                                  NO. 12-13-00342-CV

                        IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

IN RE:                                        §

MICHAEL WAYNE FALKNER,                        §            ORIGINAL PROCEEDING

RELATOR                                      §

                                 MEMORANDUM OPINION
        Relator Michael Wayne Falkner filed a petition for a writ of mandamus directing the trial
court to vacate its November 8, 2013 order transferring an original suit affecting parent-child
relationship. Relator also requests that the trial court be directed to provide him notice of
hearing, an opportunity to be heard, and an opportunity to respond to the motion to transfer. The
respondent is the Honorable Derek C. Flournoy, Judge of the County Court at Law Number 2,
Angelina County, Texas. We conditionally grant mandamus relief.


                                         BACKGROUND
        On October 24, 2013, Relator filed a petition in a suit affecting the parent-child
relationship alleging his child lived in Angelina County. On November 7, 2013, the real party in
interest, Charlotte Mae Pierce (Real Party), filed an original answer and a motion to transfer
venue to Nacogdoches County. She alleged in her motion that “[a]t the time the suit was filed,
the child‟s current residence was in Nacogdoches, Texas.” The record indicates the motion to
transfer was sent to Relator‟s counsel on November 7, 2013. The next day, November 8,
Respondent signed an order transferring the case to Nacogdoches County. Relator then filed this
original proceeding. He also filed a motion for an emergency stay, which we granted until
further order of this court.
                                      PREREQUISITES TO MANDAMUS
        Mandamus will issue only to correct a clear abuse of discretion for which the 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). “A trial court has no „discretion‟ in determining what the law is or
applying the law to the facts,” and “a clear failure by the trial court to analyze or apply the law
correctly will constitute an abuse of discretion.” Walker v. Packer, 827 S.W.2d 833, 840 (Tex.
1992). Transfer procedures under the Texas Family Code are the exclusive mechanism for
transferring suits affecting the parent-child relationship. In re Nabors, 276 S.W.3d 190, 194
(Tex. App.–Houston [14th Dist.] 2009, orig. proceeding).                     While appellate courts will not
generally issue writs of mandamus to correct erroneous venue decisions, they may do so in suits
affecting the parent-child relationship. In re Kramer, 9 S.W.3d 449, 450 (Tex. App.–San
Antonio 1999, orig. proceeding). Therefore, we consider only whether Relator has shown the
trial court abused its discretion.


                                       AVAILABILITY OF MANDAMUS
        Subject to certain exceptions not applicable here, an original suit affecting the
parent-child relationship (SAPCR) must be filed in the county where the child resides. TEX.
FAM. CODE ANN. § 103.001(a) (West 2008). If venue is improper in the court in which an
original SAPCR is filed, the trial court must transfer the suit to a county of proper venue “on the
timely motion of a party other than the petitioner.”                   Id. § 103.002(a) (West 2008).             The
procedures in Texas Family Code Chapter 155 apply to a transfer of an original SAPCR. Id.
§ 103.002(c) (West 2008); see id. §§ 155.001-.301 (West 2008) (Texas Family Code Chapter
155 pertaining to transfers of continuing, exclusive jurisdiction).
        The method and time frame for opposing a motion to transfer an original SAPCR are as
follows:


                  (c) If a timely motion to transfer has been filed and no controverting affidavit is filed
        within the period allowed for its filing, the proceeding shall, not later that the 21st day after the
        final date of the period allowed for the filing of a controverting affidavit, be transferred without a
        hearing to the proper court.

                  (d) On or before the first Monday after the 20th day after the date of notice of a motion to
        transfer is served, a party desiring to contest the motion must file a controverting affidavit denying
        that grounds for the transfer exist.


                                                          2
Id. § 155.204(c), (d) (West 2008).
         Real Party was served with citation in the original SAPCR on November 7, 2013. On the
same date, she filed an original answer and a motion to transfer venue to Nacogdoches County.
The trial court was thus required by statute to allow Relator until December 2, 2013, to file a
controverting affidavit. See id. § 155.204(d); see also In re T.L.B., No. 07-06-00371-CV, 2007
WL 763802, at *2-3 (Tex. App.–Amarillo Mar. 14, 2007, no pet.) (mem. op.) (reversing transfer
order where signed before statutory time frame expired for filing controverting affidavit (section
155.204(d)) and no notice of transfer given (section 155.207(c)). However, on November 8,
2013, the trial court signed an order granting Real Party‟s motion to transfer venue. Because the
trial court did not allow Relator the time prescribed in Section 155.204(d) for filing a
controverting affidavit, its order granting Real Party‟s motion and transferring the case to
Nacogdoches County constitutes an abuse of discretion.


                                                   CONCLUSION
         We have determined the trial court abused its discretion in granting Real Party‟s motion
to transfer venue without affording Relator the opportunity to file a controverting affidavit.
Accordingly, we conditionally grant the petition for writ of mandamus. We direct Respondent
to (1) vacate the November 8, 2013 order granting Real Party‟s motion to transfer venue and
transferring the case to Nacogdoches County and (2) to conduct further proceedings in
compliance with Section 155.204 after giving Relator the time required under the statute for
filing a controverting affidavit calculated from the date Real Party‟s motion was filed, November
7, 2013, excluding the time the instant proceeding has been pending. If Respondent fails to issue
an order vacating the November 8, 2013 order within twenty (20) days of this opinion and order,
we will issue a writ of mandamus.


                                                                JAMES T. WORTHEN
                                                                   Chief Justice

Opinion delivered December 20, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)

                                                           3
                                COURT OF APPEALS
      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                       JUDGMENT

                                     DECEMBER 20, 2013


                                      NO. 12-13-00342-CV


                                  MICHAEL WAYNE FALKNER,
                                            Relator
                                              v.
                                  HON. DEREK C. FLOURNOY,
                                          Respondent


                                   ORIGINAL PROCEEDING


                        ON THIS DAY came to be heard the petition for writ of mandamus filed by
MICHAEL WAYNE FALKNER, who is the relator in Cause No.CV-02730-13-10, pending on the
docket of the County Court at Law #2 of Angelina County, Texas. Said petition for writ of mandamus
having been filed herein on November 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, conditionally
granted.
                        And because it is further the opinion of this Court that the trial judge will act
promptly and issue an order vacating its November 8, 2013 order granting Charlotte Mae Pierce‟s
motion to transfer venue, the writ will not issue unless the Honorable Derek C. Flournoy, Judge of the
County Court at Law #2 of Angelina County, Texas, fails to do so within twenty (20) days from the
date of this order.
                        IT IS FURTHER ORDERED that Respondent shall conduct further proceedings
in compliance with Section 155.204 after giving Relator the time required under the statute for filing a
controverting affidavit calculated from the date Charlotte Mae Pierce‟s motion to transfer venue was
filed, November 7, 2013, excluding the time the instant proceeding has been pending.
                       It is further ORDERED that CHARLOTTE MAE PIERCE pay all costs
incurred by reason of this proceeding.
                       James T. Worthen, Chief Justice.
                  Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                     5
