                                    NO. 12-13-00080-CV

                        IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                       TYLER, TEXAS

IN RE:                                        §

SCOTLAND LEE HAMILTON,                        §              ORIGINAL PROCEEDING

RELATOR                                       §

                                    MEMORANDUM OPINION
        Scotland Lee Hamilton, Relator, requests a writ of mandamus directing the trial court to
vacate its order transferring a suit affecting the parent-child relationship from Nacogdoches County,
Texas, to Pettis County, Missouri, and to provide notice of hearing, an opportunity to be heard, and
an opportunity to respond to the motion to transfer. The respondent is the Honorable Edwin A.
Klein, Judge of the 420th Judicial District Court, Nacogdoches County, Texas. We conditionally
grant the petition.


                                    PROCEDURAL BACKGROUND
        Relator is the father of S.H. Respondent signed an order in a suit affecting the parent-child
relationship, dated March 4, 2013, naming Relator as the parent joint managing conservator having
“the exclusive right to designate the primary residence of the child without regard to geographic
location.” On March 7, 2013, the child’s mother, Monica Mendez, filed a motion for new trial, a
motion to modify parent-child relationship, and a motion to transfer. Mendez requested to be
appointed as the person who has the right to designate the primary residency of the child.
Contending that Pettis County, Missouri, is the county of residence of the child, she requested the
court order the transfer of the proceeding. She filed an affidavit in support of relief complaining
that Relator moved “from state to state” and left the child with strangers. On March 8, 2013, “after
considering the pleadings and affidavit” of Mendez, Respondent ordered that the “suit is transferred
to Pettis County, Missouri,” and ordered the district clerk of that county to file and docket the suit.
Relator then filed this original proceeding challenging the trial court’s order transferring the case to
Missouri. He also filed a motion for emergency relief. We granted the motion, and stayed the
proceedings in the trial court until further order of this court.


                                    PREREQUISITES TO MANDAMUS
        Mandamus issues only to correct a clear abuse of discretion or the violation of a duty
imposed by law where there is no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833,
839 (Tex. 1992) (orig. proceeding); Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917
(Tex. 1985) (orig. proceeding). A trial court abuses its discretion if it reaches a decision so arbitrary
and unreasonable that it amounts to a clear and prejudicial error of law or if it clearly fails to
correctly analyze or apply the law. In re Olshan Found. Repair Co., LLC, 328 S.W.3d 883, 888
(Tex. 2010) (orig. proceeding). This standard is satisfied where the trial court effectively deprives
the relator of his fundamental due process right to notice and a hearing. See Union Carbide Corp.
v. Moye, 798 S.W.2d 792, 793 (Tex. 1990) (orig. proceeding). Mandamus is properly employed to
review the determination of a motion to transfer. See TEX. FAM. CODE ANN. § 155.204(h) (West
2008) (order transferring or refusing intrastate transfer of suit affecting parent-child relationship is
not subject to interlocutory appeal); see also TEX. R. CIV. P. 87(6) (determination of a motion to
transfer is not subject to interlocutory appeal). The relator bears the burden of establishing his
entitlement to mandamus relief. In re Acceptance Ins. Co., 33 S.W.3d 443, 448 (Tex. App.–Fort
Worth 2000, orig. proceeding).


