Mandamus is a suit brought in a court of competent jurisdiction to order an inferior court to do or not do an act. The functions of a mandamus action are to set in motion and to compel action. Mandamus is a legal remedy, but it is governed to some extent by equitable principles. Although it is an extraordinary remedy, the Texas Rules of Civil Procedure apply. Vondy v. Commissioners Court of Uvalde County, 620 S.W.2d 104, 108 (Tex. 1981). One such equitable principle mandates the use of diligence: equity aids the diligent, not those who sleep on their rights. For this reason, unjustified delay in seeking a writ of mandamus may result in the loss of this remedy. In re Abney, 486 S.W.3d 135, 138 (Tex. App.—Amarillo 2016, orig. proceeding). The person seeking relief by mandamus is the “relator.” Tex. R. App. P. 3.1(f), 52.2. The person against whom relief is being sought is the “respondent.” Tex. R. App. P. 3.1(h)(2), 52.2. A person whose interest would be directly affected by the relief sought is a “real party in interest” and a party to the case. Tex. R. App. P. 52.2.
Typically, a mandamus is filed in response to a trial court’s written order; however, a mandamus may be based on an oral ruling. See In re Cisneros, No. 13-20-00094-CV, 2020 WL 1856471, at *4 (Tex. App.—Corpus Christi–Edinburg Apr. 7, 2020, orig. proceeding) (mem. op.); 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 Cisneros, 2020 WL 1856471, at *4; 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.”).
Generally, mandamus will lie to prevent a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy provided by law. The reviewing court, therefore, acts in excess of its writ power (abuses its discretion) when it grants mandamus relief absent these circumstances. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). To authorize the issuance of the writ of mandamus, it must appear that—
1.the relator has a clear legal right to performance of the particular duty to be enforced or sought to be enforced and
2.there is no other plain, adequate, and complete method of redressing the wrong or of obtaining the relief to which the relator is entitled, so that, without the issuance of the writ, there would be a failure of justice.
Ramirez v. Flores, 505 S.W.2d 406, 411 (Tex. App.—San Antonio 1973, writ ref’d n.r.e.) (per curiam). Mandamus may not be used to establish or enforce an uncertain or disputed claim. In re Torres, 130 S.W.3d 409, 413–14 (Tex. App.—Corpus Christi–Edinburg 2004, orig. proceeding). To be entitled to mandamus relief, a relator “must have a justiciable interest in the underlying controversy,” but such an interest does not necessarily require the relator to be a party to the underlying litigation. Terrazas v. Ramirez, 829 S.W.2d 712, 723 (Tex. 1991) (orig. proceeding); see also In re Soulsby, No. 04-22-00173-CV, 2022 WL 2230726, at *3 (Tex. App.—San Antonio June 22, 2022, orig. proceeding) (attorney had standing to pursue mandamus because trial court’s ruling effectively acted as permanent injunction against attorney).
No Adequate Remedy by Appeal: In order to determine whether a writ should issue, the court of appeals must first decide whether the relator had an adequate remedy by appeal. Mandamus is intended to be an extraordinary remedy, available only in limited circumstances. Walker, 827 S.W.2d at 840. The writ will issue “only in situations involving manifest and urgent necessity and not for grievances that may be addressed by other remedies.” Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex. 1989) (orig. proceeding) (citation omitted). An appellate remedy is not inadequate merely because it may involve more expense or delay than obtaining an extraordinary writ. Walker, 827 S.W.2d at 842. Delay until appeal is more than a mere inconvenience if the matter at issue has a profound impact on the parent-child relationship or if there is a threat of irreparable harm to the children. See In re Office of Attorney General, 276 S.W.3d 611, 622 (Tex. App.—Houston [1st Dist.] 2008, orig. proceeding [mand. denied]); In re R.R., 26 S.W.3d 569, 573 (Tex. App.—Dallas 2000, orig. proceeding).
A party does not need to seek de novo review before seeking mandamus relief. However, if a party does not seek de novo review, the associate judge’s temporary orders become orders of the referring court, which becomes the respondent in the mandamus proceeding. See In re Eaton, No. 02-14-00239-CV, 2014 WL 4771608, at *3 (Tex. App.—Fort Worth Sept. 25, 2014, orig. proceeding) (mem. op.).
In 2004, the Texas Supreme Court expanded the scope of mandamus review:
The operative word, “adequate,” has no comprehensive definition; it is simply a proxy for the careful balance of jurisprudential considerations that determine when appellate courts will use original mandamus proceedings to review the actions of lower courts. These considerations implicate both public and private interests. Mandamus review of incidental, interlocutory rulings by the trial courts unduly interferes with trial court proceedings, distracts appellate court attention to issues that are unimportant both to the ultimate disposition of the case at hand and to the uniform development of the law, and adds unproductively to the expense and delay of civil litigation. Mandamus review of significant rulings in exceptional cases may be essential to preserve important substantive and procedural rights from impairment or loss, allow the appellate courts to give needed and helpful direction to the law that would otherwise prove elusive in appeals from final judgments, and spare private parties and the public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings. An appellate remedy is “adequate” when any benefits to mandamus review are outweighed by the detriments. When the benefits outweigh the detriments, appellate courts must consider whether the appellate remedy is adequate.
This determination is not an abstract or formulaic one; it is practical and prudential. It resists categorization, as our own decisions demonstrate. Although this Court has tried to give more concrete direction for determining the availability of mandamus review, rigid rules are necessarily inconsistent with the flexibility that is the remedy’s principal virtue.
In re Prudential Insurance Co., 148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding).
Legal Right to Performance: Mandamus also lies to enforce the performance of a nondiscretionary act or duty and will issue only when the act or duty is ministerial in character. An act is ministerial when the law clearly spells out the duty to be performed with such certainty that nothing is left to the exercise of discretion or judgment. Forbes v. City of Houston, 356 S.W.2d 709, 711 (Tex. App.—Houston 1962, orig. proceeding). A trial court’s act of giving consideration to a properly filed and pending motion is a ministerial act. In re Maasoumi, No. 05-08-01074-CV, 2008 WL 4881328, at *3 (Tex. App.—Dallas Nov. 13, 2008, orig. proceeding) (mem. op.). A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. This standard has different applications in different circumstances. Walker, 827 S.W.2d at 839.
With respect to resolution of factual issues or matters committed to the trial court’s discretion, the reviewing court may not substitute its judgment for that of the trial court. Walker, 827 S.W.2d at 839. The relator must establish that the trial court could reasonably have reached only one decision. Walker, 827 S.W.2d at 840. Even if the reviewing court would have decided the issue differently, it cannot disturb the trial court’s decision unless it is shown to be arbitrary and capricious. Walker, 827 S.W.2d at 840.
On the other hand, review of a trial court’s determination of the legal principles controlling its ruling is much less deferential. A trial court has no “discretion” in determining what the law is or applying the law to the facts. Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion and may result in appellate reversal by extraordinary writ. Walker, 827 S.W.2d at 840. A trial court’s wrong decision in applying or analyzing the law, even in an unsettled area of the law, is an abuse of discretion. See Huie v. DeShazo, 922 S.W.2d 920, 927–28 (Tex. 1996) (orig. proceeding).
§ 27.3Constitutional and Statutory Bases
Supreme Court of Texas: The legislature may confer original jurisdiction on the supreme court to issue writs of mandamus in such cases as may be specified, except as against the governor. Tex. Const. art. V, § 3. The court may issue writs of mandamus, agreeable to the principles of law regulating those writs, against a statutory county court judge, statutory probate court judge, district judge, court of appeals or justice of a court of appeals, or any officer of the state except the governor or the court of criminal appeals or its judges. The court (or, if the court is in vacation, any justice of the court) may also issue the writ of mandamus to compel a statutory county court judge, statutory probate court judge, or district court judge to proceed to trial and judgment in a case agreeable to the principles and usages of law. Tex. Gov’t Code § 22.002(a), (b).
