the suit, and that she “had actual care, control,

and possession of the child for at least six months ending not more than 90 days

preceding the date of the filing of the petition.” She alleged that it was in S.D.E.’s best

interest that she be appointed her sole managing conservator and that Sherie had

“engaged in a history or pattern” of family violence and child abuse. Nancy argued that

awarding Sherie access to S.D.E. would endanger S.D.E.’s physical health and emotional

welfare.

On January 27, 2020, the trial court held an evidentiary hearing on Sherie’s request

for injunctive relief. According to the record of that hearing, counsel for the parties

engaged in rancorous and angry argument with frequent and bitter interruptions and

repeated instances where counsel accused each other and their respective clients of

“blatant” lying and asserting facts that constituted, e.g., “a total lie straight from the pit of

hell.”

3 At the hearing, counsel for Sherie represented that S.D.E. had been residing with

Barbara, her biological grandmother, for the past fourteen days at the family’s home.

Sherie’s counsel argued that Nancy was a Mexican citizen and that there was a “great

concern” that she would “abduct the child” and take her to Mexico because she was in

possession of the child’s birth certificate. Sherie requested that there be “no contact”

between Nancy and S.D.E. because “[t]hey’re not blood-related; she’s a non-parent.”

Counsel asserted that Nancy’s standing was a constitutional issue and argued that it was

“against public policy to take a child away from their mother just because [Nancy] wants

to.” Sherie’s counsel argued that Nancy was attempting to “get-even” with Sherie

“because [Nancy] has threatened [Sherie] many, many times” that Sherie should not

leave Nancy “because if you leave me I’m going to take your child and I’m going to leave

you in the street.” Counsel argued that Nancy “has no standing or protected interest that

allows her to interfere with [Sherie’s] constitutional right to raise the child as she sees fit.”

Nancy’s counsel, in contrast, asserted that there was “no danger” of Nancy

abducting S.D.E. because Nancy was a legal permanent resident of the United States

who had resided in this country for years. She alleged that Sherie had “strangled” both

Nancy and S.D.E. in the domestic violence event that prompted the municipal court

protective order, which had occurred on January 5, 2020, and that there was an

“extensive history of domestic violence in this relationship, also involving the child.”

Nancy’s counsel argued that S.D.E. did not have a good relationship with Barbara and

that a Child Protective Services worker, who was present to provide testimony, was of the

opinion that S.D.E. did not feel comfortable living with Barbara because Barbara was

present during domestic violence involving S.D.E. but failed to protect her.

4 During the hearing, the trial court expressly queried whether the parties were ready

to argue standing, and they proceeded to address the issue. The parties and trial court

discussed the application and requirements of § 102.003(9) of the Texas Family Code,

which governs nonparent standing. See TEX. FAM. CODE ANN. § 102.003(a)(9) (requiring

a nonparent to have actual care, control, and possession of the child for at least six

months ending not more than ninety days preceding the date of the filing of the petition).

The trial court stated that the statute “gives everybody—anybody standing.” The trial court

appeared to be concerned that S.D.E. was born before Sherie and Nancy married, that a

“maid” or “nanny” could meet the requirements under the statute, and that the statute

presumes that “there’s no biological parent around.” The trial court expressly noted that

Sherie, the parent, is “available” and has not “relinquished” or “abandoned” S.D.E.

Although the parties had numerous witnesses prepared to testify, ultimately, the

only witness to testify at the hearing was Nancy. Nancy testified that at the time of the

hearing, S.D.E. was in the tenth grade and studied math, biology, history, and English,

and took pre-AP classes. Nancy testified that S.D.E.’s grades were good, and she

participated in both swimming and soccer extracurricular activities.

According to Nancy, she first met Sherie in 2006 and they began dating at the end

of 2010. Nancy met S.D.E. immediately and stated that she saw her “[j]ust about all the

time.” Nancy and Sherie moved in together after three months of dating, and S.D.E. lived

with them from that date until January 2020, when the domestic violence issue occurred.

