COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
§ No. 08-23-00053-CV IN RE: § AN ORIGINAL PROCEEDING VICTORIA GONZALEZ § IN MANDAMUS
§
MEMORANDUM OPINION
Relator, Victoria Gonzalez, seeks a writ of mandamus compelling the Honorable J.A.
Bobo, presiding judge of the 109th Judicial District Court of Andrews County, Texas, to grant her
motion to transfer venue of a modification petition filed in a suit affecting the parent-child
relationship, and enter an order transferring venue of the cause to Lubbock County, Texas. 1 On
February 7, 2023, we issued an order granting Relator Gonzalez’s motion for emergency stay
pending resolution of this mandamus. For the reasons stated below, we conditionally grant
mandamus relief.
1 The Honorable J.A. Bobo presided over this cause by assignment issued by the Honorable Dean Rucker, the presiding judge for the Seventh Administrative Judicial Region. I. BACKGROUND
On February 27, 2020, the 109th Judicial District Court of Andrews County entered an
order naming Gonzalez and Real Party in Interest Eleazar Luna, as joint managing conservators of
their child, L.L.L., who was born in November 2012. 2 Gonzalez is identified as Victoria Dawn
Blackburn in that order. As between the joint managing conservators, Gonzalez is designated as
the conservator who may determine the child’s primary residence without regard to geographic
location.
On August 30, 2022, Luna retuned to the Andrews County district court filing a petition to
modify the parent-child relationship, seeking to modify the order rendered on February 27, 2020.
Luna’s petition names Victoria Dawn Blackburn as respondent. Luna alleges the Andrews County
court has continuing, exclusive jurisdiction of the suit, and further represents that the child subject
of the suit, L.L.L., resides in “Lubbock/Andrews.” The petition includes a request for temporary
orders to include an appointment of Luna as the temporary conservator who has the right to
designate the primary residence of the child. As grounds for modification of conservatorship,
possession and access, Luna alleges Gonzalez has engaged in a history or pattern of child abuse
and child neglect. A supporting affidavit signed by Luna is attached to the modification petition.
On October 3, 2022, and prior to being served with notice of Luna’s modification suit,
Gonzalez filed several pleadings. First, at 3:03 p.m., she filed a special exceptions and motion to
strike, identifying that she was formerly known as Victoria Blackburn. Second, she filed three
additional pleadings, all time-stamped as filed at 3:10 p.m.: (1) an original answer; (2) a motion to
transfer the modification suit asserting as grounds that, even though the Andrews County court
2 To protect the privacy of the child, we refer to her by her initials. See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(d).
2 had acquired and retains continuing, exclusive jurisdiction of the suit as a result of prior
proceedings, that transfer is proper to Lubbock County, Texas, because the principal residence of
the child is in Lubbock County, and the child has been in that county during the six-month period
preceding the commencement of the suit; and (3) a motion for enforcement of possession or access,
which alleges that, on or about September 18, 2022, and continuing to the day of the filing of the
motion, Luna has failed to surrender the child to Gonzalez and illegally withheld her since that
date.
On October 11, 2022, at 5:20 p.m., Gonzalez was personally served with citation and notice
of Luna’s modification suit.
On October 31, 2022, Luna’s counsel filed a controverting affidavit contesting Gonzalez’s
motion to transfer pursuant to Rule 86 of the Texas Rules of Civil Procedure. Luna asserted that
Gonzalez waived her right to transfer venue by failing to file the transfer motion concurrently or
prior to her first responsive pleading to the modification suit. The affidavit did not otherwise
contest Gonzalez’s assertion that L.L.L. resided in Lubbock County for the six months prior to the
filing of his petition to modify the parent-child relationship.