Courts of Appeals: The courts of appeals shall have “such other jurisdiction, original and appellate, as may be prescribed by law.” Tex. Const. art. V, § 6(a). The courts of appeals or their judges may issue writs of mandamus and all other writs necessary to enforce their jurisdiction. Each court of appeals for a court of appeals district may issue all writs of mandamus, agreeable to the principles of law regulating those writs, against a judge of a district, statutory county, statutory probate, or county court in the court of appeals district and against an associate judge of a district or county court appointed by a judge under chapter 201 of the Family Code in the court of appeals district for the judge who appointed the associate judge. Tex. Gov’t Code § 22.221(a), (b).
Under the statutes, original proceedings for a mandamus action can be filed in both the courts of appeals and the Supreme Court of Texas. All rules relating to original proceedings in these courts are consolidated in rule 52 of the Texas Rules of Appellate Procedure.
If the court of appeals has concurrent jurisdiction of an original proceeding, the petition should first be presented to the court of appeals unless there is a compelling reason not to do so. If the petition was not first presented to the court of appeals, the petition in the supreme court must state the compelling reason that the petition was not first presented to the court of appeals. Tex. R. App. P. 52.3(e).
In an action for mandamus, the pleadings require greater certainty than in ordinary civil cases, and necessary facts must be stated clearly, fully, and unreservedly by direct and positive allegation. Alice National Bank v. Edwards, 383 S.W.2d 482, 484 (Tex. App.—Corpus Christi–Edinburg 1964, writ ref’d n.r.e.) (per curiam). The petition for mandamus must be verified by affidavit, and a verification merely reciting that the facts contained in the petition are true to the best of the affiant’s knowledge and belief is insufficient. Further, if the sworn allegations in a respondent’s answer to a petition for mandamus are not denied, the allegations in the respondent’s answer must be accepted as true. Cantrell v. Carlson, 313 S.W.2d 624, 626 (Tex. App.—Dallas 1958, orig. proceeding). On the motion of any party or on its own initiative, an appellate court may impose sanctions on a party or attorney who is not acting in good faith. Tex. R. App. P. 52.11.
Mandamus is an original proceeding in the appellate court. The petition is captioned “In re [name of party seeking relief], Relator.” Tex. R. App. P. 52.1.
Rule 52.3 sets out in detail the contents of the petition. See Tex. R. App. P. 52.3. If the petition is filed in the supreme court after the same relief was requested in the court of appeals, the petition must give details of the action in the lower court. Tex. R. App. P. 52.3(d)(5). If the petition is filed first in the supreme court, the petition must state the compelling reason that the petition was not first presented to the court of appeals. Tex. R. App. P. 52.3(e).
The person filing the petition must certify that he has reviewed it and concluded that every factual statement in it is supported by competent evidence included in the appendix or record. Tex. R. App. P. 52.3(j).
Any party may file a response, but it is not mandatory. Tex. R. App. P. 52.4. The court may deny relief without requesting or receiving a response. See Tex. R. App. P. 52.8(a). However, the court must request a response before granting relief. Tex. R. App. P. 52.8(b).
If temporary relief is requested (such as a motion for emergency stay), the relator must notify or show a diligent effort to notify all parties by expedited means of the motion for the emergency temporary relief; further, the relator must so certify to the court. Tex. R. App. P. 52.10.
When it grants relief, the court must write an opinion. Tex. R. App. P. 52.8(d).
Any party may file a motion for rehearing within fifteen days after the final order is rendered. Tex. R. App. P. 52.9.
[Sections 27.7 through 27.10 are reserved for expansion.]
§ 27.11Alternative Dispute Resolution
Arbitration: A trial court’s order that erroneously stays arbitration is subject to mandamus. Kilroy v. Kilroy, 137 S.W.3d 780 (Tex. App.—Houston [1st Dist.] 2004, orig. proceeding).
When a trial court denies arbitration under the Texas Arbitration Act, the order is subject to interlocutory appeal, whereas when a trial court denies arbitration under the Federal Arbitration Act, relief must be sought in a petition for writ of mandamus. In re Pham, 314 S.W.3d 520, 523 (Tex. App.—Houston [14th Dist.] 2010, orig. proceeding [mand. denied]).
Mediated Settlement Agreements: If a trial court fails to enter a judgment consistent with the mediated settlement agreement, a mandamus may be sought. See In re Minix, 543 S.W.3d 446 (Tex. App.—Houston [14th Dist.] 2018, orig. proceeding [mand. denied]). A relator generally has no adequate remedy by appeal when a court’s new trial order effectively constitutes a refusal to render judgment on an enforceable mediated settlement agreement. See In re Willeford, No. 04-20-00495-CV, 2021 WL 356242, at *1 (Tex. App.—San Antonio Feb. 3, 2021, orig. proceeding) (mem. op.). A mandamus is also proper when, after the parties enter into a mediated settlement agreement, the trial court grants one of the parties’ motion for new trial based on newly discovered evidence, which was not one of the statutory bases for setting aside a mediated settlement agreement. In re Bouajram, No. 02-21-00072-CV, 2021 WL 3673856, at *3–4 (Tex. App.—Fort Worth Aug. 17, 2021, orig. proceeding) (mem. op.).
§ 27.12Appellate Court’s Mandate
A mandate is an appellate court’s formal command requiring the lower court to comply with the appellate court’s judgment. When an appellate court reverses a lower court’s judgment and remands the case to the trial court, the trial court is authorized to take all actions that are necessary to give full effect to the appellate court’s judgment and mandate. The trial court has no authority to take any action that is inconsistent with or beyond the scope of that which is necessary to give full effect to the appellate court’s judgment and mandate. When a trial court exceeds its authority under a mandate, the resulting judgment is erroneous. The trial court has no discretion to review or interpret the appellate court’s mandate but, instead, must carry out the mandate. The trial court’s duty to enforce the appellate court’s judgment is mandatory and ministerial. Mandamus relief is available to enforce an appellate court’s mandate. In re K.S., No. 13-21-00006-CV, 2021 WL 832715, at *3–4 (Tex. App.—Corpus Christi–Edinburg Mar. 4, 2021, orig. proceeding) (mem. op.) (trial court abused its discretion in ignoring appellate court’s mandate by rendering 50/50 possession schedule after previous reversal and remand for rendering a different 50/50 possession schedule).
§ 27.13Attorney Disqualification
Under appropriate circumstances, a mandamus may be sought to review a trial court’s order or an appellate court’s order, granting or denying a motion to disqualify an attorney. A party “is not required to simply hope that the pending case is concluded without disclosure of its confidences,” nor is a party “required to wait until any damage will have been done and will be irremediable.” National Medical Enterprises, Inc. v. Godbey, 924 S.W.2d 123, 133 (Tex. 1996) (orig. proceeding).
Attorney disqualification is discussed at section 8.13 in this manual.
Mandamus relief may be appropriate when a trial court grants a bill of review and pleadings fail to meet the initial requirements for bringing the bill of review, which are an allegation in the pleading that the prior judgment was rendered as the result of fraud, accident, or wrongful act of the opposing party or official mistake and an allegation of sworn facts that constitute a meritorious defense. In re Attorney General, 184 S.W.3d 925, 929 (Tex. App.—Beaumont 2006, orig. proceeding) (per curiam). Mandamus relief is also appropriate when a trial court grants a bill of review based on a misrepresentation that constitutes intrinsic, not extrinsic, fraud. In re Office of Attorney General, 193 S.W.3d 690, 692–93 (Tex. App.—Beaumont 2006, orig. proceeding) (per curiam).
