                                                  OPINION
                                             No. 04-11-00641-CV

                                        IN RE Michelle CHESTER

                                      Original Mandamus Proceeding 1

Opinion by: Marialyn Barnard, Justice
Concurring Opinion by: Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: October 12, 2011

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

           On September 1, 2011, relator Michelle Chester filed a petition for writ of mandamus,

complaining the trial court abused its discretion in modifying the existing temporary orders in a

modification of a suit affecting the parent-child relationship without notice and a hearing. We

agree and conditionally grant the petition for writ of mandamus.

                                               BACKGROUND

           In April of 2009, an agreed order for grandparent access was entered giving paternal

grandmother Arabela Teltschick access to K.R.A., the child the subject of the suit. In October of

2009, Nicole Perez, mother of K.R.A., was arrested for driving while intoxicated while K.R.A.

1
  This proceeding arises out of Cause No. 2008-CI-09633, styled In the Interest of K.R.A., A Minor Child, pending in
the 225th Judicial District Court, Bexar County, Texas, the Honorable Peter Sakai presiding. However, the order
complained of was signed by the Honorable Antonia Arteaga, presiding judge of the 57th Judicial District Court,
Bexar County, Texas, who is the respondent.
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was in the vehicle.    Shortly thereafter, Arabela filed a petition to modify the parent-child

relationship in the same cause number as the grandparent access suit. Judge Karen Pozza

granted a temporary restraining order for the protection of the child, and, pending further

temporary orders, appointed Arabela and Nicole temporary joint managing conservators of the

child, with Arabela having the exclusive right to designate the primary residence of the child. In

January of 2010, the trial court held a temporary orders hearing, at which maternal grandmother

Margaret Perez and paternal aunt Michelle Chester intervened in the suit. Nicole verbally

objected to Michelle’s intervention based on standing, but Judge Arteaga found that Michelle

had standing to intervene. At the hearing, Judge Arteaga appointed Nicole, Margaret, and

Michelle as joint temporary managing conservators, with Michelle having the exclusive right to

designate the primary residence of K.R.A. and Nicole was given supervised visitation with the

child. On March 3, 2010, Judge Arteaga signed temporary orders providing the same. K.R.A.

remained living with Michelle until August 30, 2011.

       On January 8, 2010, Nicole filed a motion to strike Michelle’s plea in intervention, which

again was denied by Judge Arteaga. More than a year later, in February of 2011, Nicole filed a

petition for writ of mandamus in this court, challenging Michelle’s standing. See In re Perez,

Cause No. 04-11-00134-CV, 2011 WL 1900385 (Tex. App.—San Antonio May 11, 2011, orig.

proceeding [mand. denied]) (mem. op.). While the petition was pending in this court, Judge

Arteaga determined Michelle lacked standing and set aside her previous order denying Nicole’s

motion to strike Michelle’s plea in intervention. However, Judge Arteaga vacated the order two

days after signing it. This court subsequently denied the mandamus. Id. Nicole then sought the

same relief in the Texas Supreme Court, which was also subsequently denied. Id.




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       On July 19, 2011, Nicole filed a Motion for Reconsideration of Motion to Strike Plea in

Intervention in the trial court, once again challenging Michelle’s standing. This was the only

motion set before the trial court at the hearing scheduled on August 30, 2011. Nicole, Margaret,

and Michelle attended the hearing, but the record does not reflect whether Arabela was in

attendance. Prior to considering Nicole’s motion for reconsideration, Judge Arteaga informed

the parties that she was considering sua sponte whether to modify the temporary orders. Judge

Arteaga told the parties: “This is actually my motion for temporary orders and would you agree

or disagree that at any time the Court can modify, change in any way - - rearrange the temporary

orders that are now in place?” Judge Arteaga further provided: “And, respectfully, nobody knew

what I was thinking, nobody knew what I was going to be doing, but here are my concerns. . . .”

Michelle’s counsel objected to the lack of notice regarding a modification of the temporary

orders. Nicole and Michelle were called to the stand and questioned by Judge Arteaga, but

neither was questioned by either party’s counsel.

       At the conclusion of the hearing, Judge Arteaga did not rule on Nicole’s motion to

reconsider the motion to strike the plea in intervention for which the hearing was originally set.

Instead, Judge Arteaga modified the March 2010 temporary orders by revoking Michelle’s right

to designate the primary residence of the child, giving Margaret, whom Nicole lives with, such

right, and ordering that K.R.A. be immediately picked up at her elementary school in Austin and

taken back to San Antonio without contact with Michelle. The order did not grant Michelle any

visitation rights with K.R.A. Michelle requested a stay of the temporary orders pending the

filing of a petition for writ of mandamus in this court, which Judge Arteaga denied. This petition

was subsequently filed along with a motion for emergency stay, which was granted by this court.




