592 S.W.3d 170
Tex. App.2019Background
- Relator Viridiana Martinez filed a SAPCR and an application for protective order in El Paso County on July 2, 2019, alleging she and the child resided in El Paso.
- Father Jose Guadalupe Martinez filed a competing SAPCR in Shelby County on July 12, 2019; a writ of attachment for the child was signed in Shelby that same day.
- El Paso court held a protective-order hearing July 23, found family violence, granted a protective order giving Viridiana exclusive possession of the child (visitation by agreement), and ordered Jose to appear.
- Shelby County judge held temporary-orders hearing July 26, found a clear danger Viridiana would flee (including to Mexico), prohibited removal of the child from Shelby County, and ordered the child delivered to Jose.
- Viridiana moved in Shelby County to transfer venue to El Paso (mandatory transfer under Tex. Fam. Code §103.001) and to abate based on dominant jurisdiction; the Shelby judge denied both motions.
- Viridiana sought mandamus relief in the Twelfth Court of Appeals; the appellate court denied the writ, concluding Shelby did not abuse its discretion.
Issues
| Issue | Plaintiff's Argument (Martinez) | Defendant's Argument (Martinez’s Opponent / Respondent) | Held |
|---|---|---|---|
| Whether mandatory transfer under Tex. Fam. Code §103.001 to El Paso was required (child’s county of residence) | Martinez: She had actual care, control, and possession in El Paso when she filed and thus El Paso is the child’s residence → mandatory transfer | Jose: Child resided in Shelby; Martinez had only recently moved to El Paso, insufficient to establish residency | Held: No transfer. Record lacked evidence of the permanency elements of residency; short presence did not establish El Paso residence |
| Whether Jose waived venue in Shelby by appearing at El Paso protective-order hearing | Martinez: Jose’s appearance in El Paso and participation showed submission to El Paso venue | Jose: Appearance at a protective-order hearing did not amount to waiver of Shelby venue | Held: No waiver. Appearing at the El Paso hearing did not constitute express or implied waiver of venue in Shelby |
| Whether El Paso court acquired dominant (first-filed) jurisdiction so Shelby should abate | Martinez: El Paso filed first and therefore acquired dominant jurisdiction | Jose/Respondent: El Paso lacked proper venue because child did not reside there, so no dominant jurisdiction | Held: No dominant jurisdiction. Because venue in El Paso was not proper, El Paso did not acquire dominant jurisdiction; abatement not required |
Key Cases Cited
- In re Sw. Bell Tel. Co., L.P., 235 S.W.3d 619 (mandamus is an extraordinary remedy; prerequisites)
- In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379 (mandamus requires no adequate appellate remedy and a clear abuse of discretion)
- Walker v. Packer, 827 S.W.2d 833 (standard of review for legal and factual determinations in mandamus)
- In re Calderon, 96 S.W.3d 711 (mandamus may compel mandatory transfer in SAPCRs)
- In re Narvaiz, 193 S.W.3d 695 (§103.001 does not set a specific prior-time residency requirement)
- McManus v. Wilborn, 932 S.W.2d 662 (short residence before filing can support venue under Chapter 103 in some circumstances)
- Snyder v. Pitts, 241 S.W.2d 136 (right of possession—must be more than mere visitor for place of abode to be residence)
- Gonzalez v. Reliant Energy, Inc., 159 S.W.3d 615 (first-filed court acquires dominant jurisdiction if venue is proper)