There is a split among the courts of appeals as to whether mandamus relief is available to challenge the granting of a bill of review. Several of the courts of appeals have held that the erroneous granting of a bill of review is effectively a void order granting a new trial, so mandamus relief is available. In addition to the Ninth Court of Appeals in Beaumont, the First, Fourth, Fifth, Seventh, Tenth, and Thirteenth Courts of Appeals allow parties to seek mandamus relief. See In re Office of Attorney General, 276 S.W.3d 611, 620–21 (Tex. App.—Houston [1st Dist.] 2008, orig. proceeding) (paternity only); In re J.M. IV, 373 S.W.3d 725, 728 (Tex. App.—San Antonio 2012, orig. proceeding); In re Reedle, No. 05-16-01483-CV, 2017 WL 944030, at *1 (Tex. App.—Dallas Mar. 10, 2017, orig. proceeding) (mem. op.); In re Epps, No. 07-14-00420-CV, 2014 WL 7448497, at *1 (Tex. App.—Amarillo Dec. 31, 2014, orig. proceeding) (mem. op.); In re Spiller, 303 S.W.3d 426, 431 (Tex. App.—Waco 2010, orig. proceeding); In re Estrada, 492 S.W.3d 42, 46–49 (Tex. App.—Corpus Christi–Edinburg 2016, no pet.). However, the First Court of Appeals does not allow mandamus relief, except in paternity cases. Patrick O’Connor & Associates, L.P. v. Wang Investment Networks, Inc., No. 01-12-00615-CV, 2013 WL 1451358, at *2 (Tex. App.—Houston [1st Dist.] Apr. 9, 2013, orig. proceeding) (mem. op.). Additionally, the Third and the Fourteenth Courts of Appeals do not allow mandamus relief at all to challenge the granting of a bill of review. However, neither of these courts has addressed the issue in a family-law matter, so maybe an argument can still be made that mandamus relief should be available. See Ott v. Files, No. 03-00-00612-CV, 2000 WL 1675737, at *1 (Tex. App.—Austin Nov. 9, 2000, no pet.) (per curiam); In re Moreno, 4 S.W.3d 278, 280–81 (Tex. App.—Houston [14th Dist.] 1999, orig. proceeding).
Mandamus relief may be available to challenge a consolidation order when the parties are in danger of permanently losing substantial rights. In re M.B., No. 05-19-00971-CV, 2019 WL 4509224, at *2 (Tex. App.—Dallas Sept. 19, 2019, orig. proceeding) (mem. op.).
A contempt judgment is reviewable only via a petition for writ of habeas corpus (if the contemner is confined) or a petition for writ of mandamus (if no confinement is involved). In re Long, 984 S.W.2d 623, 625 (Tex. 1999) (orig. proceeding) (per curiam). When contempt is punished by a fine, mandamus is the only remedy available to the relators. Ex parte Sealy, 870 S.W.2d 663, 667 (Tex. App.—Houston [1st Dist.] 1994, orig. proceeding). If fines and confinement are both imposed, they may not be considered separately and therefore may not be challenged by mandamus even if suspended. Deramus v. Thornton, 333 S.W.2d 824, 826–27 (Tex. 1960) (orig. proceeding). Additionally, where contempt is also sanctioned by an award of attorney’s fees, mandamus is the only means to review such a sanction. Ex parte Sealy, 870 S.W.2d at 667. Further, a contempt order that orders only community supervision does not restrain the party’s liberty; thus, mandamus is the proper remedy. In re C.F., 576 S.W.3d 761, 767–68 (Tex. App.—Fort Worth 2019, orig. proceeding).
Decisions in contempt proceedings cannot be reviewed on appeal because contempt orders are not appealable, even when appealed along with a judgment that is appealable. Cadle Co. v. Lobingier, 50 S.W.3d 662, 671 (Tex. App.—Fort Worth 2001, pet. denied).
A timely objection to a show cause order that could lead to a contempt order is also a proper subject for a mandamus. Dunn v. Street, 938 S.W.2d 33, 35 (Tex. 1997) (orig. proceeding) (per curiam).
In Blair v. Blair, 408 S.W.2d 257 (Tex. App.—Dallas 1966, no writ), the mother filed a motion to enforce child support by contempt. The trial court denied the motion stating that it did not have jurisdiction to hear the motion because the child had already reached the age of eighteen. The mother appealed. The court of appeals dismissed, holding, “In the instant case the motion for contempt was denied. A release from jail is not involved, so the remedy of habeas corpus is not applicable. But the order of the court is not appealable. Appellant’s remedy, if she has one, is by mandamus.” Blair, 408 S.W.2d at 257.
Pursuant to sections 157.066 and 157.115(b) of the Texas Family Code, a trial court is prohibited from holding a party in contempt by default. If a respondent fails to appear, the trial court may order a capias be issued but may not hold the party in contempt. Additionally, violating sections 157.066 and 157.115 of the Texas Family Code renders the contempt order void, as does a trial court’s failure to admonish the party of the right to counsel in accordance with section 157.163 of the Texas Family Code. On both bases, a party may seek mandamus relief. In re Daniels, No. 05-17-01260-CV, 2017 WL 6503107 (Tex. App.—Dallas Dec. 19, 2017, orig. proceeding) (mem. op.). See section 27.38 below for a discussion of void orders.
Legislative Continuance: A trial court’s refusing to grant or erroneously granting a legislative continuance may be challenged by mandamus. See Amoco Production Co. v. Salyer, 814 S.W.2d 211, 213 (Tex. App.—Corpus Christi–Edinburg 1991, orig. proceeding); Waites v. Sondock, 561 S.W.2d 772, 776 (Tex. 1977) (orig. proceeding) (trial court abused discretion in granting continuance rather than recognizing due-process exception; right to child support could not be enforced by any other means).
Legislative continuance is discussed at section 19.4 in this manual.
Nonlegislative Continuance: The granting or denial of a motion for continuance is within the trial court’s sound discretion. Mandamus is generally not available to review such a ruling. Similarly, the denial of a motion for continuance is an incidental trial ruling ordinarily not reviewable by mandamus. In the absence of any other error, a court will not grant mandamus relief merely to revise a trial judge’s scheduling order.
Only under special circumstances will mandamus relief be available. General Motors Corp. v. Gayle, 951 S.W.2d 469, 477 (Tex. 1997) (orig. proceeding) (trial court abused discretion in not granting continuance to allow for jury trial because trial court had already determined that multiple interruptions in trial were anticipated and continuance would not have injured other party); see also Union Carbide Corp. v. Moye, 798 S.W.2d 792, 792–93 (Tex. 1990) (orig. proceeding) (denial of continuance to allow defendant to supplement record with more affidavits and discovery products pertinent to motion for change of venue effectively denied right to reasonable discovery); In re Rodriguez, No. 05-20-00523-CV, 2020 WL 2487061, at *2–3 (Tex. App.—Dallas May 13, 2020, orig. proceeding) (mem. op.) (trial court abused its discretion in denying agreed continuance in light of serious consequences created by COVID-19 pandemic); In re Shulman, 544 S.W.3d 861 (Tex. App.—Houston [14th Dist.] 2017, orig. proceeding) (trial court abused discretion in abating case for five years to allow for IRS ruling on taxes, because abatement effectively vitiated defendant attorney’s ability to present claim or defense); Fountain v. Knebel, 45 S.W.3d 736, 740 (Tex. App.—Dallas 2001, no pet.) (trial court abused discretion by not granting continuance so that major asset of community, husband’s interest in law firm, could be valued; such valuation necessary for just and right division of marital estate); Harrell v. Fashing, 562 S.W.2d 544, 545–46 (Tex. App.—El Paso 1978, orig. proceeding) (per curiam) (trial court did not abuse discretion by granting continuance to allow for mental and physical exam and was not limited to contempt proceedings).
Withdrawal of Counsel: The trial court has wide discretion in granting or denying a motion for continuance. When the ground for a continuance is withdrawal of counsel, the movant must show that the lack of counsel is not due to their own fault or negligence. When an attorney is permitted to withdraw, the trial court must give the party time to secure new counsel and time for new counsel to investigate the case and prepare for trial. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986); In re Posadas USA, Inc., 100 S.W.3d 254, 258 (Tex. App.—San Antonio 2001, orig. proceeding).
