                                  IN THE
                          TENTH COURT OF APPEALS



                                 No. 10-14-00076-CV

                    IN RE TIMOTHY BRENT CLAIBORNE


                                 Original Proceeding



                           MEMORANDUM OPINION

       Timothy Brent Claiborne filed a petition for writ of mandamus requesting this

Court to compel the Honorable Judge William Bosworth, the judge of the 413th District

Court of Johnson County, to vacate the order denying Claiborne’s motion to transfer

venue. We conditionally grant the writ.

                                   Standard of Review

       A writ of mandamus properly issues when the relator demonstrates that the trial

court abused its discretion and there is no adequate remedy by appeal. In re Gulf

Exploration, LLC, 289 S.W.3d 836, 842 (Tex.2009). A trial court abuses its discretion if it

reaches a decision so arbitrary and unreasonable as to constitute a clear and prejudicial

error of law, or if it clearly fails to correctly analyze or apply the law.   In re Cerberus
Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex.2005); Walker v. Packer, 827 S.W.2d 833, 839

(Tex.1992).

                                     Background Facts

        The trial court entered a final decree of divorce between Timothy Claiborne and

Ruby Claiborne on July 11, 2008.         From 2008 to the present, the trial court has

considered numerous motions to modify and motions for enforcement filed by the

parties. On October 4, 2013, Timothy filed a motion to modify and a motion to transfer

venue. On October 28, 2013, Ruby filed an affidavit controverting the motion to transfer

venue, and she also filed a motion for enforcement.

                                    Motion to Transfer

        Timothy argues that the trial court erred in denying the motion to transfer venue

and that the trial court abused its discretion in failing to conduct a hearing on the facts

raised in the controverting affidavit.       The Texas Family Code provides for the

mandatory transfer of venue:

               (a) On the filing of a motion showing that a suit for dissolution of
        the marriage of the child's parents has been filed in another court and
        requesting a transfer to that court, the court having continuing, exclusive
        jurisdiction of a suit affecting the parent-child relationship shall, within
        the time required by Section 155.204, transfer the proceedings to the court
        in which the dissolution of the marriage is pending. The motion must
        comply with the requirements of Section 155.204(a).

               (b) If a suit to modify or a motion to enforce an order is filed in the
        court having continuing, exclusive jurisdiction of a suit, on the timely
        motion of a party the court shall, within the time required by Section 155.
        204, transfer the proceeding to another county in this state if the child has
        resided in the other county for six months or longer.




In re Claiborne                                                                          Page 2
               (c) If a suit to modify or a motion to enforce an order is pending at
        the time a subsequent suit to modify or motion to enforce is filed, the
        court may transfer the proceeding as provided by Subsection (b) only if
        the court could have transferred the proceeding at the time the first
        motion or suit was filed.

TEX. FAMILY CODE ANN. § 155.201 (West 2014). In the motion to transfer venue, Timothy

alleges that the child has resided in Tarrant County during the six-month period

preceding the commencement of the suit and that venue is proper in Tarrant County

pursuant to Section 155.201.

        Ruby filed a controverting affidavit contesting the motion to transfer venue

stating that her residence is on “the border of Tarrant and Johnson counties.” If a

controverting affidavit is filed contesting the motion to transfer, the trial court is

required to hold hearing on the motion. See TEX. FAM. CODE ANN. § 155.204(e) (West

2014). Only evidence pertaining to the transfer may be taken at the hearing. TEX. FAM.

CODE ANN. § 155.204(f) (West 2014).

        On January 22, 2014, the trial court considered the motion to transfer venue filed

by Timothy as well as other motions filed by Ruby. The record indicates that the trial

court denied the motion to transfer venue without hearing evidence pertaining to the

motion. The trial court did not hear any evidence concerning the residence of the child

or concerning the facts alleged in the controverting affidavit before denying the motion

to transfer venue. The trial court abused its discretion in failing to conduct a hearing to

consider evidence relating to the motion to transfer venue. An order transferring or

refusing to transfer the proceeding is not subject to an interlocutory appeal. TEX. FAM.




In re Claiborne                                                                        Page 3
CODE ANN. § 155.204(h) (West 2014). Therefore, Timothy has no adequate remedy by

appeal.

                                              Conclusion

        We conditionally grant Timothy Claiborne’s writ of mandamus and direct the

trial court to vacate the order denying Claiborne’s motion to transfer venue and to

conduct a hearing to receive evidence pertaining to the motion to transfer venue. The

writ will issue only if the trial court fails to do so.



                                                 AL SCOGGINS
                                                 Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Writ conditionally granted
Opinion delivered and filed May 8, 2014
[OT06]




In re Claiborne                                                                Page 4
