Opinion
No. 05-07-00879-CV
Opinion issued August 8, 2007.
Original Proceeding from the 354th Judicial District Court Hunt County, Texas Trial Court Cause No. 71,657.
Before Justices MORRIS, RICHTER, and MAZZANT.
Opinion by Justice MORRIS.
MEMORANDUM OPINION
In this original proceeding, relators contend the trial court failed to hear a timely-filed appeal of a ruling on temporary orders by the associate judge in a parental rights termination case. The facts are known to the parties so we do not recite them here in detail. Further, because all dispositive issues are clearly settled in law, we issue this memorandum opinion and order pursuant to rules 47.4 and 52.8(d) of the Texas Rules of Appellate Procedure.
In this suit affecting a parent-child relationship, on May 11, 2007, an associate judge held a hearing under the family code relating to the appointment of temporary managing conservatorship for the two children involved in the parental rights termination case and other related issues. The associate judge signed a temporary order on May 25, 2007, which contained findings of fact. Relator Laura Jones filed a timely notice of appeal of the associate judge's ruling on May 11, 2007. See Tex. Fam. Code Ann. § 201.015(a) (Vernon 2002). On May 18, 2007, relators Eldon and Mary Gordon mailed a notice of appeal of the associate judge's ruling, which was timely filed on May 21, 2007. See Tex. Fam. Code Ann. § 201.015(e) (Vernon 2002); Tex. R. Civ. P. 5. The relators' notices of appeal included their objections to the associate judge's findings and rulings. See Tex. Fam. Code Ann. § 201.015(b) (Vernon 2002). In this case, the trial court's clerk returned the Gordons' notice of appeal with a notation that the trial court said the temporary order could not be appealed. Relators and real party state that the trial court has not heard the appeal.
We note that many of relator Jones's objections appear not to be directed to any specific findings made by the associate judge.
Family code section 201.015 prescribes an appeal to a referring court. See Tex. Fam. Code Ann. § 201.015 (Vernon 2002). Family code section 201.015(b) states: "An appeal to the referring court must be in writing specifying the findings and conclusions of the associate judge to which the party objects. The appeal is limited to the specified findings and conclusions." Tex. Fam. Code Ann. § 201.015(b) (Vernon 2002). Additionally, family code section 201.015(f) states: "The referring court, after notice to the parties, shall hold a hearing on all appeals not later than the 30th day after the date on which the initial appeal was filed with the referring court." Tex. Fam. Code Ann. § 201.015(f) (Vernon 2002).
A party who timely appeals under section 201.015 is entitled to a hearing de novo before the referring court. Fountain v. Knebel, 45 S.W.3d 736, 739 (Tex.App.-Dallas 2001, no pet.). Section 201.015 requires the referring court to hold a hearing on the appeal within thirty days. Id. The thirty-day provision affords a party the right to compel the referring court to hear the case promptly. Id. Once a party has filed a notice of appeal to the referring court, the party has completed the prerequisites necessary to be entitled to a de novo hearing. Id.
In this case, the trial court apparently construed section 201.015(a) not to include appeals of an associate judge's signed temporary order. It is not necessary for us to reach that narrow issue here because, regardless, an associate judge's findings and conclusions, by virtue of section 201.015(b), are the subject of an appeal when a party properly objects to those findings and conclusions. As mentioned, the associate judge included findings in her temporary order, and the parties objected sufficiently to invoke section 201.015(b).
Mandamus relief is available when, under the circumstances of the case, the facts and the law permit the trial court to make but one decision, which the court has refused to do, and for which there is no remedy by appeal. Proffer v. Yates, 734 S.W.2d 671, 673 (Tex. 1987); Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985). In this case, a hearing within 30 days of the relators' notices of appeal is mandatory, and an appellate remedy is inadequate to protect this time designated right. The trial court failed to take action on the pending notices of appeal. Accordingly, we conditionally grant the relators' petition for writ of mandamus. A writ will issue only in the event trial judge fails to hold a hearing in compliance with family code section 201.015.