§ 27.18Court-Ordered Representatives
Mandamus was available when the trial court ordered that the amicus attorney prepare, file, and circulate a written report that summarized her work, impressions, observations, and recommendations, in violation of section 107.007(a) of the Texas Family Code. In re Burwitz, No. 04-20-00576-CV, 2020 WL 7264558, at *1 (Tex. App.—San Antonio Dec. 11, 2020, orig. proceeding) (mem. op.).
Mandamus was available when the trial court excluded the guardian ad litem’s report and limited the guardian ad litem’s testimony in violation of section 107.002 of the Texas Family Code. In re Ortegon, 616 S.W.3d 48, 50–52 (Tex. App.—San Antonio, orig. proceeding).
In a de novo hearing, which is mandatory when properly requested, the parties may present witnesses on the issues specified in the request for hearing, and the referring court may also consider the record from the hearing before the associate judge. The trial court abuses its discretion if it relies solely on the transcript of the hearing before the associate judge if the appealing party wants to present witnesses on the issues specified in the request for the hearing. In re R.R., 537 S.W.3d 621 (Tex. App.—Austin 2017, orig. proceeding).
Pretrial Discovery: A party is entitled to full, fair discovery within a reasonable period. In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1998) (orig. proceeding) (per curiam). Mandamus is available in some circumstances to protect a party against an order compelling a response to a discovery request or to require a trial court to compel a party to respond. In the discovery context, the three situations in which a remedy by appeal will be inadequate are—
1.if the appellate court would not be able to cure the trial court’s discovery error—for example, the trial court erroneously orders the disclosure of privileged information that will materially affect the rights of the aggrieved party;
2.if the party’s ability to present a viable claim or defense at trial is vitiated or severely compromised by the trial court’s discovery error; and
3.if the trial court disallows discovery and the missing discovery cannot be made part of the appellate record, or the trial court after proper request refuses to make it part of the record, and the reviewing court is unable to evaluate the effect of the trial court’s error on the record before it.
Walker v. Packer, 827 S.W.2d 833, 843–44 (Tex. 1992) (orig. proceeding). In other words, if the denied discovery goes to the heart of the case, there is no adequate remedy at law. See In re Colonial Pipeline, 968 S.W.2d at 942.
Mandamus relief is appropriate to compel discovery. Texas law does not allow a party to evade discovery requests by simply asserting that the other party already has the information. Not only do such requests ensure that the parties have the same basic documents, requiring the opponent to produce certain documents enables the party seeking discovery to activate the automatic authentication rights provided by rule 193.7 of the Texas Rules of Civil Procedure. In re Sting Soccer Group, LP, No. 05-17-00317-CV, 2017 WL 5897454, at *7 (Tex. App.—Dallas Nov. 30, 2017, orig. proceeding) (mem. op.).
When a discovery order potentially violates First Amendment rights, there is no adequate remedy by appeal and mandamus is appropriate. In re Maurer, 15 S.W.3d 256, 259 (Tex. App.—Houston [14th Dist.] 2000, orig. proceeding). Mandamus is the only remedy when a protective order shields the witnesses from deposition and thereby prevents the evidence from being part of the record. See Tom L. Scott, Inc. v. McIlhany, 798 S.W.2d 556, 558 (Tex. 1990) (orig. proceeding). The blanket denial of all discovery from a witness in a civil case, when that witness is also a defendant in a pending criminal case arising out of the same facts and the witness is also expected to testify in that criminal case, is subject to mandamus. See In re R.R., 26 S.W.3d 569, 574 (Tex. App.—Dallas 2000, orig. proceeding).
Mandamus is also appropriate to protect confidential documents from discovery. In re Living Centers of Texas, Inc., 175 S.W.3d 253, 256 (Tex. 2005) (orig. proceeding). If the trial court issues an erroneous order requiring the production of privileged documents, the party claiming the privilege is left without an adequate appellate remedy. In re Christus Santa Rosa Health System, 492 S.W.3d 276, 279 (Tex. 2016) (orig. proceeding).
A trial court that fails to comply with rule 204.1 of the Texas Rules of Civil Procedure in compelling a plaintiff to submit to a mental examination abuses its discretion. In re Grohman, 640 S.W.3d 347, 349 (Tex. App.—San Antonio 2022, orig. proceeding); see also In re H.E.B. Grocery, 492 S.W.3d 300, 305 (Tex. 2016) (conditionally granting petition for writ of mandamus because trial court abused discretion in denying H.E.B.’s motion for physical examination). Further, a person who is erroneously ordered to submit to a mental health examination would have no adequate remedy at law, because once a person’s privacy has been violated, it cannot be restored. In re Grohman, 640 S.W.3d at 349.
In suits involving the establishment of parentage in which an acknowledgment of paternity has been signed, until the acknowledgment of paternity is set aside genetic testing is premature discovery and is not relevant. An order for such testing may be challenged by mandamus. See In re Attorney General, 195 S.W.3d 264, 270 (Tex. App.—San Antonio 2006, orig. proceeding).
Discovery Sanctions: Generally, discovery sanctions are not appealable until the district court renders a final judgment and an appeal is an adequate remedy for review of discovery sanctions. However, if the imposition of monetary sanctions threatens a party’s continuation of the litigation, appeal affords an adequate remedy only if payment of the sanctions is deferred until final judgment is rendered and the party has the opportunity to supersede the judgment and perfect his appeal. Braden v. Downey, 811 S.W.2d 922, 928–29 (Tex. 1991) (orig. proceeding). An appeal of sanctions is also inadequate in situations requiring the expenditure of time, such as the ordering of an attorney to perform community service during the pendency of the litigation. Nor can the attorney recover damages for service the district court may have erred in requiring him to perform. Braden, 811 S.W.2d at 930.
Mandamus will lie if a court does not exclude a person who seeks to offer an expert opinion or recommendation related to conservatorship of or possession of or access to a child if that person has not conducted a child custody evaluation in accordance with subchapter D of chapter 107 of the Texas Family Code. In re Gopalan, No. 03-21-00209-CV, 2021 WL 2964263, at *2–3 (Tex. App.—Austin July 15, 2021, orig. proceeding [mand. denied]) (mem. op.).
§ 27.22Grandparent and Other Third-Party Possession and Access
The trial court may not award grandparents possession and access unless there is evidence that the child’s parent is unfit, that the child’s health or emotional well-being would suffer if the court deferred to the parent’s decisions, or that the parent intended to exclude the grandparents from access to the child. An order for grandparent access in such circumstances may be challenged by mandamus. In re Chambless, 257 S.W.3d 698 (Tex. 2008) (orig. proceeding) (per curiam); In re Mays-Hooper, 189 S.W.3d 777 (Tex. 2006) (orig. proceeding) (per curiam). The trial court also abuses its discretion when it erroneously permits nonparents access to a child over a fit parent’s objection in a modification suit. In re C.J.C., 603 S.W.3d 804, 811 (Tex. 2020) (orig. proceeding). In re C.J.C. extended the fit-parent presumption only to parents who had previously been named a child’s managing conservator, whether sole or joint. In re B.B., 632 S.W.3d 136, 140 (Tex. App.—El Paso 2021, orig. proceeding) (fit-parent presumption inapplicable because father not previously named as child’s managing conservator).
