In re James Madison NABORS and Julia Nabors, Relators.
No. 14-08-00380-CV.
Court of Appeals of Texas, Houston (14th Dist.).
Jan. 16, 2009.
Appellant also acknowledges that his arrest, though warrantless, was supported by probable cause. The trial court found that Detective Reynolds failed to procure a warrant because “[i]n his mind he believed that he had probable cause to arrest the defendant and that a warrant was not necessary.” The record also supports this finding, as Reynolds testified that he felt he could arrest appellant because of Ochoa‘s confession. This belief appears, from the record, to have been founded upon Reynolds‘s misunderstanding of the scope of
We consider the facts of this case to be analogous to the police conduct involved in Bell, in which the arresting officer had probable cause to arrest Bell, but failed to procure a warrant because the officer believed that a warrant exception applied. See Bell, 724 S.W.2d at 785-87. The Court of Criminal Appeals classified that police conduct as falling “somewhere in between a technical violation and flagrant conduct[.]” Id. at 790. The Court concluded that the police conduct did not decisively weigh against attenuation of the taint. See id.
Ultimately, based on its resolution of the Brown factors, the Bell Court declined to find attenuation. See id. at 790-91. Although we classify the official misconduct here as analogous to that involved in Bell, however, we do not reach the same ultimate attenuation conclusion after weighing the Brown factors. In Bell, the Court found no intervening circumstance that would militate in favor of admission of the confession. See id. at 789, 790. By contrast, we have held that appellant‘s confrontation with Ochoa‘s untainted confession served as a legitimate intervening event that was sufficient “to break the causal connection” between the illegal arrest and confession. See id.
Having weighed the pertinent Brown factors, then, we conclude on the record presented that the taint of appellant‘s unlawful arrest was attenuated.
CONCLUSION
Although appellant was unlawfully arrested without a warrant, we hold the State carried its burden to prove, under Brown v. Illinois and Bell v. State, that the taint of the illegal arrest was attenuated. Therefore, we affirm the trial court‘s ruling denying appellant‘s motion to suppress his recorded confession.
Sarah Stallberg, Houston, Trevor A. Woodruff, Austin, for Appellees.
Panel consists of Justices FROST, SEYMORE, and GUZMAN.
MAJORITY OPINION
CHARLES SEYMORE, Justice.
In this original proceeding, relators, James Madison Nabors and Julia Nabors, seek a writ of mandamus ordering the respondent, the Honorable Michael Schneider, to transfer the underlying case from Harris County to Fort Bend County. We conditionally grant the writ.
BACKGROUND
On May 16, 2006, the Texas Department of Family Protective Services (“TDFPS“) placed T.D.P. and D.E.P. with the Naborses, who became their foster parents. On August 22, 2007, the trial court signed a final order in a suit to terminate the parental rights of T.D.P. and D.E.P.‘s biological parents. TDFPS was named the sole managing conservator. On October 26, 2007, the children were removed from the Naborses’ home on allegations of abuse. TDFPS informed the Naborses that “[b]ased on the information gathered, it was determined that you had no role and the investigation was closed.” The children were not returned to the Naborses’ home.
On November 9, 2007, the Naborses filed, in Harris County, a petition for adoption and motion to modify the parent-child relationship with an accompanying motion to transfer venue to Fort Bend County.1 In their motion, the Naborses alleged that Fort Bend County has been the children‘s principal residence and “has been in that county during the six-month period preceding the commencement of this suit.”2 On December 19, 2007, TDFPS filed an answer. Prior to a hearing on February 4, 2008, TDFPS filed a response to the motion to transfer supported by an affidavit. The trial court denied the motion to transfer venue.3
In order to obtain mandamus relief, the relator must show that the trial court clearly abused its discretion, and the relator has no adequate remedy by appeal. In re Sw. Bell Tele. Co., L.P., 226 S.W.3d 400, 403 (Tex.2007) (orig.proceeding). A trial court has no discretion in determining what the law is or applying the law to facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). The transfer of a suit affecting the child-parent relationship to a county where the child has resided for more than six months is a mandatory ministerial duty. Proffer v. Yates, 734 S.W.2d 671, 673 (Tex.1987). Therefore, a writ of mandamus is available to compel the mandatory transfer of a suit affecting the parent-child relationship. Id. at 672.