On December 2, 2022, the judge of the 109th District Court of Andrews County set the
matter for a hearing on January 10, 2023, on Gonzalez’s motion to transfer. On December 19,
2022, the district court held a temporary-orders hearing on the cause. At the start of the hearing,
the court noted on the record that notice of the hearing was sent out on December 7, 2022, to both
counsel for Gonzalez and to counsel for Luna. 3 Luna’s counsel confirmed he received his notice
3 Although referred to in the hearing transcript, the appendix of Gonzalez’s petition does not contain any indication that she or her attorneys received notice of the December 19, 2022, temporary orders hearing. We note for the purposes of this opinion that it is evident from our review of Gonzalez’s petition that the appendix does not contain a complete record of all the documents received or generated by the trial court in this matter. However, Gonzalez seeks relief in a single issue, alleging only that Respondent’s refusal to sign a transfer of the modification petition violated a
3 but he further informed the court that a staff member of his office called opposing counsel’s office
in Lubbock, and they were informed opposing counsel was unaware of a hearing set for that day.
The district court next made a ruling from the bench on the motion to transfer indicating the motion
to transfer was denied. At the close of the hearing, the court granted temporary orders.
On December 21, 2022, the district court denied Gonzalez’s motion to transfer by written
order, stating it was not filed concurrently with the first responsive pleading, nor otherwise filed
in a timely manner. The trial court’s order provides as follows:
The Court finds that the Respondent’s Motion to Transfer Venue was not contained in a separate instrument filed concurrently with or prior to the filing of the movant’s first responsive pleading, and the motion was not combined with other objections and defenses and included in the movant’s first responsive pleading. Also, the Motion to Transfer was not filed in a timely manner.
Default temporary orders were also entered on the same day, which declared Luna the sole
managing conservator of L.L.L. with the right to designate the child’s primary residency. 4
On February 6, 2023, Gonzalez filed this petition for writ of mandamus and a motion for
emergency relief. In her motion, Gonzalez requested that this Court stay proceedings in the trial
court pending the disposition of her petition for mandamus. Specifically, Gonzalez asked that
proceedings be stayed because Luna has filed a motion for enforcement of possession or access
against Gonzalez which the trial court has set for hearing on February 27, 2023. Gonzalez and
Luna have each filed contempt proceedings and motions for enforcement of possession or access,
ministerial duty imposed by law, and her appendix contains the complained of order and relevant documents necessary for a decision on her issue. See Tex. R. App. P. 52.3 (k)(2) (“The appendix should not contain any evidence or other item that is not necessary for a decision.”). 4 Temporary orders, entered while a motion to modify in a suit affecting the parent-child relationship is pending, are interlocutory orders and there is no statutory provision for an appeal of such orders. See Dancy v.
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COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
§ No. 08-23-00053-CV IN RE: § AN ORIGINAL PROCEEDING VICTORIA GONZALEZ § IN MANDAMUS
§
MEMORANDUM OPINION
Relator, Victoria Gonzalez, seeks a writ of mandamus compelling the Honorable J.A.
Bobo, presiding judge of the 109th Judicial District Court of Andrews County, Texas, to grant her
motion to transfer venue of a modification petition filed in a suit affecting the parent-child
relationship, and enter an order transferring venue of the cause to Lubbock County, Texas. 1 On
February 7, 2023, we issued an order granting Relator Gonzalez’s motion for emergency stay
pending resolution of this mandamus. For the reasons stated below, we conditionally grant
mandamus relief.
1 The Honorable J.A. Bobo presided over this cause by assignment issued by the Honorable Dean Rucker, the presiding judge for the Seventh Administrative Judicial Region. I. BACKGROUND
On February 27, 2020, the 109th Judicial District Court of Andrews County entered an
order naming Gonzalez and Real Party in Interest Eleazar Luna, as joint managing conservators of
their child, L.L.L., who was born in November 2012. 2 Gonzalez is identified as Victoria Dawn
Blackburn in that order. As between the joint managing conservators, Gonzalez is designated as
the conservator who may determine the child’s primary residence without regard to geographic
location.
On August 30, 2022, Luna retuned to the Andrews County district court filing a petition to
modify the parent-child relationship, seeking to modify the order rendered on February 27, 2020.
