Opinion issued May 16, 2019




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                            ————————————
                               NO. 01-18-00903-CV
                            ———————————
             IN RE DAVID TIMOTHY BUTTERFIELD, Relator



            Original Proceeding on Petition for Writ of Mandamus


                          MEMORANDUM OPINION

      Relator, David Timothy Butterfield, has filed a petition for a writ of

mandamus challenging the trial court’s order denying his plea to the jurisdiction and

request for the court to decline jurisdiction in a suit affecting the parent-child
relationship.1 In two issues, Butterfield contends that the trial court lacks jurisdiction

under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).2

      We conditionally grant the petition.

                                     Background

      Butterfield and real party in interest, Jacqueline Torres, are the parents of a

daughter, E.B., who was born in Colorado in March 2017. In January 2018, Torres

and E.B. moved to Texas. On June 8, 2018, Butterfield, who continues to reside in

Colorado, filed a Petition for Allocation of Parental Responsibilities in Pueblo

County, Colorado, seeking “allocation of parental responsibilities, the establishment

of child support, and any other orders necessary to effectuate the best interests of

[E.B.].” On June 15, 2018, Torres filed a Petition to Adjudicate Parentage in district

court in Brazoria County, Texas, seeking “to establish the parent-child relationship

between [Butterfield]” and E.B. and orders for conservatorship, visitation, and

support.

      Butterfield responded in the Texas proceeding by filing his Special

Appearance, Plea to the Jurisdiction, Request for Court to Decline Jurisdiction, and

Original Answer. In part, he asked the court to dismiss Torres’s petition because the

court lacked subject-matter jurisdiction or, if the court concluded that it had


1
      The underlying case is In the Interest of E.E.B., a Child, No. 97319-F, in the 300th
      District Court of Brazoria County, the Honorable J. Randall Hufstetler presiding.
2
      See TEX. FAM. CODE ANN. §§ 152.001–.317.
                                            2
jurisdiction, decline jurisdiction or stay the proceedings. Butterfield argued that the

Texas court lacked jurisdiction because, under the UCCJEA, Texas was not E.B.’s

home state and Colorado was her home state.3 He attached to his pleading an

Affidavit for UCCJEA Information in which he testified that E.B. had lived in

Colorado with Torres and Butterfield from “March 9, 2017 – January 19, 2018” and

had lived in Texas with Torres from “January 19, 2018 – Present.”4 He further

testified that he had “filed a Petition for Allocation of Parental Responsibilities in

Pueblo County, Colorado, on June 8th, 2018” and Torres “was personally served

with a Summons for Allocation of Parental Responsibilities on June 26, 2018.”

(Emphasis omitted.) Butterfield also filed a separate Affidavit in Support of Special

Appearance and Plea to Jurisdiction. In that affidavit, he testified:

            I presently live in Pueblo County, Colorado, and have lived in
      Colorado since 1986. [Torres] resided with me in Colorado until
      January 19, 2018.

             [E.B.] was born in Colorado on March 9, 2017. [She] lived in
      Colorado with [Torres] and me from her birth until January 19, 2018,
      when [Torres] unexpectedly moved out of Colorado, to Texas, with
      [E.B.], without notifying me that she was moving and without any
      consent or agreement by me to move to Texas. . . .

            I filed a Petition for Allocation of Parental Responsibilities in
      Pueblo County, Colorado, on June 8th, 2018. [Torres] was personally
      served with a Summons for Allocation of Parental Responsibilities on
      June 26th, 2018.


3
      See id. § 152.201(a).
4
      See id. § 152.209(a).
                                          3
           [Torres] filed a Petition to Adjudicate Parentage in Brazoria
      County (this case) on June 15, 2018, and I was served on June 28, 2018.

             Texas is not [E.B.’s] home state. [She] resided in Colorado for
      the first 10 months of her life. It has only been 5 months since [Torres]
      unexpectedly moved out of Colorado, to Texas, with [E.B.]. Therefore,
      Texas is not the home state of [E.B.] and does not have jurisdiction to
      make orders regarding [E.B.] Colorado is [E.B.’s] home state.

      Torres filed, in the Texas proceeding, her Affidavit for UCCJEA Information.

