Opinion
No. 05-06-01107-CV
Opinion issued September 12, 2006.
Original Proceeding from the 304th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 94-860.
Writ of Mandamus Granted.
Before Justices MORRIS, WHITTINGTON, and RICHTER.
MEMORANDUM OPINION
In this mandamus proceeding, relators contend the trial court failed to order the mandatory transfer of a suit affecting parent-child relationship (SAPCR) to the county wherein the child has resided since 2003. The facts of this original proceeding 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 rule 52.8(d) of the Texas Rules of Appellate Procedure. See Tex.R.App.P. 52.8(d).
In this SAPCR, in 2004, the trial court ordered that the child be placed in the custody of relators Willie Wilson and Betty Wilson. In March 2006, Paul Wilson, the real party in interest, filed a petition to invalidate the prior order asking that custody of the child be returned to him. Relators were formally served with the petition on May 11, 2006. On May 18, 2006, the relators filed a motion to modify and enforce child support order and a motion to transfer the case to Grayson County because the child has resided in Grayson County since October 2003. No party filed any controverting affidavits.
Family code section 155.204(c) provides that if a timely motion to transfer has been filed and no controverting affidavit has been filed within the period allowed, the proceeding will be transferred without a hearing to the proper court. See Tex. Fam. Code Ann. § 155.204(c) (Vernon Supp. 2006). In this case, the trial court has not transferred the case to the proper court in Grayson County, within the time prescribed. Id. Instead, it set a September 7, 2006 hearing on real party's petition to invalidate and a motion to transfer the case to an Indian tribal court in Maine.
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, transfer of the case to Grayson County without a hearing is mandatory. See Tex. Fam. Code Ann. § 155.204(c) (Vernon Supp. 2006). Remedy by direct appeal is inadequate to protect the rights of both parents and children. See Proffer, 734 S.W.2d at 673. The trial court failed to take action on the pending motion for mandatory transfer. Accordingly, we conditionally grant the relators' petition for writ of mandamus. See In re Simonek, 3 S.W.3d 285, 287-9 (Tex.App.-Waco 1999, orig. proceeding). A writ will issue only in the event respondent fails to transfer the proceeding in accordance with this opinion.