The trial court may not deny the writ of habeas corpus based on the best interests of the child. On proof of the prior order, absent dire emergency, the grant of the writ of habeas corpus should be automatic, immediate, and ministerial, based on proof of the bare legal right to possession. Schoenfeld v. Onion, 647 S.W.2d 954, 955 (Tex. 1983) (orig. proceeding) (per curiam); see also In re deFilippi, 235 S.W.3d 319 (Tex. App.—San Antonio 2007, orig. proceeding) (per curiam) (even though father suspect in mother’s death, such evidence of wrongdoing speculative and not dire emergency to children). If the trial court fails to grant the writ of habeas corpus, mandamus is the proper remedy to compel enforcement of a relator’s right in habeas corpus proceedings to custody of a child. Lamphere v. Chrisman, 554 S.W.2d 935, 938 (Tex. 1977) (orig. proceeding); In re Lau, 89 S.W.3d 757, 759 (Tex. App.—Houston [1st Dist.] 2002, orig. proceeding); see also Greene v. Schuble, 654 S.W.2d 436, 437–38 (Tex. 1983) (orig. proceeding).
Mandamus is proper when a matter involves a complex child custody suit and even an accelerated appeal will not provide an adequate remedy because the ultimate placement of the children is uncertain and an appeal will unnecessarily prolong a final resolution of the case. In re T.R.B., 350 S.W.3d 227, 231 (Tex. App.—San Antonio 2011, orig. proceeding).
Mandamus is proper when a trial court strikes an intervention in the absence of a motion to strike. In re Marriage of J.B. & H.B., 326 S.W.3d 654, 660 (Tex. App.— Dallas 2010, pet. dism’d).
Jurisdictional Conflict: Mandamus will lie to settle a jurisdictional conflict created when two courts interfere with each other by issuing conflicting orders or injunctions. In re Cornyn, 27 S.W.3d 327, 335 (Tex. App.—Houston [1st Dist.] 2000, orig. proceeding); see also HCA Health Services v. Salinas, 838 S.W.2d 246, 248 (Tex. 1992) (orig. proceeding) (per curiam) (no adequate remedy by appeal for litigation deadlocked when two courts attempted to exercise jurisdiction). Mandamus is proper when there is a jurisdictional conflict under the Uniform Child Custody Jurisdiction and Enforcement Act. Powell v. Stover, 165 S.W.3d 322 (Tex. 2005) (orig. proceeding); In re Forlenza, 140 S.W.3d 373 (Tex. 2004) (orig. proceeding). Mandamus also lies with regard to a plea in abatement in a dominant-jurisdiction case. In re J.B. Hunt Transport, Inc., 492 S.W.3d 287, 299–300 (Tex. 2016) (orig. proceeding); In re Fischer, No. 05-20-00278-CV, 2020 WL 4592832, at *2 (Tex. App.—Dallas Aug. 11, 2020, orig. proceeding) (mem. op.).
Standing: A component of subject-matter jurisdiction, standing is a constitutional prerequisite to maintaining a suit under Texas law. Mandamus will lie to challenge a party’s lack of standing. In re Torres, 614 S.W.3d 798, 801 (Tex. App.—Waco 2020, orig. proceeding); In re Smith, 262 S.W.3d 463, 465 (Tex. App.—Beaumont 2008, orig. proceeding [mand. denied]) (per curiam). Mandamus will also lie if a trial court erroneously determines that a party lacks standing. In re Cisneros, No. 13-20-00094-CV, 2020 WL 1856471, at *4 (Tex. App.—Corpus Christi–Edinburg Apr. 7, 2020, orig. proceeding) (mem. op.).
Personal Jurisdiction: Denial of a special appearance in family law cases is subject to mandamus review because section 51.014(a)(7) of the Texas Civil Practice and Remedies Code precludes an interlocutory appeal. Knight Corp. v. Knight, 367 S.W.3d 715, 723 (Tex. App.—Houston [14th Dist.] 2012, orig. proceeding); In re J.W.L., 291 S.W.3d 79, 83 (Tex. App.—Fort Worth 2009, orig. proceeding [mand. denied]); see Tex. Civ. Prac. & Rem. Code § 51.014(a)(7).
Mandamus is proper to challenge the trial court’s grant or denial of a motion seeking to remove or void a lis pendens. In re Collins, 172 S.W.3d 287 (Tex. App.—Fort Worth 2005, orig. proceeding) (challenge to trial court’s grant of motion to void lis pendens); In re Med Plus Equity Investments, L.P., No. 05-05-00404-CV, 2005 WL 1385238 (Tex. App.—Dallas June 13, 2005, orig. proceeding) (mem. op.) (because property is only collaterally involved in plaintiff’s claims, lis pendens is void, and trial court erred when it refused to cancel lis pendens); In re Kroupa-Williams, No. 05-05-00375-CV, 2005 WL 1367950 (Tex. App.—Dallas June 10, 2005, orig. proceeding) (mem. op.) (trial court erred when it ordered dissolution of lis pendens without conditioning that dissolution on making of deposit required by section 12.008 of Texas Property Code).
§ 27.28Mandatory Findings of Fact Regarding Possession
Mandamus is proper when a trial court imposes restrictions on a conservator’s periods of possession without providing a means to remove those restrictions and, although timely requested, fails to make the mandatory findings required by section 153.258 of the Texas Family Code. In re Rangel, No. 04-17-00060-CV, 2017 WL 1161173 (Tex. App.—San Antonio Mar. 29, 2017, orig. proceeding) (mem. op.).
§ 27.29Order on Motion for New Trial
A trial court’s failure to specifically state the reason for granting a new trial after a jury verdict may be challenged by mandamus. In re Columbia Medical Center of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204 (Tex. 2009) (orig. proceeding). A trial court grant of a motion for new trial when the movant was not a party in the underlying suit affecting the parent-child relationship may be challenged by mandamus. In re Trevino, 329 S.W.3d 906 (Tex. App.—Dallas 2010, orig. proceeding).
§ 27.30Protection of Constitutional Rights
If an order violates the relator’s state constitutional rights and the relator has no other legal remedy, mandamus is the appropriate vehicle to assail the order.
Relator Not Required to Violate Order and Subject Self to Contempt: When no appealable order has been entered and the relator may test the order only by violating it and subjecting himself to contempt, there is no adequate remedy. San Antonio Express-News v. Roman, 861 S.W.2d 265, 266–67 (Tex. App.—San Antonio 1993, orig. proceeding) (per curiam). The Texas Supreme Court has acknowledged that mandamus may issue where the legal process itself would violate the relator’s constitutional rights. See Tilton v. Marshall, 925 S.W.2d 672, 682 (Tex. 1996) (orig. proceeding); In re Aubin, 29 S.W.3d 199, 203 (Tex. App.—Beaumont 2000, orig. proceeding).
Due-Process Right to Notice: Mandamus may issue to correct an abuse of discretion if a trial court issues an order without notice of or meaningful hearing in violation of due process. In re Office of Attorney General, No. 13-20-00133-CV, 2020 WL 1951544, at *6 (Tex. App.—Corpus Christi–Edinburg Apr. 23, 2020, orig. proceeding) (mem. op.); In re Acceptance Insurance Co., 33 S.W.3d 443, 448 (Tex. App.—Fort Worth 2000, orig. proceeding); see also In re Bennett, 960 S.W.2d 35, 40 (Tex. 1997) (orig. proceeding) (per curiam) (court of appeals abused discretion by issuing writ of mandamus directing trial court to vacate sanctions order where sanctioned counsel were afforded due process by being given notice of trial court’s intent to consider sanctions and opportunity to respond); In re Champagne, No. 03-21-00426-CV, 2021 WL 4976719, at *2 (Tex. App.—Austin Oct. 27, 2021, orig. proceeding) (mandamus granted after trial court abused discretion by failing to give father proper notice and right to be heard).
Due-Process Right to Trial: A trial court has no authority to refuse to set a trial and stay proceedings until interim attorney’s fees are paid. Although an appellate court does not have mandamus power to compel the trial judge to reach a result that necessarily involves his discretion, it may mandamus him to hold a trial or hearing and to exercise his discretion. In re Flores, 135 S.W.3d 863 (Tex. App.—Houston [1st Dist.] 2004, orig. proceeding).