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                                           ANALYSIS

I.       Standard of Review

         Mandamus will issue only to correct a clear abuse of discretion for which the relator has

no adequate remedy at law. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004)

(orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (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, 827 S.W.2d at 840. Because temporary orders in suits affecting

the parent-child relationship are not appealable, mandamus is an appropriate remedy when a trial

court abuses its discretion. See Dancy v. Daggett, 815 S.W.2d 548, 549 (Tex. 1991) (orig.

proceeding); In re Herring, 221 S.W.3d 729, 730 (Tex. App.—San Antonio 2007, orig.

proceeding).

II.      Notice

         In this proceeding, Michelle contends the trial court abused its discretion by sua sponte

modifying the March 2010 temporary orders without notice and a hearing. Because of the lack

of notice, Michelle asserts a full adversary hearing was not conducted allowing Michelle to

present any evidence that could be considered when making a determination as to an appropriate

order for the safety and welfare of the child or any evidence to rebut Nicole’s testimony in

response to Judge Arteaga’s questioning. Id.

         In a suit affecting the parent-child relationship, the trial court may make a temporary

order for the safety and welfare of the child, including an order modifying a prior temporary

order.    TEX. FAM. CODE ANN. § 105.001(a) (West 2008).              A temporary order for the




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conservatorship of the child may not be rendered without notice and a hearing. TEX. FAM. CODE

ANN. § 105.001(a), (b), (h); Herring, 221 S.W.3d at 730.

       The challenged order in the underlying proceeding is an order modifying a prior

temporary order. See TEX. FAM. CODE ANN. § 105.001(a). Therefore, Michelle was entitled to

notice and an adversary hearing before the entry of a new temporary order modifying the custody

of K.R.A. See TEX. FAM. CODE ANN. § 105.001(a), (b), (h); Herring, 221 S.W.3d at 730. The

parties agree that the only motion set for the hearing on August 30, 2011 was the reconsideration

of the motion to strike Michelle’s plea in intervention. Nicole did not file and serve on Michelle

any pleading asking the court to give her temporary custody. Also, there is nothing in the record

suggesting the new temporary order was prompted by an emergency.

       However, Nicole and Judge Arteaga each contend in their responses to this court that

because Michelle’s motion for reconsideration of the motion to strike Michelle’s plea in

intervention was set for a hearing, Michelle was on notice that the temporary orders could be

modified, and, therefore, she should have been prepared for such a hearing. However, notice of

the motion for reconsideration of the motion to strike Michelle’s plea in intervention did not

confer on Michelle notice of the modification of temporary orders.          First, the motion to

reconsider was not ruled on at the hearing; therefore, there was no immediate reason to enter new

temporary orders removing K.R.A. from Michelle’s home. Also, even if the trial court had

granted the motion for reconsideration and struck Michelle’s plea in intervention, she would not

be testifying or seeking any relief in the form of a modified temporary order because she would

no longer be a party to the case. Therefore, she would have no reason to object to the lack of

notice. Based on the foregoing, we do not find merit to Nicole and Judge Arteaga’s argument

that by virtue of the motion to reconsider the motion to strike Michelle’s intervention pending



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before the trial court that Michelle was on notice that a modification of the temporary orders was

before the trial court.

        Judge Arteaga further contends Michelle failed to preserve her complaint because her

conclusory and general statement that she needed more time and would like to call witnesses was

insufficient to put the trial court in the position of having adequate facts to address relator’s

complaint. However, the record clearly reveals Michelle objected to the lack of notice and

hearing regarding the temporary orders. When Judge Arteaga first informed the parties she

would be considering sua sponte whether to modify the temporary orders, Michelle’s counsel

responded, “Judge, there’s no motion for temporary orders on file. We have no notice and that

would be a very real violation to my client’s right to due process - - to conduct a temporary

orders hearing today. . . . There’s nothing in there about temporary orders. We’re not ready for

that. . . .We are not prepared to proceed on that today.” Counsel later reiterated, “We are not

ready. We have received no notice. We have no witnesses.” Clearly, the record reveals

Michelle objected to the lack of notice and a proper hearing regarding the modification of

temporary orders.

        Finally, Judge Arteaga contends Michelle was afforded the opportunity to present

evidence, and chose not to. However, without having notice that the existing temporary orders

would be modified, Michelle was clearly not prepared to present such evidence regarding the

safety and welfare of the child and to rebut Nicole’s testimony in response to Judge Arteaga’s

questions. See TEX. FAM. CODE ANN. § 105.001(a), (b).

        As a result of the foregoing, we conclude the trial court abused its discretion in failing to

provide Michelle with notice prior to modifying the existing temporary orders. See TEX. FAM.




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CODE ANN. § 105.001(a), (b), (h); Herring, 221 S.W.3d at 730. Accordingly, we do not find it

necessary to address Michelle’s remaining issues presented to this court.

                                         CONCLUSION

       Based on the foregoing analysis, we hold the trial court clearly abused its discretion in

modifying the existing temporary orders without notice and a hearing.          Accordingly, we

conditionally grant the petition for writ of mandamus. The trial court is ordered to withdraw the

August 30, 2011 order modifying the existing temporary orders. The writ will issue only if the

trial court fails to comply within fourteen days.

                                                            Marialyn Barnard, Justice




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