There were no other members of their household. Nancy testified that when they first

started living together, she taught S.D.E. the alphabet and how to read. Nancy also took

S.D.E. to school, helped her with her homework, made her lunch, took her to the doctor

5 and dentist, and attended school activities with her. She specified that she had been

taking S.D.E. to school for eleven years and had been helping her with her homework for

“[a]ll the years that I’ve been with her; 11 years.” She made S.D.E. lunch “the majority of

the time.” Nancy testified that she was the only one who took S.D.E. to the doctor when

she needed to go. Nancy attended S.D.E.’s school activities “[a]ll the time that she needs.”

Nancy stated that she was “in charge” of her family. She denied that (1) Sherie was the

only one who disciplined S.D.E., (2) Sherie did not allow her to discipline S.D.E., and (3)

Sherie did not let her discipline S.D.E. “because [she is] so mean to the child.”

Nancy testified that S.D.E. called her “Mommy” and called Sherie “Mom.” Nancy

testified that when S.D.E. had a problem, she approached her to discuss it the “majority”

of the time, as opposed to approaching Sherie.Nancy described S.D.E.’s relationship with

Sherie as “good,” and asserted that they were “really close,” but stated that Sherie and

S.D.E. did not spend “a lot” of time together because S.D.E. is “always with me all the

time.” Nancy said if they were going to cook or clean, “it’s always with me.” Nancy testified

that she was “close” with S.D.E. at the present time, but that she was unable to attend

her school events because she was prohibited by the trial court’s restriction. She had

previously attended S.D.E.’s soccer and swimming events.

Although the record contains some testimony and allegations regarding alleged

malfeasance by the parties, the trial court refused to allow additional testimony regarding

domestic violence or to admit a videotape of the alleged incident that had occurred in

January. After Nancy testified, the trial court stated that “I’m ready to rule that she has no

standing” and stated that she lacked standing. The trial court rejected Nancy’s argument

that she possessed standing under § 102.003(a)(9) because she had actual care,

6 custody, and control of S.D.E. for the past ten years, by reiterating “No” five separate

times. The trial court repeatedly stated: “I think there’s no standing;” “I don’t think she has

standing;” “I don’t think there’s standing”; and “I don’t think she has standing.” The trial

court ultimately instructed counsel for Sherie to “[g]ive me an order for me to sign or

something so they can go and appeal or whatever,” because “she’s got no standing.”

After counsel agreed to provide the court with an order, the trial court again reiterated that

“I don’t think she’s got standing right now.” Counsel for Nancy requested that the trial

court allow her to finish presenting her evidence, and the trial court denied that request

on grounds that he had “heard enough evidence already.” Finally, the trial court again

asserted “[t]here’s no standing.”

On January 29, 2020, the trial court signed temporary orders, which appointed

Barbara as temporary managing conservator for S.D.E. with the exclusive use and

possession of Sherie and Nancy’s residence, and ordered that S.D.E. reside at the

residence with Barbara. The court’s order expressly “prohibited” Nancy from the

residence and also provided that neither Sherie nor Nancy could have “visitation with the

child for the interim.” The order stated that “[a]fter the criminal proceeding involving the

alleged assault between the parties has been resolved, and after the investigation by

Child Protection Service is fully completed, then this Court will reconsider this order on

appropriate motion.”

On January 30, 2020, Nancy filed a “Motion to Reconsider Ruling on Standing.”

Nancy’s motion summarized some of the testimony adduced at the hearing and argued

that she had standing “because she had actual care, control, and possession of S.D.E.

7 for at least six months ending not more than 90 days before this suit was filed.” The trial

court subsequently set the case for final hearing to be held on April 6, 2020.

This original proceeding ensued. By one issue, Nancy asserts that the trial court

abused its discretion in finding that she did not have standing to seek conservatorship of

S.D.E. when she resided with S.D.E. for approximately a decade, provided for her needs,

and exercised authority similar to that of a parent. The Court requested that Sherie, or

any others whose interest would be directly affected by the relief sought, file a response

to the petition for writ of mandamus. See TEX. R. APP. P. 52.2, 52.4, 52.8. Sherie and

Barbara filed a joint response to the petition, Nancy filed a reply thereto, and Sherie and

Barbara filed an additional response.

II. MANDAMUS

Mandamus is an “extraordinary” remedy. In re Sw. Bell Tel. Co., L.P., 235 S.W.3d

619, 623 (Tex. 2007) (orig. proceeding); see In re Team Rocket, L.P., 256 S.W.3d 257,

259 (Tex. 2008) (orig. proceeding). In order to obtain mandamus relief, the relator must

show that the trial court clearly abused its discretion and that the relator has no adequate

remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004)

(orig. proceeding); see In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 462 (Tex. 2008)

(orig. proceeding).

