Opinion
NO. 14-20-00431-CV
08-06-2020
IN RE George Eric SALDANA, Relator
Elsie Martin-Simon, Houston, for Relator. Maria Lowry, Houston, for Real Party in Interest.
Elsie Martin-Simon, Houston, for Relator.
Maria Lowry, Houston, for Real Party in Interest.
Panel consists of Chief Justice Frost and Justices Zimmerer and Poissant.
Margaret "Meg" Poissant, Justice
Relator George Eric Saldana petitioned for a writ of mandamus seeking relief from the ex parte temporary protective order signed by the presiding judge of the 280th District Court of Harris County, the Honorable Barbara Stalder, and the judge's denial of relator's motion to dissolve that order and dismiss the underlying proceeding. See Tex. Gov't Code § 22.221 ; see also Tex. R. App. P. 52. The applicant for the protective order was Diane McManus, the amicus attorney in a suit affecting the parent-child relationship (SAPCR) previously filed in the 257th District Court between relator and his ex-wife. See Tex. Fam. Code § 107.001 –.010 (governing appointment of amicus attorney for child in SAPCR).
With certain exceptions not at issue in this proceeding, to obtain mandamus relief, relator must show both that the trial court clearly abused its discretion and that relator has no adequate remedy by appeal. In re Prudential Ins. Co. of Am. , 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). Relator contends the trial court abused its discretion in two ways.
First, relator argues the trial court lacked authority to sign the order because McManus, as amicus attorney, lacks standing to seek a protective order on behalf of the child. Any adult may apply for a protective order to protect a child from family violence. Tex. Fam. Code § 82.002(c) ; B.C. v. Rhodes , 116 S.W.3d 878, 882–83 (Tex. App.—Austin 2003, no pet.) (holding any adult may apply for a protective order to protect a child from family violence). It is undisputed McManus is an adult.
Second, relator argues the 280th District Court, the protective-order court for Harris County, lacks jurisdiction to issue a protective order in this case because the 257th District Court is the court of continuing, exclusive jurisdiction over the parties to the SAPCR, and issues are pending in the 257th District Court concerning the child, including conservatorship, possession, and access. Presuming the 257th District Court has acquired continuing, exclusive jurisdiction under Family Code section 155.001 as to relator's son, this continuing, exclusive jurisdiction affects jurisdiction in only matters covered by title 5 of the Family Code; it does not affect jurisdiction in protective-order proceedings under Chapter 82 of the Family Code, which falls within title 4 of the Family Code. See Tex. Fam. Code § 82.001 et seq. ; In re Ron , 582 S.W.3d 486, 491–92 (Tex. App.—Houston [14th Dist.] 2018, orig. proceeding [mand. denied] ) ; Copeland v. Copeland , No. 05-18-01431-CV, 2020 WL 4047969, at *1–2 (Tex. App.—Dallas July 20, 2020, no pet. h.) (mem. op.).
Section 85.063(a) of the Family Code states:
(a) If a final order has been rendered in a suit for dissolution of marriage or [SAPCR], an application for a protective order by a party to the suit against another party to the suit filed after the date the final order was rendered, and that is:
(1) filed in the county in which the final order was rendered, shall be filed in the court that rendered the final order; and
(2) filed in another county, shall be filed in a court having jurisdiction to render a protective order under this subtitle.
Tex. Fam. Code § 85.063. Under the unambiguous text of Family Code section 85.063(a), this section addresses the court in which an application for a protective order should be filed; this section does not address which court has jurisdiction to hear or rule upon a protective-order application. See Cooke v. Cooke , 65 S.W.3d 785, 789–90 (Tex. App.—Dallas 2001, no pet.) (holding trial court did not err in denying appellant's motion to dismiss application for protective order on the ground that court in that county that rendered the final divorce decree should hear application rather than protective-order court for that county, to which case had been transferred, because section 85.063(a) concerns the court in which application should be filed , not court in which application should be heard ).
In addition, section 85.063(a) governs applications for protective order by a party to a SAPCR against another party to the SAPCR. McManus is an amicus attorney appointed by the trial court in the SAPCR "whose role is to provide legal services necessary to assist the court in protecting a child's best interests rather than to provide legal services to the child." Tex. Fam. Code § 107.001(1) ; see In re Collins , 242 S.W.3d 837, 842–43 (Tex. App.—Houston [14th Dist.] 2007, orig. proceeding). As an amicus attorney in the SAPCR, McManus is not a party to the SAPCR, so her application for a protective order is not an application for a protective order by a party to the SAPCR. See Tex. Fam. Code § 107.021(a) ("In a case in which the best interests of a child are at issue ... the court may appoint ... (1) an amicus attorney ; (2) an attorney ad litem; or (3) a guardian ad litem.") (emphasis added); id. § 107.021(b) ("In determining whether to make an appointment under this section, the court ... shall ... give due consideration to the ability of the parties to pay reasonable fees to the appointee; and ... balance the child's interests against the cost to the parties that would result from an appointment by taking into consideration the cost of available alternatives for resolving issues without making an appointment....") (emphasis added).
Relator has not established the trial court abused its discretion. For that reason, we need not address whether relator would have an adequate appellate remedy.
We deny the petition for writ of mandamus.