MOTION TO TRANSFER VENUE
Because the 315th District Court of Harris County was the court of continuing jurisdiction based on the suit to terminate parental rights, the Naborses filed their motion to modify, petition for adoption, and motions to transfer in that court. See
(b) If a suit to modify or a motion to enforce an order is filed in the court having continuing, exclusive jurisdiction 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.
The Naborses contend the trial court had a ministerial duty to sever and transfer all proceedings pertaining to the children to Fort Bend County because the children had lived with them in Fort Bend County for the requisite length of time. TDFPS contends the Naborses did not present any evidence to support their motion to transfer venue to Fort Bend County, arguing that the Naborses failed to submit an affidavit that contained sufficient averments.
VENUE RULES
TDFPS contends the rules governing transfer of venue in a suit affecting parent-child relationship are a combination of the Texas Family Code, the Texas Civil Practice & Remedies Code, and the Texas Rules of Civil Procedure. Relying on the venue statute found in Chapter 15 of the
THE CHILDREN‘S RESIDENCE
At the hearing on the motion to transfer, relator, James Nabors, testified that TDFPS placed the children with him and his wife on May 16, 2006, and the children resided with them in Fort Bend County for seventeen months. The Naborses contend TDFPS failed to controvert their venue averments.
TDFPS contends its affidavit controverts the Naborses’ venue facts. We note that TDFPS did aver that the children were “not currently residing with the Naborses, and have not since October 26, 2007.” However, there is no dispute that the children resided in Fort Bend County for approximately seventeen months before TDFPS removed them from the Naborses’ household. TDFPS contends that it designated the Naborses’ home as the children‘s residence on a temporary basis only. The TDFPS bases a major portion of its venue argument on the assertion that the “principal residence” of the children has always been Harris County because
However, the Texarkana and the Amarillo Courts of Appeals have rejected similar arguments made by TDFPS. First, In re Kerst, 237 S.W.3d 441, 442 (Tex.App.—Texarkana 2007, orig. proceeding), presents a somewhat similar scenario in which TDFPS sought and obtained termination of the parental rights. TDFPS placed the children with the Kersts who lived in Bowie county. Id. After a disagreement arose between TDFPS and the Kersts, the children were removed from the Kersts’ home. Id. Subsequently, the Kersts filed a motion to modify the conservatorship and motion to transfer venue from Hopkins county (where the court had continuing jurisdiction) to Bowie County. Id. In their motion, the Kersts alleged that the children had lived in Bowie County for more than six months. Id. It was undisputed that the children had lived with the Kersts, in Bowie County, for approximately seventeen months prior to the date the Kersts filed their motion to transfer venue, which the trial court denied. Id.
The court of appeals rejected TDFPS‘s assertion that the Legislature never intended for the proceedings to be transferred to the county where the foster parents resided with the children. Id. at 443-44. TDFPS argued that, until the statute was amended, foster parents had no standing to assert these rights and, when the Legislature granted such standing, it was not contemplated that foster parents would be allowed to seek and obtain a transfer to the county where they resided with the children. Id. But, the court of appeals concluded that the statute requiring the mandatory transfer of a suit affecting the parent-child relationship to the county where the child has resided for six months or longer is straightforward and clear, and declined to accept TDFPS‘s invitation to surmise that the statute has some other meaning. Id. at 444.