Sherie and Barbara argue that mandamus is not designed to review “every ruling”

and the trial court’s ruling here is not susceptible to review by such an original proceeding.

However, mandamus is the appropriate mechanism to challenge temporary orders made

while a suit is pending because such orders are interlocutory and not appealable. In re

Derzapf, 219 S.W.3d 327, 334 (Tex. 2007) (orig. proceeding) (per curiam). Mandamus is

8 also available to review certain rulings pertaining to standing in a suit affecting the parent-

child relationship. See, e.g., In re Martin, 523 S.W.3d 165, 169 (Tex. App.—Dallas 2017,

orig. proceeding); In re McDaniel, 408 S.W.3d 389, 396 (Tex. App.—Houston [1st Dist.]

2011, orig. proceeding); In re Shifflet, 462 S.W.3d 528, 541–42 (Tex. App—Houston [1st

Dist.] 2015, orig. proceeding).

We conclude that Nancy would lack an adequate remedy by appeal, and

accordingly, mandamus review is therefore appropriate. See In re Derzapf, 219 S.W.3d

at 335; In re Martin, 523 S.W.3d at 169; In re McDaniel, 408 S.W.3d at 396; In re Shifflet,

462 S.W.3d at 541–42.

III. ORAL RULING

Before addressing the merits of this original proceeding, we note that we do not

have a written order signed by the trial court containing the challenged ruling regarding

Nancy’s standing. Sherie and Barbara further argue that the trial court’s orders are

“insufficiently clear” to support mandamus.

Mandamus may be based on an oral ruling. See In re Nabors, 276 S.W.3d 190,

192 n.3 (Tex. App.—Houston [14th Dist.] 2009, orig. proceeding); In re Bill Heard

Chevrolet, Ltd., 209 S.W.3d 311, 314 (Tex. App.—Houston [1st Dist.] 2006, orig.

proceeding); In re Bledsoe, 41 S.W.3d 807, 811 (Tex. App.—Fort Worth 2001, orig.

proceeding). However, the ruling must be clear, specific, enforceable, and adequately

shown by the record. In re State ex rel. Munk, 448 S.W.3d 687, 690 (Tex. App.—Eastland

2014, orig. proceeding); In re Bledsoe, 41 S.W.3d at 811; see also TEX. R. APP. P.

52.3(k)(1)(A) (“The appendix must contain . . . a certified or sworn copy of any order

complained of, or any other document showing the matter complained of.”).

9 Here, we have been provided with the record of the hearing containing the trial

court’s ruling on Nancy’s standing. See In re Bill Heard Chevrolet, Ltd., 209 S.W.3d at

316 (stating that the mandamus record must include either the trial court’s written order

or a “reporter’s record reflecting an oral ruling in open court”). After reviewing the

reporter’s record, we conclude that the trial court’s oral ruling is clear, specific, and

enforceable and is adequately shown by the record. The trial court unequivocally and

clearly repeatedly ruled that Nancy lacked standing. We reject Sherie and Barbara’s

arguments otherwise. We proceed with our review of the merits.

IV. STANDING

Standing is a component of subject-matter jurisdiction and is a constitutional

prerequisite to maintain suit. See In re H.S., 550 S.W.3d 151, 155 (Tex. 2018); In re

M.K.S.-V., 301 S.W.3d 460, 463 (Tex. App.—Dallas 2009, pet. denied) (op. on reh’g).

“Generally, standing involves a threshold determination of whether a plaintiff has a

sufficient ‘justiciable interest’ in the suit’s outcome to be entitled to a judicial

determination.” In re H.S., 550 S.W.3d at 155; see In re A.D.T., 588 S.W.3d 312, 316

(Tex. App.—Amarillo 2019, no pet.); In re SSJ-J, 153 S.W.3d 132, 134 (Tex. App.—San

Antonio 2004, no pet.). In assessing standing, the merits of the underlying claims are not

at issue. See In re H.S., 550 S.W.3d at 155 (“Here, the merits of Grandparents’ claims—

that is, whether they should be appointed Heather’s managing conservators with the right

to designate her primary residence—have not yet been considered by any court and are

not before us.”); In re Smith, 260 S.W.3d 568, 573 (Tex. App.—Houston [14th Dist.] 2008,

no pet.) (explaining, in a suit involving grandparent access, that “whether the grandparent

10 ultimately will succeed is a different question than whether the grandparent has the right

simply to bring suit”).