Luna’s petition names Victoria Dawn Blackburn as respondent. Luna alleges the Andrews County
court has continuing, exclusive jurisdiction of the suit, and further represents that the child subject
of the suit, L.L.L., resides in “Lubbock/Andrews.” The petition includes a request for temporary
orders to include an appointment of Luna as the temporary conservator who has the right to
designate the primary residence of the child. As grounds for modification of conservatorship,
possession and access, Luna alleges Gonzalez has engaged in a history or pattern of child abuse
and child neglect. A supporting affidavit signed by Luna is attached to the modification petition.
On October 3, 2022, and prior to being served with notice of Luna’s modification suit,
Gonzalez filed several pleadings. First, at 3:03 p.m., she filed a special exceptions and motion to
strike, identifying that she was formerly known as Victoria Blackburn. Second, she filed three
additional pleadings, all time-stamped as filed at 3:10 p.m.: (1) an original answer; (2) a motion to
transfer the modification suit asserting as grounds that, even though the Andrews County court
2 To protect the privacy of the child, we refer to her by her initials. See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(d).
2 had acquired and retains continuing, exclusive jurisdiction of the suit as a result of prior
proceedings, that transfer is proper to Lubbock County, Texas, because the principal residence of
the child is in Lubbock County, and the child has been in that county during the six-month period
preceding the commencement of the suit; and (3) a motion for enforcement of possession or access,
which alleges that, on or about September 18, 2022, and continuing to the day of the filing of the
motion, Luna has failed to surrender the child to Gonzalez and illegally withheld her since that
date.
On October 11, 2022, at 5:20 p.m., Gonzalez was personally served with citation and notice
of Luna’s modification suit.
On October 31, 2022, Luna’s counsel filed a controverting affidavit contesting Gonzalez’s
motion to transfer pursuant to Rule 86 of the Texas Rules of Civil Procedure. Luna asserted that
Gonzalez waived her right to transfer venue by failing to file the transfer motion concurrently or
prior to her first responsive pleading to the modification suit. The affidavit did not otherwise
contest Gonzalez’s assertion that L.L.L. resided in Lubbock County for the six months prior to the
filing of his petition to modify the parent-child relationship.
On December 2, 2022, the judge of the 109th District Court of Andrews County set the
matter for a hearing on January 10, 2023, on Gonzalez’s motion to transfer. On December 19,
2022, the district court held a temporary-orders hearing on the cause. At the start of the hearing,
the court noted on the record that notice of the hearing was sent out on December 7, 2022, to both
counsel for Gonzalez and to counsel for Luna. 3 Luna’s counsel confirmed he received his notice
3 Although referred to in the hearing transcript, the appendix of Gonzalez’s petition does not contain any indication that she or her attorneys received notice of the December 19, 2022, temporary orders hearing. We note for the purposes of this opinion that it is evident from our review of Gonzalez’s petition that the appendix does not contain a complete record of all the documents received or generated by the trial court in this matter. However, Gonzalez seeks relief in a single issue, alleging only that Respondent’s refusal to sign a transfer of the modification petition violated a
3 but he further informed the court that a staff member of his office called opposing counsel’s office
in Lubbock, and they were informed opposing counsel was unaware of a hearing set for that day.
The district court next made a ruling from the bench on the motion to transfer indicating the motion
to transfer was denied. At the close of the hearing, the court granted temporary orders.
On December 21, 2022, the district court denied Gonzalez’s motion to transfer by written
order, stating it was not filed concurrently with the first responsive pleading, nor otherwise filed
in a timely manner. The trial court’s order provides as follows:
The Court finds that the Respondent’s Motion to Transfer Venue was not contained in a separate instrument filed concurrently with or prior to the filing of the movant’s first responsive pleading, and the motion was not combined with other objections and defenses and included in the movant’s first responsive pleading. Also, the Motion to Transfer was not filed in a timely manner.