The appellate court further rejected TDFPS‘s argument that the children had not “resided” in Bowie County, but were placed there merely for foster care, reasoning “[i]t cannot be argued that they were only temporarily absent from another, more permanent residence, since these children had no other home or residence.” Id. at 444-45. The court of appeals held that the children had resided in Bowie County for more than six months and directed the trial court to transfer the proceedings. Id. at 445.
Second, In re Gore presents the same scenario in which the original court of continuing jurisdiction in Potter County named TDFPS the managing conservator. No. 07-07-0290-CV, 2007 WL 2403366, at *1 (Tex.App.—Amarillo Aug. 23, 2007, orig. proceeding) (mem.op.). TDFPS placed the child in the foster care of the Gores in Swisher County. Id. After the child had lived with the Gores for more than six years, the Gores filed a petition seeking termination of the parent-child relationship between the child and her parents in the court in Potter County. Id. After the case had been transferred to Swisher County, TDFPS sought and received a discretionary transfer of the case back to Potter County. Id. Because it was undisputed that the child had resided in Swisher County more than six months, the court of appeals held that Swisher County was the only county of proper venue and the case should not have been transferred back to Potter County. Id. at *2.
Similar to Kerst and Gore, it is undisputed that the children had resided in Fort
CONVENIENCE OF THE PARTIES
The Naborses pleaded, alternatively, that the district court in Fort Bend County would be more convenient because all parties and witnesses reside in Fort Bend County.
CONSTRUCTION OF SECTION 155.201(B)
TDFPS focused its appellate argument on the contention that this court should deny the petition because relators failed to comply with applicable rules of procedure. In other words, TDFPS argues that the trial court could not consider anything other than the contentions in the Naborses’ motion to transfer venue supported by timely filed affidavits. We have addressed those arguments, however, the dissent opines that our disposition violates certain venue provisions in the family code because the children did not reside in Fort Bend County on the day or at the moment the Naborses filed their motion to transfer venue. See post at 199. We respectfully disagree.
The children resided with the Naborses for approximately seventeen months before TDFPS moved them to Harris County. They were placed in Harris County approximately two weeks before the Naborses filed their motion to transfer venue. Obviously, at the time of the hearing, the children had resided in the “other county for six months or longer.”
The majority chooses to follow the Legislature‘s clear instructions for determining the county of the children‘s residence prescribed as follows:
Determining County of Child‘s Residence
In computing the time during which the child has resided in a county, the court may not require that the period of residence be continuous and uninterrupted but shall look to the child‘s principal residence during the six-month period preceding the commencement of the suit.
Our interpretation and application of the above language properly focuses on determination of the children‘s “principal residence” during the six month period. We duly regard the Legislature‘s instructions not to focus on time and location of the children on a particular day. In determining the county of principal residence we focus on elements of permanency for the children which are critical to establishing residency for venue purposes. See Martinez
The dissent contends our interpretation of section 155.201(b) conflicts with In re T.L.J., 97 S.W.3d 257 (Tex.App.—Houston [14th Dist.] 2002, no pet.). We are referred to page 264 of that opinion with our dissenting colleagues‘s statement that this court construed section 155.201(b) to “require that the child be a resident of the other county at the time the suit to modify was filed.” See post at 205. First, T.L.J., pertained to the question of whether transfer of venue as to one child is required when not all children of a marriage live in the county to which transfer is sought. Our court concluded that Section 155.207(b) of the Family Code requires a court to transfer the proceedings affecting a child to the county where the child resides, even if it retains jurisdiction over another child of the marriage who does not live in the transferee county. The T.L.J. court did not interpret or apply section 155.201(b) to answer the specific question presented in this case. Moreover, the court relied on Cassidy v. Fuller, 568 S.W.2d 845 (Tex.1978) when it referred to section 155.201(b).10
Finally, our dissenting colleague‘s effort to construe sections 155.201(b) and 155.203 by relying on certain language in Blacklock v. Miller is likewise misplaced. 693 S.W.2d 651 (Tex.App.—Dallas 1985, orig. proceeding). In that case, the Dallas Court of Appeals cited and relied on Chem-Spray Aerosols, Inc. v. Edwards11 to support its conclusion that “[t]he critical time with regard to the existence of venue
CONCLUSION
We hold venue for these proceedings is mandatory in Fort Bend County. Once the Naborses established that the children continuously resided in Fort Bend County for more than six months preceding the filing of the motion to modify and petition for adoption, the trial court had a ministerial duty to transfer the underlying case to Fort Bend County under
The writ will issue only if the trial court fails to act in accordance with this opinion.