The party asserting standing bears the burden of proving that issue. In re A.D.T.,

588 S.W.3d at 316; In re S.M.D., 329 S.W.3d 8, 13 (Tex. App.—San Antonio 2010, pet.

dism’d). In assessing standing, a reviewing court should look to the pleadings but may

consider relevant evidence of jurisdictional facts when necessary to resolve the

jurisdictional issues raised. In re H.S., 550 S.W.3d at 155; Bland Indep. Sch. Dist. v. Blue,

34 S.W.3d 547, 555 (Tex. 2000); In re A.D.T., 588 S.W.3d at 316. Standing is a question

of law that the court reviews de novo. In re H.S., 550 S.W.3d at 155; In re A.D.T., 588

S.W.3d at 316; Mauldin v. Clements, 428 S.W.3d 247, 262 (Tex. App.—Houston [1st

Dist.] 2014, no pet.). If a party does not have standing, the court is deprived of subject

matter jurisdiction over the case, and the merits of the plaintiff’s claims cannot be litigated

or decided. In re H.S., 550 S.W.3d at 155; Rolle v. Hardy, 527 S.W.3d 405, 415 (Tex.

App.—Houston [1st Dist.] 2017, no pet.). However, if the evidence creates a question of

fact on standing, then the matter will be resolved by the fact finder. In re Shifflet, 462

S.W.3d 528, 538 (Tex. App.—Houston [1st Dist.] 2015, orig. proceeding); In re M.J.G.,

248 S.W.3d 753, 758 (Tex. App.—Fort Worth 2008, no pet.).

Standing in a SAPCR is governed by the family code. See In re E.G.L., 378 S.W.3d

542, 547 (Tex. App.—Dallas 2012, pet. denied). A party seeking relief in a SAPCR must

allege and establish standing within the parameters of the language used in the relevant

statute. See In re Tinker, 549 S.W.3d 747, 751 (Tex. App.—Waco 2017, orig. proceeding

[mand. denied]). “Because standing to bring a SAPCR is governed by statute, we apply

statutory-interpretation principles in determining whether a plaintiff falls within the

11 category of persons upon whom such standing has been conferred.” In re H.S., 550

S.W.3d at 155.

Here, Nancy asserts that she has standing to seek conservatorship of S.D.E.

pursuant to § 102.003(a)(9) of the Texas Family Code. See TEX. FAM. CODE ANN.

§ 102.003(a)(9). Section 102.003, entitled “General Standing to File Suit,” provides that

an original suit may be filed at any time by “a person, other than a foster parent, who has

had actual care, control, and possession of the child for at least six months ending not

more than 90 days preceding the date of the filing of the petition.” Id. § 102.003(a)(9). In

computing the time necessary for standing under this section, the “court may not require

that the time be continuous and uninterrupted but shall consider the child’s principal

residence during the relevant time preceding the date of commencement of the suit.” Id.

§ 102.003(b). This language excludes nonparents who do not share a principal residence

with a child for the statutory time period from establishing standing under § 102.003(a)(9),

“regardless of how extensively they participate in caring for her.” In re H.S., 550 S.W.3d

at 156. A nonparent has standing under § 102.003(a)(9)’s language requiring “actual care,

control, and possession of the child” if, for the requisite six-month time period, the

nonparent served in a parent-like role by (1) sharing a principal residence with the child,

(2) providing for the child’s daily physical and psychological needs, and (3) exercising

guidance, governance, and direction similar to that typically exercised on a day-to-day

basis by parents with their children. Id. at 160. Section 102.003(a)(9) does not require the

nonparent to possess “ultimate” legal authority over the child or “exclusive” care and

control over the child or require that the nonparent’s provision of care to the child was

intended to have been permanent in nature. Id. at 157–60. Similarly, the statute does not

12 premise standing on whether the parents of the child “have wholly ceded or relinquished

their own parental rights and responsibilities.” Id. at 160.