                                         MOTION TO TRANSFER
        Because the trial court previously made a custody determination in Relator’s suit affecting
the parent-child relationship, the trial court had exclusive continuing jurisdiction. See TEX. FAM.
CODE ANN. § 152.202 (West 2008). Mendez filed her motion to transfer at the same time she filed
her motion to modify the parent-child relationship. Before a child custody determination is made
under the Uniform Child Custody Jurisdiction and Enforcement Act, notice and an opportunity to be
heard must be given to all persons entitled to notice under the law of this state. See TEX. FAM.
CODE ANN. § 152.205(a) (West 2008). Mendez’s attorney certified that the motions to modify and
transfer were served on Relator’s attorney of record on March 7, 2013, in accordance with the
Texas Rules of Civil Procedure. See TEX. R. CIV. P. 21a. He also requested a hearing date of
March 20, 2013. The rules of civil procedure provide that, except on leave of court, each party is
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entitled to at least forty-five days’ notice of a hearing on a motion to transfer and any response or
opposing affidavits must be filed at least thirty days prior to the hearing. TEX. R. CIV. P. 87(1).
Likewise, in cases involving motions for intrastate transfers, the Texas Family Code specifies a
scheme providing for due process. See TEX. FAM. CODE ANN. § 155.204 (West 2008).
         Here, the motion to transfer was filed on March 7, 2013, alleging that one or more of the
parties, and the child affected by the proceedings, no longer resides in Nacogdoches County. It is
supported by evidence indicating that the child has lived in Missouri for approximately ten months.
The certificate of service shows the motion was served on Relator’s attorney of record on March 7,
2013. However, the trial court granted the motion on March 8, 2013, thereby depriving Relator of
the opportunity to respond.
         It is an abuse of discretion, correctable by mandamus, for a trial court to rule on a motion to
transfer without giving the parties the notice required by the rules. See HCA Health Servs. of Tex.,
Inc. v. Salinas, 838 S.W.2d 246, 247-48 (Tex. 1992) (orig. proceeding). Nothing before us reflects
a viable reason for the court’s failure to provide Relator the notice and hearing contemplated by the
laws of this state. We therefore conclude that the trial court clearly abused its discretion.


                                                     DISPOSITION
         Having concluded that the trial court clearly abused its discretion by granting Mendez’s
motion to transfer and that Relator does not have an adequate remedy by appeal, we conditionally
grant mandamus relief. We trust the trial court will promptly (1) vacate its order of March 8, 2013,
transferring the suit to Pettis County, Missouri, and ordering the district clerk in that county to file
and docket the suit in the appropriate court, (2) provide Relator time to respond to the motion, and
(3) provide notice and a hearing in compliance with state law. The writ will issue only if the trial
court fails to comply with the court’s opinion and order within ten (10) days after the date of the
opinion and order. The trial court shall furnish this court, within the time for compliance with the
court’s opinion and order, a certified copy of its order evidencing such compliance. Our stay of the
trial court’s order issued May 21, 2013, is lifted.
                                                                    SAM GRIFFITH
                                                                       Justice
Opinion delivered June 5, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.


                                                      (PUBLISH)

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                                 COURT OF APPEALS
      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                            ORDER

                                          JUNE 5, 2013


                                      NO. 12-13-00080-CV


                                SCOTLAND LEE HAMILTON,
                                          Relator
                                            v.
                                  HON. EDWIN A. KLEIN,
                                        Respondent




                                    ORIGINAL PROCEEDING


                       ON THIS DAY came to be heard the petition for writ of mandamus filed
by SCOTLAND LEE HAMILTON, who is the relator in Cause No.C1227987, pending on the
docket of the 420th Judicial District Court of Nacogdoches County, Texas. Said petition for writ
of mandamus having been filed herein on March 15, 2013, and the same having been duly
considered, because it is the opinion of this Court that the petition is meritorious, it is therefore
CONSIDERED, ADJUDGED and ORDERED that the said petition for writ of mandamus be,
and the same is, hereby conditionally granted.
                       And because it is further the opinion of this court that the trial judge will
act promptly and (1) vacate its order of March 8, 2013, transferring the suit to Pettis County,
Missouri, and ordering the district clerk in that county to file and docket the suit in the
appropriate court, (2) provide Relator time to respond to the motion, and (3) provide notice and a
hearing in compliance with the statute, the writ will not issue unless the Honorable Edwin A.
Klein, Judge of the 420th of Nacogdoches county fails to comply with this court’s order within
ten (10) days from the date of this order.
                       It is further ORDERED that MONICA CANDACE MENDEZ pay all
costs incurred by reason of this proceeding.
                       Sam Griffith, Justice.
                       Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




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