Opinion
No. 04-04-00834-CV
Delivered and Filed: December 22, 2004.
This proceeding arises out of Cause Nos. 2003-PA-01658 2004-PA-01910, styled In the Interest of J.L., B.G., and S.R., Children, pending in the 45th Judicial District Court, Bexar County, Texas. The Honorable Janet Littlejohn of the 150th Judicial District Court, Bexar County, Texas conducted the hearing and ruled on the motion forming the basis of this mandamus proceeding.
Petition for writ of Mandamus Denied.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
The Texas Department of Family and Protective Services seeks mandamus relief following the trial court's denial of its motion to dismiss. It is relator's contention that the trial court should have granted its motion to dismiss because the real parties in interest, David and Maria Ramirez, lack standing to maintain a suit for adoption of their grandchildren, J.L., B.G., S.R., and A.R. We need not reach this issue in the present case, however, and express no opinion on its ultimate merit. We conclude, instead, that relator is not entitled to mandamus relief because it has an adequate remedy by appeal.
The supreme court has consistently held that an appellate court lacks jurisdiction to issue writs of mandamus to supervise or correct incidental rulings of a trial court when there is an adequate remedy by appeal. See Bell Helicopter Textron, Inc. v. Walker, 787 S.W.2d 954, 955 (Tex. 1990). "`Such incidental rulings include . . . pleas to the jurisdiction, . . . [even if] it might logically be argued that the petitioner for the writ was entitled, as a matter of law, to the action sought to be compelled.'" Id. (quoting Abor v. Black, 695 S.W.2d 564, 566-567 (Tex. 1985)). In light of the precedent regarding incidental rulings of the trial court, we are constrained to hold relator is not entitled to the relief sought. Therefore, relator's petition for writ of mandamus is denied.
DISSENTING OPINION
The majority denies mandamus relief based on its conclusion that direct appeal is generally adequate to resolve a complaint regarding lack of subject matter jurisdiction. Bell Helicopter Textron, Inc. v. Walker, 787 S.W.2d 954, 954-55 (Tex. 1990). The Texas Supreme Court, however, has stated that "[j]ustice demands a speedy resolution of child custody and child support issues." Proffer v. Yates, 734 S.W.2d 671, 673 (Tex. 1987). Where a trial court has improperly asserted jurisdiction over a child custody matter, appellate courts have recognized that mandamus is an appropriate remedy due to the unique and compelling circumstances surrounding such matters. See id. at 672-73 (mandamus is available to compel mandatory transfer in suits affecting the parent-child relationship); In re McCoy, 52 S.W.3d 297, 301 (Tex.App. 2001, orig. proceeding [leave denied]). Even in restating the general rule in Bell Helicopter three years after Proffer, the Texas Supreme Court recognized the exception to this general rule in child custody situations by citing Proffer as supporting a proposition analogous to the contrary of the main proposition. See Bell Helicopter Textron, Inc., 787 S.W.2d at 955 (" but cf. Proffer v. Yates, 734 S.W.2d 671 (Tex. 1987) (mandamus appropriate to direct transfer of child support case because justice demands speedy resolution of such cases)"). Because justice demands a speedy resolution of the child custody issue presented here, I believe mandamus should be available to resolve the relator's jurisdictional complaint. Cf. Proffer v. Yates, 734 S.W.2d 671, 672-73 (Tex. 1987); In re McCoy, 52 S.W.3d 297, 300-02.