                               Fourth Court of Appeals
                                      San Antonio, Texas

                                                 OPINION
                                          No. 04-19-00334-CV

                                          IN RE Jamie BRICE

                                    Original Mandamus Proceeding 1

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice
                  Liza A. Rodriguez, Justice

Delivered and Filed: August 7, 2019

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

           In this original proceeding, Relator J.B. (Mom) seeks a petition for writ of mandamus to

direct Respondent, the Honorable Ron Carr, to grant her plea to the jurisdiction and dismiss a

SAPCR filed by Real Party in Interest P.S. (Step-Mom).

           Because Step-Mom failed to show that she has standing under section 102.003 of the

Family Code, we will conditionally grant the petition for writ of mandamus.

                                              BACKGROUND

           When Mom was married to R.S. (Dad), she gave birth to two children. After Mom and

Dad divorced, Dad married P.S., who became the children’s step-mother. Following a motor

vehicle accident, Dad died on January 31, 2019.


1
 This proceeding arises out of Cause No. 2019-3513-DC, styled In the Interest of K.M.S. and B.D.S., Children,
pending in the 38th Judicial District Court, Real County, Texas, the Honorable Ron Carr presiding.
                                                                                                        04-19-00334-CV


           On March 15, 2019, Step-Mom filed an original petition in a suit affecting the parent-child

relationship (SAPCR) seeking possession of, and access to, the two children. In her original

petition, Step-Mom alleged she and Dad married on December 15, 2014, and, since that date, she

“actively and consistently participated in the children’s lives, attending various school and

extracurricular activities, spending a significant amount of time with the children both with and

without their father’s presence.”

           Mom filed a plea to the jurisdiction arguing Step-Mom did not have standing, and the trial

court held a hearing on the plea.

           At the hearing, 2 Step-Mom testified the children had their own bedroom and bathroom in

her house, and their own clothes, beds, toys, and bicycles. On the weekends that Dad had

visitation, either Step-Mom or Dad would pick the children up from school on Friday and bring

them to her house where she, Dad, and the children would have dinner. The children spent their

visitation weekends (the first, third, and fifth weekends) 3 with Step-Mom and Dad beginning on

December 15, 2014. Step-Mom and Dad briefly separated in January and February 2018 during

which time Dad lived at his mother’s house and the children visited with Dad there. Visitation

resumed with Step-Mom and Dad from April 2018 to January 31, 2019, the date of Dad’s death.

           Mom testified that on some of Dad’s weekends, Dad would pick up the children from

school and take them to his mother’s house and visit with them there. During the summer, Dad

would sometimes pick up the children a few days earlier than the Friday of his visitation weekend.

           The trial court denied Mom’s plea to the jurisdiction and signed temporary orders granting

Step-Mom possession of, and access to, the children.




2
    At the time of the hearing, the oldest child was twelve years old, and the other was eight years old.
3
    According to Mom, the divorce decree specifies visitation as every other weekend.


                                                            -2-
                                                                                       04-19-00334-CV


       On May 21, 2019, Mom filed a petition for writ of mandamus and an emergency motion

to stay the temporary orders. After we stayed the temporary orders, Step-Mom filed a response,

Mom filed a reply, and Step-Mom filed a sur-response.

       Having considered the petition, response, reply, and sur-response, we conclude Mom is

entitled to the requested relief because Step-Mom lacks standing.

                                             STANDING

       “The question of who has standing to bring an original suit affecting the parent-child

relationship . . . is a threshold issue.” In re Y.B., 300 S.W.3d 1, 4 (Tex. App.—San Antonio 2009,

pet. denied); accord Jasek v. Tex. Dep’t of Family & Protective Servs., 348 S.W.3d 523, 527 (Tex.

App.—Austin 2011, no pet.). “‘Without standing, a court lacks subject matter jurisdiction’ over

the case, and the merits of the plaintiff’s claims thus cannot be litigated or decided.” In re H.S.,

550 S.W.3d 151, 155 (Tex. 2018) (quoting Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845,

849 (Tex. 2005)).

       “[S]tanding to bring a SAPCR is governed by statute . . . .” Id. “[A] party bringing a

SAPCR must plead and establish standing under the [F]amily [C]ode’s provisions.” In re I.I.G.T.,

412 S.W.3d 803, 806 (Tex. App.—Dallas 2013, no pet.) (citing In re M.K.S.-V., 301 S.W.3d 460,

464 (Tex. App.—Dallas 2009, pet. denied)).