Default temporary orders were also entered on the same day, which declared Luna the sole
managing conservator of L.L.L. with the right to designate the child’s primary residency. 4
On February 6, 2023, Gonzalez filed this petition for writ of mandamus and a motion for
emergency relief. In her motion, Gonzalez requested that this Court stay proceedings in the trial
court pending the disposition of her petition for mandamus. Specifically, Gonzalez asked that
proceedings be stayed because Luna has filed a motion for enforcement of possession or access
against Gonzalez which the trial court has set for hearing on February 27, 2023. Gonzalez and
Luna have each filed contempt proceedings and motions for enforcement of possession or access,
ministerial duty imposed by law, and her appendix contains the complained of order and relevant documents necessary for a decision on her issue. See Tex. R. App. P. 52.3 (k)(2) (“The appendix should not contain any evidence or other item that is not necessary for a decision.”). 4 Temporary orders, entered while a motion to modify in a suit affecting the parent-child relationship is pending, are interlocutory orders and there is no statutory provision for an appeal of such orders. See Dancy v. Daggett, 815 S.W.2d 548, 548 (Tex. 1991) (per curiam). However, Gonzalez does not seek mandamus relief concerning the temporary orders rendered December 21, 2022.
4 and both parties’ motions accompanied Gonzalez’s motion for emergency stay. We entered an
order on February 7, 2023, staying the proceedings below.
II. MANDAMUS STANDARD
Mandamus relief is generally appropriate only to compel the performance of a ministerial
duty or when a relator has no adequate appellate remedy for the trial court’s clear abuse of
discretion. See In re Auburn Creek Ltd. P’Ship, 655 S.W.3d 837, 840 (Tex. 2022)
(orig. proceeding) (per curiam) (abuse of discretion without adequate appellate remedy); In re
Phillips, 496 S.W.3d 769, 774 (Tex. 2016) (orig. proceeding) (ministerial duty); In re UpCurve
Energy Partners, LLC, 632 S.W.3d 254, 256 (Tex. App.—El Paso 2021, orig. proceeding).
A. Mandatory venue transfer in a modification suit
An erroneous denial of a mandatory venue transfer is subject to mandamus relief without
a showing of an inadequate remedy by appeal. See In re Tex. Ass’n of Sch. Bds., Inc., 169 S.W.3d
653, 656 (Tex. 2005); TEX. FAM. CODE ANN. § 155.204(h) (transfer or denial not subject to
interlocutory appeal). The duty to transfer a suit to modify or a motion to enforce an order is a
mandatory, ministerial duty under Family Code § 155.201(b) when statutory conditions are met.
See 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).
B. Analysis
In her sole issue, Gonzalez seeks mandamus relief contending Respondent’s refusal to sign
an order transferring the modification petition from the court of continuing jurisdiction in Andrews
County to a court in Lubbock County violated a ministerial duty imposed by law. Gonzalez moved
to transfer the case pursuant to § 155.201(b) of the Family Code, which provides that, if a suit to
modify or a motion to enforce an order is filed in the court having continuing, exclusive jurisdiction
5 of a suit, “on the timely motion of a party the court shall, within the time required by Section
155.204, transfer the proceeding to another county in this state if the child has resided in the other
county for six months or longer.” TEX. FAM. CODE ANN. § 155.201(b) (emphasis added). Whether
a motion to transfer is timely depends on whether the movant is the petitioner or another party.
Id. § 155.204(b) (providing different standards for a “petitioner or movant” and “another party”).
Once a timely motion to transfer is filed, the burden shifts to the contesting party to file a
controverting affidavit denying the grounds for the transfer. See In re Daly, 148 S.W.3d 578, 580
(Tex. App.—El Paso 2004, no pet.); TEX. FAM. CODE ANN. § 155.204(d). A controverting affidavit
denying that grounds for the transfer exist must be filed “on or before the first Monday after the
20th day after the date of notice of a motion to transfer is served.” TEX. FAM. CODE ANN.