Right to Trial by Jury: Denial of trial by jury is reviewable by mandamus. In re Prudential Insurance Co., 148 S.W.3d 124, 139 (Tex. 2004) (orig. proceeding); In re M.B., No. 05-19-00971-CV, 2019 WL 4509224, at *2 (Tex. App.—Dallas Sept. 19, 2019, orig. proceeding) (mem. op.). An appeal is particularly inadequate to remedy the denial of a jury trial in cases involving child custody issues. In re Montelongo, 586 S.W.3d 513, 517 (Tex. App.—Houston [14th Dist.] 2019, orig. proceeding).
Right to Defend Oneself: Mandamus lies to address a party’s complaint about the trial court’s exclusion of evidence when there is no remedy by appeal. In re Athans, No. 09-20-00074-CV, 2020 WL 1770903 (Tex. App.—Beaumont Apr. 9, 2020, orig. proceeding) (mem. op.) (per curiam) (husband not allowed to put on evidence that decree wife seeking to enforce against him is void because marriage on which it was based was void). Mandamus was proper when a party was not afforded an opportunity for meaningful participation in a hearing on his motion to vacate a protective order. In re Gillespie, No. 14-22-00174-CV, 2022 WL 2350041, at *3 (Tex. App.—Houston [14th Dist.] June 30, 2022, orig. proceeding).
Prior Restraints on Speech: Mandamus may be used to challenge a gag order prohibiting discussion of a civil case outside the courtroom. Without findings supported by evidence that imminent or irreparable harm to the judicial process will deprive the parties of a just resolution of their dispute and that the gag order is the least restrictive means to prevent the harm, a trial court’s issuance of a gag order instructing parties’ counsel not to interview discharged jurors is an unconstitutional prior restraint on speech. In re State Farm Lloyds, 254 S.W.3d 632, 634 (Tex. App.—Dallas 2008, orig. proceeding).
The same principle applies to restraints on speech that are frequently present in temporary restraining orders and standing orders in family law cases. In Grigsby v. Coker, 904 S.W.2d 619, 621 (Tex. 1995) (per curiam), the supreme court determined that even in child custody cases the court’s broad power to grant injunctive relief regarding the disparagement of a party must still have constitutional constraints. Such injunctions are valid only when an imminent and irreparable harm to the judicial process will deprive litigants of a just resolution of their dispute and the injunctive relief is the least restrictive means to prevent that harm. Davenport v. Garcia, 834 S.W.2d 4, 9 (Tex. 1992).
Mandamus is the proper appellate procedure to review complaints about a protective order that is in effect while the parties’ divorce proceeding or suit affecting the parent-child relationship remains pending in the trial court. In re Goddard, No. 12-18-00355-CV, 2019 WL 456866, at *2 (Tex. App.—Tyler Feb. 6, 2019, orig. proceeding) (mem. op.); Bilyeu v. Bilyeu, 86 S.W.3d 278, 282 (Tex. App.—Austin 2002, no pet.); Ruiz v. Ruiz, 946 S.W.2d 123, 124 (Tex. App.—El Paso 1997, no writ) (per curiam). Unless specific circumstances provided in sections 84.002 through 84.005 of the Family Code exist, the trial court is required to hold a hearing within the statutorily mandated timeframe for family law protective orders, and its failure to do so is an abuse of discretion. In re Nanua, No. 13-22-00103-CV, 2022 WL 2024869, at *7 (Tex. App.—Corpus Christi–Edinburg June 6, 2022, orig. proceeding) (mem. op.).
With two exceptions, protective orders issued under subtitle B of title 4 of the Family Code may be appealed. A protective order rendered against a party in a suit for dissolution of marriage may not be appealed until the final decree of dissolution becomes a final, appealable order. A protective order rendered against a party in a suit affecting the parent-child relationship may not be appealed until an order providing for support of the child or possession of or access to the child becomes a final, appealable order. Tex. Fam. Code § 81.009.
Although a referring court has discretion with respect to how it chooses to act on an associate judge’s proposed order or judgment, it cannot refuse to take any action. In re Clark, No. 01-15-00729-CV, 2016 WL 3541704, at *4 (Tex. App.—Houston [1st Dist.] June 28, 2016, orig. proceeding) (mem. op.). A trial court has a ministerial duty to consider and rule within a reasonable time on a motion brought to the court’s attention. In re Bonds, 57 S.W.3d 456, 457 (Tex. App.—San Antonio 2001, orig. proceeding). Refusal to rule on a pending motion within a reasonable amount of time can be remedied by mandamus. See In re Shredder Co., 225 S.W.3d 676, 679 (Tex. App.—El Paso 2006, orig. proceeding) (citing In re Greenwell, 160 S.W.3d 286, 288 (Tex. App.—Texarkana 2005, orig. proceeding)). Whether a reasonable time has elapsed depends on the circumstances of each case. In re Blakeney, 254 S.W.3d 659, 662 (Tex. App.—Texarkana 2008, orig. proceeding). “Determining what time period is reasonable is not subject to exact formulation. . . . Moreover, no bright line separates a reasonable time period from an unreasonable one.” In re Blakeney, 254 S.W.3d at 662 (citing In re Keeter, 134 S.W.3d 250, 253 (Tex. App.—Waco 2003, orig. proceeding)). Periods of eighteen months, thirteen months, ten months, six months, and three months have been held to be too long for a trial court not to rule. See In re Espinoza, No. 04-19-00838-CV, 2020 WL 86215, at *1 (Tex. App.—San Antonio Jan. 8, 2020, orig. proceeding) (mem. op.); In re Hines, No. 05-19-00243-CV, 2019 WL 1615363, at *1 (Tex. App.—Dallas Apr. 15, 2019, orig. proceeding) (mem. op.); In re Kleven, 100 S.W.3d 643, 644–45 (Tex. App.—Texarkana 2003, orig. proceeding); In re Ramirez, 994 S.W.2d 682, 684 (Tex. App.—San Antonio 1998, orig. proceeding); Kissam v. Williamson, 545 S.W.2d 265 (Tex. App.—Tyler 1976, orig. proceeding) (per curiam).
Since temporary orders are not subject to an interlocutory appeal, except appointment of receiver and injunctive relief, mandamus is an appropriate remedy to attack the issuance of temporary orders in a suit affecting the parent-child relationship. See Dancy v. Daggett, 815 S.W.2d 548, 549 (Tex. 1991) (per curiam); In re Lemons, 47 S.W.3d 202, 203–04 (Tex. App.—Beaumont 2001, orig. proceeding) (per curiam).
If the temporary orders provide for performance before the date of the de novo hearing, a party may seek a stay of those orders by mandamus. In re E.M., No. 02-14-00403-CV, 2015 WL 128739 (Tex. App.—Fort Worth Jan. 9, 2015, orig. proceeding) (mem. op.).
A trial court abused its discretion when it entered temporary orders changing the designation of the person with the right to designate the primary residence of the child, because there was no evidence that the child’s present living environment endangered her physical health or significantly impaired her emotional development. In re Levay, 179 S.W.3d 93 (Tex. App.—San Antonio 2005, orig. proceeding); see also Tex. Fam. Code § 156.006; In re Coker, No. 03-17-00862-CV, 2018 WL 700033 (Tex. App.—Austin Jan. 23, 2018, orig. proceeding) (mem. op.) (imposing geographic restriction when previously none had existed has effect of changing conservator with right to determine child’s primary residence); In re Tindell, No. 03-18-00274-CV, 2018 WL 3405035 (Tex. App.—Austin July 12, 2018, orig. proceeding) (mem. op.) (mother’s frequent moves insufficient to support temporary orders changing person with exclusive right to determine child’s residence); In re G.P., 495 S.W.3d 927, 931 (Tex. App.—Fort Worth 2016, orig. proceeding) (restriction regarding temporary orders changing person with right to designate child’s residence did not apply because no final order previously granted that right).