FROST, J., dissenting.
DISSENTING OPINION
KEM THOMPSON FROST, Justice.
The majority correctly determines that relators James Madison Nabors and Julia Nabors were not required to present an affidavit in support of their motion to transfer venue and that the Texas Department of Family Protective Services (“Department“) is not the “parent” of T.D.P. and D.E.P. (hereinafter the “Children“). But the majority incorrectly determines that the Naborses are entitled to a mandatory venue transfer upon a showing that the Children‘s principal residence was in Fort Bend County for more than six months at any time in the past. Instead, under the applicable statute as well as precedent from the Supreme Court of Texas and this court, to have been entitled to a mandatory venue transfer under
The Naborses filed both their suit to modify and their motion to transfer venue on November 9, 2007 (the “Filing Date“). In their motion, the Naborses correctly stated the legal standard for a mandatory venue transfer under
- Between May 16, 2006 and October 26, 2007, the principal residence of the Children was in Fort Bend County, Texas, with the Naborses.
- Between October 26, 2007, and February 4, 2008, the principal residence of the Children was in Harris County, Texas.
The Children‘s supervisor at Harris County Children‘s Protective Services testified as follows:
- The Department has been the sole managing conservator of the Children since August 8, 2007.
- The Department placed the Children with the Naborses as foster parents.
- On October 26, 2007, the Department removed the children from the Naborses’ home due to allegations of physical abuse and policy violations that were later validated.
- The Children were then placed in a home in Harris County.
- The Children have not resided with the Naborses since October 26, 2007.
- Since October 26, 2007, the Children have continuously resided in Harris County.
This testimony was not controverted. The evidence before the trial court showed that, from October 26, 2007 forward, including on the Filing Date, the Children‘s principal residence was in Harris County. Simply stated, the Naborses did not prove the factual predicate asserted in their motion to transfer venue.
THE NABORSES’ BURDEN OF PROOF
The Naborses are relators in this original mandamus proceeding. As such, they have the “heavy” burden of presenting a record and petition that show they are entitled to mandamus relief to correct a clear abuse of discretion by the trial court.2 The inquiry mandated by prece-
According to the majority, the only arguments that the Department asserts in its briefing as to why mandamus should be denied are its arguments as to why the procedures from Chapter 15 of the Texas Civil Practice and Remedies Code apply.5 The majority states that, even though the Department “limited its appellate argument” to these matters, the majority addresses the proper interpretation of section 155.201(b) because this issue is raised in this dissenting opinion.6 There is both a factual defect and a legal defect in this reasoning.
Factually, the Department‘s procedural argument is not the only argument the Department has asserted in this court. Though the Department stresses its procedural argument, it also asserts that Harris County should be considered the Children‘s county of residence because the Department should be treated as a parent of the Children. In addition, in its briefing, the Department notes that, in its response in the trial court, the Department pointed out the fact that the Children have been residing in Harris County since October 26, 2007, and have not been residing with the Naborses since that date.