§ 155.204(d). In the event a timely motion to transfer has been filed and no controverting affidavit
is filed within the allotted period, the proceeding must be transferred to the proper court without a
hearing. Id. § 155.204(c).
Here, Gonzalez appeared as a respondent to Luna’s petition to modify, and her motion to
transfer was timely if “made on or before the first Monday after the 20th day after the date of
service of citation or notice of the suit or before commencement of the hearing, whichever is
sooner.” TEX. FAM. CODE § 155.204(b). Luna filed his modification petition on August 30, 2022.
Gonzalez was served with notice of the modification petition on October 11, 2022. But Gonzalez
had already filed her motion to transfer on October 3, 2022, and served Luna’s attorney on that
date, before she was served with his modification petition and well within the twenty-day statutory
period. Thus, Gonzalez’s motion was timely filed, and Luna had until October 24, 2022, “the first
Monday after the 20th day after the date of notice of a motion to transfer is served,” to contest the
motion by filing a controverting affidavit that denies that grounds for the transfer exist.
6 TEX. FAM. CODE ANN. § 155.204(d). Luna did not file such controverting affidavit denying
Gonzalez’s grounds for seeking transfer.
Of note, Luna’s attorney filed and signed an affidavit on October 31, 2022, entitled
“affidavit controverting motion to transfer venue.” The affiant avers that Gonzalez waived any
objection to venue by failing to file her motion to transfer concurrently with, or prior to, her first
responsive pleading per Rule 86 of the Texas Rules of Civil Procedure. Yet, in this affidavit there
is no averment by Luna’s counsel that L.L.L. did not reside in Lubbock County for at least six
months prior to Luna filing his modification petition. Indeed, Luna’s original affidavit attached to
his modification petition acknowledges that L.L.L. had resided with Gonzalez in Lubbock County
since July 2020.
The Supreme Court of Texas and our sister courts of appeals have consistently held that
the Family Code’s transfer procedures are the exclusive mechanisms for challenging venue. See
Leonard v. Paxson, 654 S.W.2d 440, 441 (Tex. 1983); see, e.g., In re Leder, 263 S.W.3d 283,
286– 87 (Tex. App.—Houston [1st Dist.] 2007, orig. proceeding [mand. denied]) (collecting
cases). The Family Code transfer provisions supersede the rules of civil procedure and venue
statutes. See In re Leder, 263 S.W.3d at 286–87. Accordingly, we conclude that Gonzalez timely
filed her motion to transfer, and she did not otherwise waive venue based on Rule 86 of the Texas
Rules of Civil Procedure.
Based on our record, Luna had until October 24, 2022, to file a controverting affidavit
denying that grounds for the transfer existed. TEX. FAM. CODE ANN. § 155.204(d). Luna did not
timely file such affidavit. Therefore, the district court of Andrews County was statutorily required
to transfer the case to Lubbock County, without a hearing, on or before November 14, 2022. TEX.
FAM. CODE ANN. § 155.204(c) (“if a timely motion to transfer has been filed and no controverting
7 affidavit is filed within the period allowed for its filing, the proceeding shall, not later than the 21st
day after the final date of the period allowed for the filing of a controverting affidavit, be
transferred without a hearing to the proper court.”). We conclude that transfer of this case to
Lubbock County is mandatory under § 155.201(b) of the Family Code, and the district court abused
its discretion when it failed to grant Gonzalez’s motion to transfer venue within the statutory
timeframe.
We sustain Gonzalez’s sole issue.
III. CONCLUSION
We conditionally grant Gonzalez’s petition for writ of mandamus. A writ will issue only
in the event the trial court fails to render an order granting Gonzalez’s motion to transfer venue.
The stay order dated February 7, 2023, is lifted.
GINA M. PALAFOX, Justice
February 24, 2023
Before Rodriguez, C.J., Palafox, and Soto, JJ.