A trial court abused its discretion when it entered temporary orders confirming the father as the joint managing conservator with the right to determine domicile and enjoining the mother from visiting with the child outside the county instead of enforcing a Canadian order, obtained pursuant to the Hague Convention, that the father return the child to the mother in Canada. In re Lewin, 149 S.W.3d 727 (Tex. App.—Austin 2004, orig. proceeding).
A trial court abused its discretion when it refused to dismiss the husband’s posttrial motion for contempt pending appeal, because the trial court’s power to issue such an order (to assist in enforcing the terms of the property division in the decree) is abated pursuant to section 9.007(c) of the Texas Family Code. In re Fischer-Stoker, 174 S.W.3d 268 (Tex. App.—Houston [1st Dist.] 2005, orig. proceeding).
A trial court abused its discretion by issuing a temporary order granting custody to the mother without setting a date for the end of the mother’s custody or for another hearing. In re Bradshaw, 273 S.W.3d 851, 859–60 (Tex. App.—Houston [14th Dist.] 2008, orig. proceeding [mand. denied]).
A trial court abused its discretion when it rendered temporary orders regarding conservatorship of a child without notice and without a hearing. In re Chester, 357 S.W.3d 103, 106–07 (Tex. App.—San Antonio 2011, orig. proceeding).
A trial court abused its discretion when it rendered temporary orders that deprived a parent of the physical possession of her child when the pleading seeking termination of the mother’s rights neither was verified nor had an attached affidavit as required by section 105.001(c) of the Texas Family Code. In re Barrera, No. 03-18-00271-CV, 2018 WL 1916023 (Tex. App.—Austin Apr. 23, 2018, orig. proceeding) (mem. op.).
A trial court abused its discretion when it issued temporary orders that a mother pay guideline child support when no evidence was given about her available net resources. In re Chesser, No. 10-21-00039-CV, 2021 WL 2385801, at *1–2 (Tex. App.—Waco June 9, 2021, orig. proceeding) (mem. op.).
A trial court abused its discretion by awarding interim attorney’s fees related to a temporary orders hearing under section 105.001(a)(5) of the Texas Family Code when there was no evidence that the attorney’s fees were necessary for the safety and welfare of the child. In re O’Connor, No. 03-21-00159-CV, 2021 WL 3868758, at *2 (Tex. App.—Austin Aug. 31, 2021, orig. proceeding) (mem. op.).
§ 27.34Temporary Orders Pending Appeal
A relator may challenge temporary orders pending appeal obtained pursuant to Family Code section 6.709 by mandamus when the trial court’s order constitutes an abuse of discretion and the pending appeal provides an inadequate remedy. In re Merriam, 228 S.W.3d 413 (Tex. App.—Beaumont 2007, orig. proceeding) (per curiam); see Tex. Fam. Code § 6.709(l)(3).
A trial court abused its discretion when it issued temporary orders pending appeal ordering the father to pay the mother appellate attorney’s fees based on the best interest of the child, rather than based on the safety and welfare of the child as required by sections 105.001(a)(5) and 109.001(a)(5) of the Texas Family Code. Additionally, even if the trial court had applied the correct standard, there was no evidence to support that the fees were necessary for the safety and welfare of the child. In re Mansfield, No. 04-19-00249-CV, 2019 WL 2439104, at *2–3 (Tex. App.—San Antonio June 12, 2019, orig. proceeding) (mem. op.).
In temporary orders pending appeal in a suit affecting the parent-child relationship, an award of appellate attorney’s fees is not required to be conditioned on a successful appeal if the evidence establishes that such fees are necessary to preserve and protect the safety and welfare of the child during the pendency of the appeal. In re Mansour, 360 S.W.3d 103, 108–09 (Tex. App.—San Antonio 2020, orig. proceeding); In re Jafarzadeh, No. 05-14-01576-CV, 2015 WL 72693, at *2 (Tex. App.—Dallas Jan. 2, 2015, orig. proceeding) (mem. op.). But see In re Carter–Faughtenbery, No. 04-20-00362-CV, 2020 WL 5370605, at *2 (Tex. App.—San Antonio Sept. 9, 2020, orig. proceeding) (mem. op.) (trial court abused its discretion because there was no evidence that paternal grandmother’s payment of unconditional attorney’s fees was necessary to preserve and protect child’s safety and welfare during pendency of appeal).
§ 27.35Third-Party Actions for Fraud on Community
Mandamus was found to be proper in a situation where the trial court had severed out a third-party action involving fraud on the community. Third-party actions involving fraud on the community should not be severed and should be tried with, or before, the divorce action. See In re Burgett, 23 S.W.3d 124, 127–28 (Tex. App.—Texarkana 2000, orig. proceeding).
§ 27.36Turnover Order during Pendency of Divorce
Mandamus was found to be proper when the husband was ordered to turn over funds in the trial court’s registry to pay the wife’s attorney’s fees in an ongoing divorce action. Without a final judgment, a turnover order is void. Further, a trial court may not include in a turnover order a nonjudgment third party, such as the wife’s attorney. In re Alsenz, 152 S.W.3d 617 (Tex. App.—Houston [1st Dist.] 2004, orig. proceeding).
Venue determinations generally are incidental trial rulings that are correctable on appeal and are not appropriate for mandamus relief. Bridgestone/Firestone, Inc. v. Thirteenth Court of Appeals, 929 S.W.2d 440, 441 (Tex. 1996) (orig. proceeding) (per curiam). Exceptions to the general rule include the following.
Supplementation of Record: The trial court abuses its discretion when it fails to afford a party seeking a transfer under rule 257 of the Texas Rules of Civil Procedure a reasonable opportunity to supplement the venue record before the venue hearing with affidavits and discovery products. See Union Carbide Corp. v. Moye, 798 S.W.2d 792, 793 (Tex. 1990) (orig. proceeding).
Suit Affecting the Parent-Child Relationship: The Family Code provides for mandatory transfer of a suit affecting the parent-child relationship in certain circumstances. See Tex. Fam. Code §§ 103.002, 155.201, 155.301. If the trial court refuses to transfer a case, in violation of the mandatory provisions, the proper remedy is mandamus. See Leonard v. Paxson, 654 S.W.2d 440, 441 (Tex. 1983) (orig. proceeding). Mandamus is available to compel mandatory transfer in suits affecting the parent-child relationship. Proffer v. Yates, 734 S.W.2d 671, 673 (Tex. 1987) (orig. proceeding) (per curiam); Arias v. Spector, 623 S.W.2d 312, 313 (Tex. 1981) (orig. proceeding) (per curiam).
Transfer of a case to a county in which the child has resided for more than six months is a mandatory ministerial duty under section 155.201 of the Texas Family Code. “Parents and children who have a right under the mandatory venue provisions to venue in a particular county should not be forced to go through a trial that is for naught. Justice demands a speedy resolution of child custody and child support issues.” Proffer, 734 S.W.2d at 673. A court has a mandatory and ministerial duty to transfer a case—without a hearing—if the opposing party fails to file a controverting affidavit. An order refusing to transfer venue is subject to mandamus. Tex. Fam. Code § 155.204(c); In re Paredes, No. 13-20-00509-CV, 2021 WL 317643, at *1 (Tex. App.—Corpus Christi–Edinburg Jan. 27, 2020, orig. proceeding) (mem. op.).
If parties are sharing custody of a child on an every-other-week or similar basis and live in two different counties, suit must be brought in the county in which the parent in actual possession of the child on the date of the filing of the cause of action resides. See In re Narvaiz, 193 S.W.3d 695, 700 (Tex. App.—Beaumont 2006, orig. proceeding) (per curiam). When siblings live in different counties, transfer as to some, but not all, children may be appropriate, and section 155.207 of the Texas Family Code clearly contemplates severance in those instances because it prescribes the procedure for handling the case files when one child is transferred and another child is not. In re Yancey, 550 S.W.3d 671, 675 (Tex. App.—Tyler 2017, orig. proceeding).