Legally, the majority‘s reasoning reverses the burden of proof in a mandamus proceeding from the burden imposed by mandatory precedent. There are several possibilities when an appellate court asks a real party to file a response: (1) a real party may brief one or more arguments showing why the relators are not entitled to mandamus relief; (2) a real party may brief one or more arguments in opposition to mandamus relief, none of which have merit; or (3) a real party may exercise its right not to file a response at all. Regardless of which course the real party takes, the relator keeps the “heavy” burden of presenting a record and petition that show the relator is entitled to mandamus relief to correct a clear abuse of discretion by the trial court.7 The Naborses assert that the trial court clearly abused its discretion by not granting their motion to transfer venue to Fort Bend County under
THE LANGUAGE OF SECTION 155.201(B)
When a party files a modification suit and a motion for mandatory transfer, the party is entitled to a mandatory transfer “if the child has resided in the other county for six months or longer.”8 Therefore, for the Naborses to be entitled to a mandatory transfer to Fort Bend County, the Children must “have resided” in Fort Bend County for six months or longer as of the Filing Date. The verb forms “has resided” and “have resided” are in the present perfect tense. This tense either (1) represents an action as having been completed at some indefinite time in the past, or (2) indicates that an action continues to the present.9 If the first sense of the present perfect tense applies to section 155.201(b), then a child may have resided in various counties for at least six months at some indefinite time in past, prior to the filing of the modification suit. If the second sense of the present perfect tense applies, then the child would have had to reside in the other county for at least six months up to and including the date on which the modification suit was filed.10 To see which sense was intended, this court should look to other parts of the statute.
Under section 155.202(a), “[i]f the basis of a motion to transfer a proceeding under this subchapter is that the child resides in another county, the court may deny the motion if it is shown that the child has resided in that county for less than six months at the time the proceeding is commenced.”11 Section 155.201(b) provides the only basis for transferring a proceeding under this subchapter that is based on the residence of the child. Therefore, in section 155.202, the legislature describes a transfer under section 155.201(b) as being based on an allegation that “the child resides in another county.”12 Thus, section 155.202(a) is strong support that the legislature intended the second sense of the present perfect tense in section 155.201(b).
The language in section 155.201(b) “if the child has resided in the other county for six months or longer” shows that the legislature envisioned that there would be only one other county.13 This language is consistent with the legislature intending the second sense of the present perfect tense in section 155.201(b), and it is inconsistent with the legislature intending the first sense of the present perfect tense in section 155.201(b).
Under section 155.203, courts determining a child‘s residence must examine the child‘s principal residence throughout the six-month period preceding the commencement of suit.14 Section 155.203 shows that the legislature intended the second sense of the present perfect tense in section
Based on the language of Texas Family Code section 155.201(b) and related statutory provisions, for the trial court to have been required to transfer venue to Fort Bend County, the Children‘s principal residence must have been in Fort Bend County throughout the six-month period ending on the Filing Date.17 The majority states that this analysis adds to the statute words not contained therein and that, if the legislature wanted to require the child to be residing in the transferee county when suit was filed, it could have said so.18 However, no words have been added to the statute in this dissenting opinion; rather, the objective of this statutory analysis is to seek the meaning of the words used. Courts should not ignore what is, based on what might have been.19 That is, the fact that the legislature could have used more precise or clearer words does not change the court‘s mission to give effect to the words actually used. Because there is sufficient evidence to support an implied find-
CONFLICT WITH PRECEDENT FROM THE SUPREME COURT OF TEXAS
The majority‘s analysis and disposition conflicts with the Supreme Court of Texas‘s decision in Cassidy v. Fuller.22 In Cassidy, a father filed a motion to modify the divorce decree slightly more than six months after the decree was rendered in Reeves County.23 At the same time, the father filed a motion to transfer venue of the proceeding to Clay County based on the undisputed fact that his children resided there and had resided there for more than six months.24 The trial court denied the motion to transfer, but the Cassidy court held that the trial court clearly abused its discretion in doing so.25 The Cassidy court concluded that the legislature intended venue for suits affecting the parent-child relationship to generally be in the county in which the child resides.26 The high court stated that usually the current circumstances affecting the child may be best shown in the county in which the child resides.27
