









Motion for Rehearing Granted; Petition for Writ of Mandamus Denied,
Memorandum Opinion of March 20, 2006 Withdrawn, and Substituted Memorandum
Opinion filed May 4, 2006








 
Motion for Rehearing Granted; Petition for Writ of
Mandamus Denied, Memorandum Opinion of March 20, 2006 Withdrawn, and
Substituted Memorandum Opinion filed May 4, 2006.
 
In The
 
Fourteenth Court of Appeals
____________
 
NO. 14-06-00188-CV
____________
 
IN RE TALIS LEE RANDE DELANEY, Relator
 
 

 
ORIGINAL
PROCEEDING
WRIT
OF MANDAMUS
 

 
S U B S T I T U T E D 
M E M O R A N D U M  O P I N I O N
On March 20, 2006, we issued a memorandum opinion denying
relator=s petition for writ of
mandamus because the petition did not comply with the Rules of Appellate
Procedure.  Relator filed a timely motion
for rehearing.  We grant the motion for
rehearing, but after reviewing relator=s petition on its merits, we deny
relator=s request for mandamus relief.  We withdraw our previous memorandum opinion
of March 20, 2006, and issue this substituted memorandum opinion in its place.[1]     




Following a hearing on February 6, 2006, the trial court
signed temporary orders designating real party Thomas Olivarez as primary
conservator of the couple=s child.  In her
mandamus petition, relator Talis Lee Rande Delaney challenges the trial court=s temporary orders as an abuse
discretion claiming there was no evidence before the court to support the
change of conservatorship and she did not receive the notice of the hearing as
required under section 105.001(b) of the Family Code.  See Tex.
Fam. Code Ann. ' 105.001(b) (Vernon Supp. 2005).  However, pending before the trial court at
the time of the February 6 hearing was an affidavit of selection of managing
conservator and a motion to confer with the child.  See Boriack v. Boriack, 54 S.W.2d 237,
239 (Tex. App.CCorpus Christi 1976, writ dism=d) (stating affidavit of selection
was intended by the Legislature to be received and considered as
evidence).  Relator filed a motion in
opposition to the affidavit of selection, and she appeared at and participated
in the February 6 hearing.  See Werner
v. Colwell, 909 S.W.2d 866, 869B70 (Tex. 1994).  Therefore, relator has failed to establish
she is entitled to the requested relief and, accordingly, we deny relator=s petition for writ of mandamus. 
 
PER CURIAM
 
Petition Denied
and Substituted Memorandum Opinion filed May 4, 2006.
Panel consists of
Justices Hudson, Fowler, and Seymore




            [1]Because
the dispositive issues are clearly settled in law, we issue this substituted
memorandum opinion pursuant to rule 52.8(d) of the Texas Rules of Appellate
Procedure. See Tex. R. App. P. 52.8(d).   