If children are placed in foster care for six months or longer before a suit affecting the parent-child relationship is filed, the trial court has a mandatory duty to transfer the suit to the county in which the children reside with the foster parents. In re Kerst, 237 S.W.3d 441, 444–45 (Tex. App.—Texarkana 2007, orig. proceeding).
Under UIFSA, once a Texas court that has jurisdiction enters a child support order, that court is the only court entitled to modify the decree as long as it retains continuing, exclusive jurisdiction. The trial court abused its discretion when it transferred a suit to modify the support order to Illinois where the father lived when the mother continued to reside in Texas. Although a court of another state may enforce the Texas support decree, that court has no authority to modify the support order as long as one of the parties remains in Texas, the issuing state. UIFSA, unlike the UCCJEA, provides no mechanism for the issuing tribunal of a support order to decline to exercise continuing exclusive jurisdiction and transfer jurisdiction to modify a support order to a court in another state. In re Meekins, 550 S.W.3d 729 (Tex. App.—Houston [1st Dist.] 2018, orig. proceeding).
Under the UCCJEA, a Texas court that has jurisdiction over a child custody proceeding may decline to exercise its jurisdiction if “it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum.” Tex. Fam. Code § 152.207(a). In making this determination, the court “shall consider all relevant factors” set forth in section 152.207(b) of the Texas Family Code, and a mandamus is available if the facts and circumstances extinguish any choice in the matter. In re Minschke, No. 13-20-00508-CV, 2021 WL 1844240, at *8–11 (Tex. App.—Corpus Christi–Edinburg May 7, 2021, orig. proceeding) (mem. op.) (mandamus granted because court could reasonably have reached only one conclusion—that Texas was not a convenient forum for suit).
Failure to Give Notice of Hearing: It is an abuse of discretion, correctable by mandamus, for a trial court to rule on a motion to transfer venue without giving the parties the notice required by rule 87(1) of the Texas Rules of Civil Procedure. Henderson v. O’Neill, 797 S.W.2d 905, 905 (Tex. 1990) (orig. proceeding) (per curiam).
Mandamus is proper to correct a void order, one which a trial court has no power to render. Geary v. Peavy, 878 S.W.2d 602, 603 (Tex. 1994) (orig. proceeding) (per curiam); Urbish v. 127th Judicial District Court, 708 S.W.2d 429, 431 (Tex. 1986) (orig. proceeding); Erbs v. Bedard, 760 S.W.2d 750, 753–54 (Tex. App.—Dallas 1988, orig. proceeding). Mandamus will lie to nullify an order entered without legal authority. See Eckels v. Gist, 743 S.W.2d 330, 330 (Tex. App.—Houston [1st Dist.] 1987, orig. proceeding); State ex rel. Wade v. Stephens, 724 S.W.2d 141, 143 (Tex. App.—Dallas 1987, orig. proceeding). If a trial court enters an order that it does not have the constitutional, statutory, or inherent authority to enter, mandamus will lie. See Shelvin v. Lykos, 741 S.W.2d 178, 185 (Tex. App.—Houston [1st Dist.] 1987, orig. proceeding).
Mandamus will lie when a trial court acts after its plenary power has expired. In re Lovito-Nelson, 278 S.W.3d 773, 776 (Tex. 2009) (orig. proceeding) (per curiam). Mandamus is also appropriate when a trial court grants relief against an entity not before the court. In re Ashton, 266 S.W.3d 602, 604 (Tex. App.—Dallas 2008, orig. proceeding).
When an assigned judge overrules a timely objection to his assignment, all of the judge’s subsequent orders are void and the objecting party is entitled to mandamus relief. In re Canales, 52 S.W.3d 698, 701 (Tex. 2001) (orig. proceeding). Similarly, if a foreign judgment creditor seeks to enforce its judgment in Texas, it must comply with the statutory requirements for enforcing a foreign judgment. The trial court has jurisdiction to enforce the judgment only when the creditor complies with the statutory requirements. Allen v. Tennant, 678 S.W.2d 743, 744 (Tex. App.—Houston [14th Dist.] 1984, orig. proceeding). If the creditor fails to do so, all orders pertaining to the foreign judgment should be set aside as void. Allen, 678 S.W.2d at 744. Mandamus is proper in the absence of an adequate remedy when a district court fails to observe a mandatory statutory provision, and its failure to comply with the mandatory provision renders its order or judgment void. Allen, 678 S.W.2d at 745.
Contempt orders violating the automatic bankruptcy stay are void. In re Small, 286 S.W.3d 525 (Tex. App.—Houston [14th Dist.] 2009, orig. proceeding). Mandamus is also proper when a court fails to grant a statutorily required motion to dismiss. In re Department of Family & Protective Services, 273 S.W.3d 637, 645 (Tex. 2009).
Contempt orders holding someone in contempt for nonpayment of a debt are unconstitutional. See Tucker v. Thomas, 419 S.W.3d 292, 297 (Tex. 2013) (“The Texas Constitution prohibits a trial court from confining a person under its contempt powers as a means of enforcing a judgment for debt.”); In re Green, 221 S.W.3d 645, 647 (Tex. 2007) (orig. proceeding) (per curiam); In re Henry, 154 S.W.3d 594, 597–98 (Tex. 2005) (orig. proceeding); Ex parte Hall, 854 S.W.2d 656, 656–57 (Tex. 1993) (orig. proceeding). A commitment order that violates the Texas Constitution is beyond the court’s power and is void. In re Henry, 154 S.W.3d at 596.
In In re C.F., the court held the wife in contempt for failing to pay a student-loan debt. When a divorce court finds an asset exists and awards it in the divorce to one spouse, the other spouse who holds the asset is not indebted to the spouse owning the asset but is a constructive trustee and can be held in contempt. However, here there was no indication in the divorce decree that the wife was awarded funds in the divorce from which to pay the student-loan debt; she was therefore not a constructive trustee or fiduciary subject to contempt for her failure to pay it. Therefore, the order was void and mandamus was the proper remedy. See In re C.F., 576 S.W.3d 761, 769–70 (Tex. App.—Fort Worth 2019, orig. proceeding).
Voidable orders are readily appealable and must be attacked directly, but void orders may be circumvented by collateral attack or remedied by mandamus. Sanchez v. Hester, 911 S.W.2d 173, 176 (Tex. App.—Corpus Christi–Edinburg 1995, orig. proceeding). Appeal is therefore wholly unnecessary to establish the invalidity of a void order. See Sanchez, 911 S.W.2d at 177. An attack may be made in any proceeding having as its general objective a finding that such judgment was void when entered; mandamus is a proper mode of attack on a void judgment. Thomas v. Miller, 906 S.W.2d 260, 262–63 (Tex. App.—Texarkana 1995, orig. proceeding).
Withdrawal of counsel is an appropriate subject of a mandamus proceeding. In re Posadas USA, Inc., 100 S.W.3d 254, 256 (Tex. App.—San Antonio 2001, orig. proceeding).
A writ of mandamus will not lie to prohibit the enforcement of a temporary injunction that has been issued in a case before the court of appeals on appeal, as it would interfere with that court’s jurisdiction. See Bray v. Schultz, 376 S.W.2d 82, 85 (Tex. App.—Amarillo 1963, orig. proceeding) (per curiam).
Generally, a writ of mandamus will not issue to control or correct rulings or judgments on motions or pleas that are merely incidental to the normal trial process when there is an adequate remedy by appeal for correction of any erroneous ruling or judgment. However, a writ of mandamus will issue directing a district judge to enter or set aside a particular judgment or order when the directed course of action is the only proper course and the relator has no other adequate remedy. State ex rel. Pettit v. Thurmond, 516 S.W.2d 119, 121 (Tex. 1974) (orig. proceeding).
Since temporary injunctions are subject to interlocutory appeal, mandamus is not appropriate. In re Sigmar, 270 S.W.3d 289, 296 (Tex. App.—Waco 2008, orig. proceeding [mand. denied]).
[Chapters 28 through 30 are reserved for expansion.]