V. APPLICATION

We examine the pleadings and relevant evidence of jurisdictional facts to

determine Nancy’s standing. See In re H.S., 550 S.W.3d at 155; Bland Indep. Sch. Dist.,

34 S.W.3d at 555; In re A.D.T., 588 S.W.3d at 316. Section 102.003 provides standing to

a nonparent “who has had actual care, control, and possession of the child for at least six

months ending not more than 90 days preceding the date of the filing of the petition.” TEX.

FAM. CODE ANN. § 102.003(a)(9). In her pleadings, Nancy asserted that she “had actual

care, control, and possession of [S.D.E.] for at least six months ending not more than 90

days preceding the date of the filing of the petition.” At the hearing, Nancy testified to

similar facts. Id. § 102.003(b). The pleadings and evidence thus support the statute’s

temporal requirements. See id.

As directed by the Texas Supreme Court, Nancy has standing under

§ 102.003(a)(9)’s language requiring “actual care, control, and possession of the child” if

she served in a parent-like role by (1) sharing a principal residence with the child, (2)

providing for the child’s daily physical and psychological needs, and (3) exercising

guidance, governance, and direction similar to that typically exercised on a day-to-day

basis by parents with their children. See In re H.S., 550 S.W.3d at 160. Nancy was

S.D.E.’s stepmother, and based on the evidence, their shared home was the principal

residence of the child. Again, based on the evidence, Nancy engaged with S.D.E. on a

daily basis and directly assisted with her education, supported her sports activities, and

provided any necessary medical needs for at least a decade. The record demonstrates

13 that Nancy exercised guidance, governance, and direction similar to that of a parent, as

typically exercised on a day-to-day basis. See id. at 160. There is no contrary evidence

in the record. And, contrary to the arguments at issue in the trial court, the statute does

not require an attempted adoption of S.D.E. or that Sherie be deceased or unavailable.

See id. at 157–60.

Based on the foregoing, we conclude that Nancy possessed standing under the

family code. See TEX. FAM. CODE ANN. § 102.003(a)(9); In re H.S., 550 S.W.3d at 160.

We proceed to address Sherie and Barbara’s remaining arguments contending otherwise.

A. Constitutionality

Sherie and Barbara assert that mandamus should be denied because Nancy did

not challenge all of the grounds for the trial court’s ruling. In support of this argument, they

specifically assert that Nancy never explained why § 102.003 of the Texas Family Code

was constitutional. We are not persuaded by this argument.

First, Sherie and Barbara’s arguments misstate the burden of proof. As the parties

making the constitutional challenge, they bore the burden of proof to establish that

§ 102.003 was unconstitutional. See Lund v. Giauque, 416 S.W.3d 122, 126 (Tex. App.—

Fort Worth 2013, no pet.). Second, Sherie and Barbara’s conclusory and vague

allegations regarding constitutionality, made during argument at the hearing, without

briefing or analysis, did not suffice to properly present this issue. See Dreyer v. Greene,

871 S.W.2d 697, 698 (Tex. 1993) (“As a rule, a claim, including a constitutional claim,

must have been asserted in the trial court in order to be raised on appeal.”); In re J.C.,

No. 02-18-00029-CV, 2019 WL 4019682, at *5, __ S.W.3d __, __ (Tex. App.—Fort Worth

Aug. 27, 2019, no pet.) (“[E]rror-preservation rules apply to constitutional challenges.”);

14 see also Miles v. Jerry Kidd Oil Co., 363 S.W.3d 823, 828–29 (Tex. App.—Tyler 2012, no

pet.). Third, if in fact the trial court based its ruling on the alleged unconstitutionality of the

statute, which assumption is not supported by the record, the Texas Supreme Court has

expressly considered the constitutionality of § 102.003 and has specifically held that

“properly construed,” the statute “does not unconstitutionally interfere with parents’

fundamental liberty interest in raising their children.” In re H.S., 550 S.W.3d at 163.