A.     Standing by Actual Care, Control, Possession

       A person has standing under section 102.003(a)(9) to bring a SAPCR if “a person, other

than a foster parent, . . . has had actual care, control, and possession of the child for at least six

months ending not more than 90 days preceding the date of the filing of the petition.” TEX. FAM.

CODE ANN. § 102.003(a)(9). “The purpose of section 102.003(a)(9) is to create standing for those

who have developed and maintained a relationship with a child over time.” In re A.C.F.H., 373

S.W.3d 148, 150 (Tex. App.—San Antonio 2012, no pet.).


                                                 -3-
                                                                                         04-19-00334-CV


B.      Standing by Residing with Child

        A person has standing under section 102.003(a)(11) to bring a SAPCR if the child and the

parent “have resided” with the person “for at least six months ending not more than 90 days

preceding the date of the filing of the petition if the [children’s] . . . parent is deceased at the time

of the filing of the petition.” TEX. FAM. CODE ANN. § 102.003(a)(11). “Subsection (a)(11) was

designed as a ‘stepparent’ statute, affording standing to a stepparent who has helped raise a child

and the stepparent’s spouse (the child’s parent) dies.” In re Lankford, 501 S.W.3d 681, 689–90

(Tex. App.—Tyler 2016, orig. proceeding). The phrase “have resided” in section 102.003(a)(11)

means “living together in the same household.” Tex. Dep’t of Protective & Regulatory Servs. v.

Sherry, 46 S.W.3d 857, 861 (Tex. 2001).

C.      Child’s Principal Residence

        “‘In computing the time necessary for standing’ under [either subsection (a)(9) or (a)(11)],

courts ‘shall consider the child’s principal residence during the relevant time.’” In re H.S., 550

S.W.3d at 156 (quoting TEX. FAM. CODE ANN. § 102.003(b) (emphasis added)). “Courts should

determine a child’s principal residence by looking at the following factors: (1) whether the child

has a fixed place of abode within the possession of the party, (2) occupied or intended to be

occupied consistently over a substantial period of time, and (3) which is permanent rather than

temporary.” In re Kelso, 266 S.W.3d 586, 590 (Tex. App.—Fort Worth 2008, no pet.) (citing In

re M.P.B., 257 S.W.3d 804, 809 (Tex. App.—Dallas 2008, no pet.)); Doncer v. Dickerson, 81

S.W.3d 349, 361 (Tex. App.—El Paso 2002, no pet.).

D.      Evidentiary Burden, Evaluation

        The plaintiff has the burden to allege facts demonstrating standing. See Jasek, 348 S.W.3d

at 528; In re Y.B., 300 S.W.3d at 4. “In evaluating standing, we construe the pleadings in the

plaintiff’s favor, but we also consider relevant evidence offered by the parties.” In re H.S., 550


                                                  -4-
                                                                                        04-19-00334-CV


S.W.3d at 155; accord Jasek, 348 S.W.3d at 528. “[I]f a plea to the jurisdiction challenges the

existence of jurisdictional facts, we consider relevant evidence submitted by the parties when

necessary to resolve the jurisdictional issues raised, as the trial court is required to do.” Tex. Dep’t

of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004); accord Y.B., 300 S.W.3d at 4.

“[I]f the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue,

the trial court rules on the plea to the jurisdiction as a matter of law.” Miranda, 133 S.W.3d at

228; accord In re Y.B., 300 S.W.3d at 4.

E.      Standard of Review

        “Whether a pleader has alleged facts that affirmatively demonstrate a trial court’s subject

matter jurisdiction is a question of law reviewed de novo.” Miranda, 133 S.W.3d at 226; see In re

H.S., 550 S.W.3d at 155.        “Likewise, whether undisputed evidence of jurisdictional facts

establishes a trial court’s jurisdiction is also a question of law.” Miranda, 133 S.W.3d at 226;

accord In re Y.B., 300 S.W.3d at 4.

                                             DISCUSSION

A.      Step-Mom’s Arguments

        In her original petition, Step-Mom claimed standing under Family Code section

102.003(a)(11). See TEX. FAM. CODE ANN. § 102.003(a)(11). In her response to Mom’s petition

for writ of mandamus, Step-Mom asserts the record shows she was asserting standing under section

102.003(a)(9). See id. § 102.003(a)(9). Step-Mom contends that because Mom did not challenge

Step-Mom’s standing under subsection (a)(9), Mom’s petition must be denied.

        Alternatively, Step-Mom asserts she produced evidence of her standing under either

subsection (a)(9) or subsection (a)(11). See id. § 102.003(a)(9), (a)(11).




