in Re Zelda Kay Thorpe, Relator

Opinion

NO. 07-10-00341-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

OCTOBER 19, 2010

IN RE ZELDA KAY THORPE, RELATOR

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

ORDER ON REHEARING

            The Court denied the petition for writ of mandamus filed by relator Zelda Kay Thorpe.  Now pending before us is relator’s motion for rehearing.  We will overrule the motion.

            Relator’s petition asked that the Court direct the Honorable Don Emerson, Judge of the 320th District Court of Potter County, to sign an order transferring the underlying suit affecting the parent-child relationship to Dallas County pursuant to sections 155.201(b) and 155.204(c) of the Family Code. 

            A statement in relator’s motion for rehearing suggests to us that relator has misread our opinion denying her writ petition. In her motion for rehearing, relator describes our opinion as holding that she failed to show an abuse of discretion by the trial court because she “had not demonstrated why the [court] had not signed a transfer order.” (italics relator’s).  Our opinion does not say that.

            Our opinion assumed, without holding, that the failure of real party in interest, Santos Fuentes, Jr., to file timely a controverting affidavit to relator’s motion to transfer made transfer of the SAPCR to Dallas County mandatory under § 155.204(c).  But what is missing from relator’s mandamus record is proof of the second and third elements of required mandamus proof, that Judge Emerson was asked to sign the transfer order, and failed or refused to do so.[1]  In re Thorpe, No. 07-10-0341-CV, 2010 Tex. App. Lexis 7681, at *4-*5 (Tex.App.--Amarillo September 17, 2010, orig. proceeding) (mem. op.).

            Mandamus relief is personal to the respondent. In re Roseland Oil & Gas, Inc., 68 S.W.3d 784, 786 (Tex.App.--Eastland 2001, orig. proceeding) (“[m]andamus is personal to the judge”).  This Court routinely enforces the requirement that petitioners for mandamus relief demonstrate that the respondent personally was aware of the requested action.  See, e.g., In re Chavez, 62 S.W.3d 225, 228 (Tex.App.--Amarillo 2001, orig. proceeding) (“merely stating that something was ‘properly filed’ is insufficient basis from which to reasonably infer that the trial court had notice of that something and the need to act on it”); In re Winters, No. 07-07-0455-CV, 2007 Tex. App. Lexis 8992, at *1-*2 (Tex.App.--Amarillo 2007, orig. proceeding) (noting it is incumbent on a relator to illustrate that the trial court “received and was aware of his motion”; absent such information mandamus court will not “simply assume that the district court knew of its duty to act and neglected to perform it”); In re Taylor, No. 07-05-0028-CV, 2005 Tex. App. Lexis 863, at *3 (Tex.App.--Amarillo Feb. 1, 2005, orig. proceeding) (mem. op.) (record failed to demonstrate whether relator “actually filed the motion with the court clerk, the court administrator, the judge himself, or someone else.  Lacking that information, we cannot simply assume that the district court knew of its duty to act and neglected to perform it”); In re Scott, No. 07-05-0022-CV, 2005 Tex. App. Lexis 749, at *3 (Tex.App.--Amarillo 2005, orig. proceeding) (mem. op.) (“[s]howing that a motion was filed with the court clerk does not constitute proof that the motion was brought to the trial court’s attention or presented to the trial court with a request for a ruling”).

            The cases relator cites in her motion for rehearing further illustrate our point.  None of the cases suggest mandamus is appropriate without proof the respondent trial court judge personally was asked, but failed or refused, to sign a transfer order when transfer was mandatory.  In In re Daly, the judge set a hearing rather than sign the transfer order. 148 S.W.3d 578, 579-80 (Tex.App.--El Paso 2004, orig. proceeding) (relator’s attorney sent the judge a proposed order transferring the case but instead of signing the order she set a hearing believing a review hearing provided by the relevant divorce decree first had to be conducted).  Clearly, the judge was personally made aware of the transfer request.  The opinion in In re Kramer makes clear that the two judges were aware of the requested transfer.  9 S.W.3d 449, 450 (Tex.App.--San Antonio 1999, orig. proceeding) (relator’s counsel wrote the court requesting it sign an enclosed transfer order but the assigned judge refused on the ground real party in interest filed a general denial and a hearing was necessary, and another judge issued a capias for the arrest of relator when he did not appear at the hearing). 

Similarly, in this Court’s opinion in Sokolosky v. McFall, we noted that “Judge McFall filed the request, and an accompanying order, but took no action on it.”  750 S.W.2d 35, 37 (Tex.App.--Amarillo 1988, orig. proceeding).  The Beaumont court’s opinion in In re Etemadi does not in the same manner expressly address the trial judge’s personal knowledge of the requested mandatory transfer, but nothing in the opinion suggests that factor was absent.  2008 Tex. App. Lexis 6750 (Tex.App.--Beaumont 2008, orig. proceeding) (mem. op.). 

Relator notes in her motion for rehearing that § 155.204(c) mandates that a SAPCR be transferred not later than the twenty-first day after expiration of the time within which a controverting affidavit may be filed, without a hearing in the transferring court.  She further notes the absence from the statute of any requirement for notice or demand upon the court to order the transfer.

Relator is assuming the ministerial nature of the transfer satisfies the requirements for issuance of mandamus.  A trial court may err by failing to follow the mandatory transfer procedure.  But before a higher court may intervene in proceedings to direct the trial court to take a ministerial action, it must be proven that the trial court was made aware of the need to take the action.  In re Winters, 2007 Tex. App. Lexis 8992, at *1-*2.  Relator’s apparent belief that we denied her mandamus relief because she did not show why Judge Emerson did not sign the transfer order overstates the requirements for mandamus relief with respect to ministerial duties.  Relator was not required to show why Judge Emerson did not transfer the case, but she was required to show that he knew she had asked him to transfer it, and that after a reasonable time, he failed or refused to act.  Id. at *2 (burden on relator to illustrate trial court refused to act).

Relator’s motion for rehearing is overruled.

                                                                        Per Curiam      

---

[1] Our opinion discussed why we do not view relator’s mandamus evidence as satisfying the requirements for mandamus relief, and we will not repeat that discussion here.