When Cassidy was decided, former section 11.06(b) contained language similar to the language now contained in sections 155.201(b), 155.202(a), and 155.203 of the Texas Family Code.28 The Cassidy court held that former section 11.06(b) required transfer of the proceeding to the county in which the child was residing and had resided for more than six months; however, the trial court had discretion to deny motions for change of venue based on the child‘s residence in another county if the child had resided in the other county for less than six months.29 The Cassidy court noted that this provision operated to “forestall
Under the majority‘s interpretation of section 155.201(b), instead of preventing forum shopping, the statute is construed to promote forum shopping, by allowing a party to obtain a mandatory venue transfer to any county in which the child resided for at least six months at some time in the past. Given our increasingly mobile society, children very well may reside in a number of different Texas counties for at least six months before they reach adulthood. Today‘s interpretation allows a party to shop among all of these counties before choosing which county the party would like to be the county in which the court of continuing, exclusive jurisdiction is located. In addition, if a party is not pleased with the trial judge in the first county to which the case is transferred, the party then could file a motion to enforce or perhaps a second petition to modify and invoke section 155.201(c) to mandate a second transfer to one of the other counties in which the child resided in the past for at least six months.33 The majority‘s statutory construction conflicts with the Cassidy decision.
CONFLICT WITH THIS COURT‘S PRECEDENT
In addition, in In re T.L.J., this court construed section 155.201(b) to require that the child be a resident of the other county at the time the suit to modify was filed before a party could be entitled to a mandatory venue transfer under section 155.201(b) of the Texas Family Code.34 This court held that the trial court erred in denying a party‘s motion to transfer under section 155.201(b) based on the allegation and undisputed evidence that the child resided in another county during the six-month period ending on the date the petition to modify was filed.35 By holding that section 155.201(b) does not require the child to reside in the other county when the petition to modify is filed, the majority creates a conflict with this court‘s prior decision in In re T.L.J.36
CONFLICT WITH THE LANGUAGE OF THE STATUTE
In section 155.202(a), the legislature described a transfer under section 155.201(b) as being based on an allegation that “the child resides in another county.”37 By holding that section 155.201(b) does not require the child‘s principal residence to be in the other county when the petition to
The majority‘s analysis also conflicts with language in section 155.201(b): “if the child has resided in the other county for six months or longer.”38 The italicized words clearly show that the legislature envisioned that there would be only one “other county.” This is consistent with the requirement that the child be a resident of the other county at the time the suit to modify is filed before a party could be entitled to a mandatory venue transfer under section 155.201(b) of the Texas Family Code. It is inconsistent with the majority‘s analysis.
The majority‘s analysis also conflicts with the following emphasized language in section 155.203:
In computing the time during which the child has resided in a county, the court may not require that the period of residence be continuous and uninterrupted but shall look to the child‘s principal residence during the six-month period preceding the commencement of the suit.39
In their motion, the Naborses asserted that the Children‘s principal residence was in Fort Bend County throughout the six-month period preceding commencement of the modification suit; however, the majority applies a different and incorrect standard, namely, whether the Children had a principal residence in Fort Bend County during any six-month period before commencement of the suit.40
Under section 155.203, courts determining a child‘s residence must examine the child‘s principal residence throughout the six-month period preceding the commencement of suit and must not require uninterrupted or continuous presence.41 Under the plain meaning of section 155.203, there may be more than one county of principal residence during the six months preceding the commencement of suit.42 In this case,
CONCLUSION
The Naborses stated the correct legal standard in their motion to transfer venue but failed to establish the necessary factual predicate to prevail on their motion. Based on the evidence before it, the trial court did not abuse its discretion in denying their motion to transfer venue. Today, this court constructs a new legal standard that contradicts the language of the applicable statute as well as decisions from the Supreme Court of Texas and this court. Under the correct legal standard, the Naborses have not established their entitlement to mandamus relief. Therefore, this court should deny their mandamus petition. Because it does not, I respectfully dissent.