B. Unclean Hands

Sherie and Barbara further assert that mandamus relief should be denied because

Nancy lacks clean hands. Though mandamus may be a legal remedy, the equitable

doctrine of unclean hands plays a role in its availability. See Axelson, Inc. v. McIhany,

798 S.W.2d 550, 552 n.2 (Tex. 1990) (orig. proceeding) (stating that “[m]andamus is a

legal remedy, but it is governed to some extent by suitable principles” and “the doctrine

of unclean hands has been used to deny issuance of the writ.”); In re Jim Walter Homes,

Inc., 207 S.W.3d 888, 899 (Tex. App.—Houston [14th Dist.] 2006, orig. proceeding)

(stating the same). The doctrine normally applies to situations where one’s own conduct

in connection with the matter in dispute has been unconscientious, unjust or a want of

good faith and such conduct exposed the complaining party to injury. Id.; Thomas v.

McNair, 882 S.W.2d 870, 880–81 (Tex. App.—Corpus Christi–Edinburg 1994, no writ). A

party seeking to invoke this equitable doctrine must show that he has been seriously

harmed and the wrong complained-of cannot be corrected without applying the doctrine.

LDF Constr., Inc. v. Bryan, 324 S.W.3d 137, 149 (Tex. App.—Waco 2010, no pet.); In re

Jim Walter Homes, 207 S.W.3d at 899–900; Thomas, 882 S.W.2d at 880–81; see also In

re Counsel Fin. Servs., L.L.C., No. 13-12-00151-CV, 2013 WL 3895317, at *10 (Tex.

15 App.—Corpus Christi–Edinburg July 25, 2013, orig. proceeding) (mem. op.). The

application of the clean hands doctrine is committed to the court’s discretion. In re Jim

Walter Homes, Inc., 207 S.W.3d at 899–900; Thomas, 882 S.W.2d at 880–81.

Sherie and Barbara assert that Nancy has unclean hands because she, inter alia,

filed a false affidavit of indigency, she lied multiple times about the incident pertaining to

domestic violence, and she is attempting to take S.D.E. and material possessions away

from Sherie. Sherie and Barbara support these allegations against Nancy with a March

2, 2020 affidavit prepared by Sherie and other assorted documentation of dubious

relevance, none of which was presented to the trial court. 3

As an initial matter, the issues pertaining to malfeasance between Sherie and

Nancy are hotly disputed in this lawsuit and the allegations made by Sherie and Barbara

are contradicted, in part, by Nancy’s testimony. Moreover, these issues are not pertinent

to our analysis regarding standing. See TEX. FAM. CODE ANN. § 102.003(a)(9); In re H.S.,

550 S.W.3d at 160. However, even if the record fully supported Sherie and Barbara’s

allegations, which it does not, they cite no authority, and we have found none, for their

contention that such facts warrant denial of the petition for writ of mandamus in this case.

See In re Empire Pipeline Corp., 323 S.W.3d 308, 315 (Tex. App.—Dallas 2010, orig.

proceeding); see also In re Jim Walter Homes, 207 S.W.3d at 899 (stating that the

unclean hands doctrine should not be applied when the complaining party has not been

seriously harmed and the wrong complained-of can be corrected without applying the

3 With limited exceptions, an appellate court reviews the actions of the trial court based on the record before the court at the time it makes its ruling. See Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 556 (Tex. 1990) (orig. proceeding); Sabine OffShore Serv., Inc. v. City of Port Arthur, 595 S.W.2d 840, 841 (Tex. 1979) (orig. proceeding); Hudson v. Aceves, 516 S.W.3d 529, 539–40 (Tex. App.—Corpus Christi– Edinburg 2016, no pet.) (combined app. & orig. proceeding); In re Taylor, 113 S.W.3d 385, 392 (Tex. App.— Houston [1st Dist.] 2003, orig. proceeding). For the purpose of this proceeding only, we assume such materials may be considered in a clean hands analysis.

16 doctrine); In re Shaw, No. 05–07–01040–CV, 2007 WL 2447275, at *2 n.3 (Tex. App.—

Dallas Aug. 30, 2007, orig. proceeding) (mem. op.) (same). We are not persuaded by

Sherie and Barbara’s argument as to “unclean hands.”

C. “Third Party Custody”

Next, Sherie and Barbara assert that Nancy lacks a “biological or legal” relationship

with S.D.E. and was thus required to demonstrate either that Sherie relinquished care,

control, and possession of S.D.E. to Nancy or that appointment of Sherie as conservator

would significantly impair S.D.E.’s physical health or emotional development. See TEX.