                                                  -5-
                                                                                     04-19-00334-CV


B.     Mom’s Arguments

       Although Mom argues that Step-Mom pled standing under subsection 102.003(a)(11), the

focus of Mom’s argument is whether Step-Mom established a fact question under subsection

102.003(b). See id. § 102.003(b).

C.     Dispositive Question

       We disagree with Step-Mom’s first contention that we should deny Mom’s petition because

Mom did not challenge Step-Mom’s standing under subsection (a)(9). Instead, because Mom

raised a challenge under subsection (b), and subsection (b) addresses the time computation analysis

for subsections (a)(9) and (a)(11), we consider subsection (b)’s time computation analysis that is

based on the child’s principal residence. See id. (requiring the six-month time computation to

“consider the child’s principal residence during the relevant time”); In re H.S., 550 S.W.3d at 156.

D.     Step-Mom’s Burden

       To meet her burden to allege facts demonstrating standing under the Family Code, Step-

Mom had to produce evidence that her home was the children’s principal residence in which they

lived for at least six months before she filed her petition.         See TEX. FAM. CODE ANN.

§ 102.003(a)(9), (a)(11), (b); Jasek, 348 S.W.3d at 528; In re Y.B., 300 S.W.3d at 4. We accept

Step-Mom’s evidence as true, but we also consider other relevant evidence. See In re H.S., 550

S.W.3d at 155; Jasek, 348 S.W.3d at 528.

       Step-Mom argues that Dad’s home had a fixed place for the children to sleep, it was

permanent rather than temporary, and the children visited mostly every other weekend. Cf. In re

L.F., No. 02-17-00310-CV, 2017 WL 4684025, at *2–3 (Tex. App.—Fort Worth Oct. 19, 2017,

orig. proceeding) (mem. op.) (relating another step-mom’s similar facts and arguments).




                                                -6-
                                                                                     04-19-00334-CV


E.     Principal Residence Requirements Not Met

       When Step-Mom was asked where the children lived, she acknowledged that they lived in

Leakey—which is where Mom lives. Step-Mom produced no evidence that the children’s

principal residence was in her home for the statutorily required period. Contra In re M.P.B., 257

S.W.3d at 809 (concluding that Grandmother met the six-month time requirement because “there

were at least six months when [the child]’s principal residence was Grandmother’s home”). Step-

Mom’s testimony that the children “had their own rooms, clothes, bed, bicycles, etc. at [Dad and

Step-Mom’s] residence” and the children lived there on alternating weekends was no evidence that

her home was the children’s principal residence.

       Step-Mom’s testimony is no evidence that she met “the time necessary for standing under

Subsections (a)(9) [or] (a)(11)” as required by section 102.003(b). See TEX. FAM. CODE ANN.

§ 102.003(b); In re H.S., 550 S.W.3d at 156; In re L.F., 2017 WL 4684025, at *3 (concluding, in

a subsection (a)(11) case, that even though the children had their own bedrooms in step-mother’s

home, she “fail[ed] to demonstrate that the children ‘have resided [at her home in these rooms] for

at least six months ending not more than 90 days preceding the date of the filing of the petition.’”

(second alteration in original)); In re M.P.B., 257 S.W.3d at 809.

       Because Step-Mom failed to allege facts demonstrating standing under section 102.003,

the trial court lacked subject matter jurisdiction over Step-Mom’s SAPCR, and the trial court erred

by denying Mom’s plea to the jurisdiction.

                                          CONCLUSION

       “Due to the unique and compelling circumstances presented in a SAPCR action, . . .

mandamus relief is . . . an appropriate remedy for an order denying a motion to dismiss for lack of

standing in a SAPCR action.” In re Martin, 523 S.W.3d 165, 169 (Tex. App.—Dallas 2017, orig.

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


                                                -7-
                                                                                      04-19-00334-CV


proceeding) (“Because temporary orders in suits affecting the parent-child relationship are not

appealable, a petition for a writ of mandamus is an appropriate means to challenge them.”).

       Accordingly, we conditionally grant Mom’s petition for writ of mandamus and order the

trial court to (1) vacate its May 17, 2019 “Order Denying Respondent’s Plea to the Jurisdiction”;

(2) vacate its May 17, 2019 “Temporary Orders in Suit Affecting the Parent-Child Relationship”;

(3) render an order granting “Respondent’s Plea to the Jurisdiction” and dismissing for want of

jurisdiction Step-Mom’s original petition in her suit affecting the parent-child relationship.

       The writ will issue only if the trial court fails to comply this order within fifteen days from

the date of this opinion and order.

                                                  Patricia O. Alvarez, Justice




                                                -8-
