Form 27-2

Petition for Writ of Mandamus

[to Transfer Cause]

Under Tex. R. App. P. 52, in all original proceedings in the appellate courts a single document serves as the petition and brief. The petition should follow the specific formatting and filing requirements stated in Tex. R. App. P. 9. Except under limited circumstances, all documents must now be electroni­cally filed in the appellate courts, and the requirements for doing so are set forth in Tex. R. App. P. 9. In the caption, the proper court of appeals (or the Supreme Court of Texas) should be designated. (If emergency relief is needed, a separate motion for that relief is required. Tex. R. App. P. 52.10. See form 27-4.)

This form is a petition for mandamus filed in response to the denial of a motion to transfer. For a peti­tion for mandamus seeking the return of a child, see form 27-1.

No. __________

In the [Court of Appeals/Supreme Court of Texas]

[number] Judicial District
[city], Texas

In re [name of party seeking relief], Relator
________________________

Petition for Writ of Mandamus

[Name]
State Bar No.:
[E-mail address]
[Address]
[Telephone]
[Fax]

   
ATTORNEY FOR RELATOR

   [Include if applicable: Oral Argument Requested]

Identity of Parties and Counsel

The following is a list of all parties and all counsel who have appeared in this matter:

Relator: [name]

Attorney for Relator in the [trial/appellate] court: [name, address, and State Bar number]

Respondent: [name]

Attorney for Respondent in the [trial/appellate] court: [name, address, and State Bar number]

Real party in interest: [name]

Attorney for real party in interest in the [trial/appellate] court: [name, address, and State Bar number]

Table of Contents

Index of Authorities

Statement of the Case

1.The underlying suit is [describe case, e.g., a suit affecting the parent-child rela­tionship/a petition to modify a prior order in a suit affecting the parent-child relationship/a petition to establish parentage], in which Relator filed a motion to transfer.

2.Respondent denied Relator’s Motion to Transfer on [date].

3.Respondent is [name of respondent], Judge of the [designation] Court of [county] County, Texas, whose address is [address, city, state].

4.A petition requesting the same relief was filed in the Court of Appeals for the [number] Judicial District on [date]. The justices who participated in the decision were [list]. The author of the [majority] opinion by the court was [name]. [Include as applicable: The author of the concurring opinion by the court was [name]./The author of the dissenting opin­ion by the court was [name].] The opinion is [unpublished/reported at [specify]]. The court of appeals ordered [specify disposition of the case by the court of appeals].

Statement of Jurisdiction

This Court has jurisdiction to issue a writ of mandamus under [section 3/section 6] of article V of the Texas Constitution and [section 22.002(a)/section 22.221(a)] of the Texas Government Code.

Issue[s] Presented

PETITION FOR WRIT OF MANDAMUS

Statement of Facts

Argument and Authorities

A.Standard of Review: Availability of Mandamus Relief

Requisites to mandamus relief are a showing of (1) a legal duty to perform a nondiscre­tionary act, (2) a demand for performance of a nondiscretionary act, and (3) a refusal to per­form after such demand was made. Erbs v. Bedard, 760 S.W.2d 750, 755 (Tex. App.—Dallas 1988) (orig. proceeding). Mandamus relief is available when under the circumstances of the case the facts and law permit the trial court to make but one decision—and the trial court has refused to make that decision—and remedy by appeal to correct the ruling is inadequate. Prof­fer v. Yates, 734 S.W.2d 671, 673 (Tex. 1987) (orig. proceeding).

Mandamus is available to compel mandatory transfer in suits affecting the parent-child relationship. Proffer, 734 S.W.2d at 672; Arias v. Spector, 623 S.W.2d 312, 313 (Tex. 1981) (orig. proceeding). Transfer of a case to a county where the child has resided for more than six months is a mandatory ministerial duty under section 11.06(b) (now section 155.201) of the Texas Family Code. Proffer, 734 S.W.2d at 673. 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. Proffer, 734 S.W.2d at 673. Justice demands a speedy resolu­tion of child custody and child support issues. Proffer, 734 S.W.2d at 673.

B.Issue No. 1:

Prayer

Relator prays that this Court issue its writ of mandamus commanding the trial court to vacate the order of [date] denying Relator’s Motion to Transfer and ordering the trial court to grant Relator’s Motion to Transfer and transfer the case to [county] County, Texas.

   
[Name]
Attorney for Relator
State Bar No.:
[E-mail address]
[Address]
[Telephone]
[Fax]

Certification of Facts and Verification of Record

Pursuant to rule 52.3(j) of the Texas Rules of Appellate Procedure, I certify that I have thoroughly reviewed the Court’s file in this matter. I have personal knowledge of the facts stated herein, and such matters are true and correct. Additionally, I have personal knowledge that the items in the appendix and record are true and correct copies of documents material to Relator’s claims and are either pleadings that are on file in the underlying suit, hearing tran­scripts and exhibits, or orders signed by the trial court in the underlying suit in this cause num­ber [number] in the [designation] Court of [county] County, Texas.

   
[Name of attorney]

Certificate of Counsel Regarding Word Count

Pursuant to rule 9 of the Texas Rules of Appellate Procedure, I certify that the word count in this Petition for Writ of Mandamus, excluding the caption and introductory matters, signature, proof of service, certification, certificate of compliance, and appendix, totals [num­ber] words.

   
[Name of attorney]

Certificate of Service

I certify that a true copy of this Petition for Writ of Mandamus was served in accor­dance with rule 9.5 of the Texas Rules of Appellate Procedure on each party or that party’s lead counsel as follows:

Name of person served: [[name of lead attorney], attorney for [name of party]/[name of unrep­resented party]]

Address of person served: [address]

Method of service: [by electronic filing manager/by e-mail at [e-mail address]/by fax at [fax number]/by personal delivery at [address]/by commercial delivery service at [address]/by certified mail at [address]/by first-class mail at [address]]

Date of service: ______________________________

Appendix

This appendix contains the following:

1.A certified copy of the [specify petition in underlying case].

2.A certified copy of the Motion to Transfer filed by Relator.

3.A certified copy of the Order Denying Motion to Transfer signed by Respondent.

4.[Include if applicable: A certified copy of the [order/opinion] of the court of appeals.]

5.[Specify other authority or exhibits included.]

In addition, Relator relies on [the clerk’s record/the reporter’s record/the clerk’s record and the reporter’s record] filed in this matter.

Appendix            

This appendix contains the following:

1.[Name and date of order that is the subject of this mandamus].