FAM. CODE ANN. §§ 153.131, 153.373. Neither of these issues, however, are pertinent to

a standing analysis under § 102.003(a)(9). See id. § 102.003; In re H.S., 550 S.W.3d at

156. Sherie and Barbara’s arguments instead concern the merits of Nancy’s claims

regarding possession and custody and are not before us in this proceeding, where we

are merely determining whether Nancy has the right simply to bring suit. See In re H.S.,

550 S.W.3d at 156; In re Smith, 260 S.W.3d at 573. Accordingly, we reject this argument.

D. Credibility

In their sur-reply, Sherie and Barbara assert that the trial court was free to

disregard Nancy’s testimony. They assert that the trial court can choose to believe a

witness or not, and that the trial court was the sole judge of her credibility. However,

although a trial court is generally free to disbelieve testimony, in the absence of competent

evidence to the contrary, it is not authorized to find that the opposite of the testimony is

true. In re F.E.N., 542 S.W.3d 752, 764–65 (Tex. App.—Houston [14th Dist.] 2018),

review denied sub nom. Interest of F.E.N., 579 S.W.3d 74 (Tex. 2019); Schwartz v.

17 Pinnacle Comms., 944 S.W.2d 427, 434 n.5 (Tex. App.—Houston [14th Dist.] 1997, no

writ). As explained by the Fourteenth Court of Appeals:

As a general rule, the testimony of any witness does no more than raise a fact issue to be determined by the fact finder. Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex.1990). Nevertheless, while the fact finder is charged with the duty of deciding issues raised by conflicting evidence, when the evidence is not conflicting, the fact finder may not disregard uncontradicted testimony in order to decide an issue in accordance with its own wishes. Tex. & N.O.R. Co. v. Burden, 146 Tex. 109, 203 S.W.2d 522, 530 (1947); Berry v. Griffin, 531 S.W.2d 394, 396 (Tex. Civ. App.—Houston [14th Dist.] 1975, writ ref’d. n.r.e.). This exception applies even when the testimony comes from an interested witness if certain circumstances exist to ensure its reliability. If the interested witness’ testimony is clear, direct, and positive, as well as free from contradiction, inaccuracies, and suspicious circumstances, it is taken as true, as a matter of law. Ragsdale, 801 S.W.2d at 882; McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986); Cochran v. Wool Growers Cent. Storage, 140 Tex. 184, 166 S.W.2d 904, 908 (1942). This exception applies with special force when the interested witness’ testimony was capable of being readily controverted if untrue, yet was left uncontroverted. Lofton v. Texas Brine Corp., 777 S.W.2d 384, 386 (Tex.1989). Thus, when the opposing party has the means and opportunity of disproving the testimony or testing the credibility of the witness, but fails to avail himself of either opportunity, his argument on appeal loses its primary thrust. Collora v. Navarro, 574 S.W.2d 65, 69–70 (Tex. 1978).

Schwartz, 944 S.W.2d at 434 (internal footnotes omitted); see Hartis v. Century Furniture

Indus., Inc., 230 S.W.3d 723, 736 (Tex. App.—Houston [14th Dist.] 2007, no pet.). Here,

Nancy was the only witness who provided testimony relevant to standing. Although

counsel for Sherie and Barbara aggressively cross-examined Nancy, her testimony was

clear, direct, and positive. Her testimony could have been readily controverted by

testimony from other witnesses but was not. Under these circumstances, the trial court

was not authorized to disregard Nancy’s testimony. See Schwartz, 944 S.W.2d at 434.

Accordingly, we reject Sherie and Barbara’s argument to the contrary.

18 E. Summary

Based on the pleadings and evidence, Nancy has standing to seek

conservatorship of S.D.E. Thus, we reject Sherie and Barbara’s arguments against

granting mandamus relief in favor of Nancy.

VI. CONCLUSION

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

the response, the reply, and the sur-reply, is of the opinion that Nancy has met her burden

to obtain mandamus relief. Contrary to the trial court’s ruling, Nancy possesses standing

to bring suit. Accordingly, we conditionally grant mandamus relief and direct the trial court

to withdraw its rulings otherwise and proceed in accordance with this memorandum

opinion. Our writ will issue only if the trial court fails to comply.

LETICIA HINOJOSA Justice

Delivered and filed the 7th day of April, 2020.