She testified that her and E.B.’s present address was in Texas; E.B. had lived in

Colorado with Torres and Butterfield between “03/09/2017 – 01/08/2018,” and with

Torres between “01/08/2018 – 1/20/2018”; and she and E.B. had lived in Texas at

one address between “01/21/2018 – 04/06/2018” and at a second address between

04/06/2018 – present.” Torres further testified the she had “recently been served on

a parentage action in Colorado to which [she was] challenging jurisdiction.”

      The Texas court scheduled a hearing on temporary orders and Butterfield’s

plea to the jurisdiction for July 2, 2018. A docket sheet entry reflects that the hearing

was “reset pending [the] outcome of [a] jurisdictional matter.” A second docket

sheet entry reflects that a “phone call with [the] Colorado court on [the] issue of

jurisdiction” was “scheduled by [the] Colorado Court” for 2:00 p.m. on August 8,

2018. A record was not made “as conference did not take place. [The] Colorado

court declined to participate in the call to resolve jurisdiction” and the Texas court

“assumed subject[-]matter jurisdiction to proceed with [the] matter.” On August 10,

2018, the Texas court signed an order denying Butterfield’s Special Appearance,
                                           4
Plea to the Jurisdiction, and Request for Court to Decline Jurisdiction, stating that

the Colorado court “declined to participate in the scheduled telephone conference”

and, “[a]s such and [i]n accordance with the Texas Family Code,” finding that

“Texas has jurisdiction.”

      On August 29, 2018, the Colorado court signed an order denying Torres’s

motion to dismiss the proceeding in that court and setting out that court’s findings.

In part, the Colorado court found that Torres “conced[ed] in her Motion to Dismiss

that she [had] filed an action for allocation of parental responsibilities or the Texas

statutory equivalent before July 21, 2018, which would have been the date on which

[E.B] would have resided in the State of Texas for 182 days”; Colorado “was the

home state of [E.B.]” on June 8, 2018, the date of the commencement of the

Colorado proceeding; and Texas “was not the home state of [E.B.] at the

commencement of the proceeding in [Texas] as [she] had not resided in the State of

Texas for at least 182 days before commencement of that proceeding.” The court

found, therefore, that “jurisdiction for the determination of allocation of parental

responsibilities/custody of [E.B.] is properly determined” in the action pending in

Colorado, Texas “does not have jurisdiction,” and the Colorado court “[had] not

declined to exercise jurisdiction.” The order also included findings regarding the

Colorado court’s “attempt[s] to confer with the Texas Court”:

      1.     “This Court’s first call to the State of Texas was placed directly
             to [the Texas court] . . . on July 2, 2018. This call was in response
                                           5
     to a call from [the Texas court] placed to the Family Court
     Facilitator in [the Colorado court] on July 2, 2018. A voice mail
     was left on the Family Court Facilitator’s telephone asking that
     [the Colorado court] call [the Texas court] to confer.”
2.   “On July 2, 2018, [the Colorado court] returned the call directly
     to [the Texas court]. The call was not answered and a voice mail
     message was left for a return call. No return call was ever
     received from [the Texas court].”
3.   “At [a] setting held on July 31, 2018, [the Colorado court] noted
     that a conference call with the Texas Court would be scheduled.”
4.   “The Division Clerk [arranged] for the telephone conference to
     take place on August 8, 2018, between [the Texas court] and [the
     Colorado court]. . . . On August 3, 2018, the Division Clerk
     received a call directly from [the Texas court] and scheduled the
     conference call to take place on August 8, 2018, at 1:00 p.m.
     Colorado time. It was confirmed that [the Colorado court] would
     call the Texas [c]ourt at [its telephone number].”
5.   “On August 8, 2018, [the Colorado court] attempted two phone
     calls to the [telephone] number and received voice mail on both
     occasions. The practice of [the Colorado court] is that these calls
     are conducted on the record. Therefore, this Court placed the
     phone calls from [the Colorado court’s] Courtroom.”
6.   “It was later learned from a call log history . . . that [the Texas
     court] was attempting to place a call to the Division Clerk at her
     desk phone at 1:03 p.m. and 1:14 p.m. The Division Clerk was
     unavailable as she and this judicial officer were in the Courtroom
     attempting to call [the Texas court] per the prior arrangements.”
7.   “[The Texas court] later that day called the Family Court
     Facilitator in [the Colorado court]. By the time that call was
     placed, [the Colorado court] was in another hearing and not
     available to take the call. Based on the Family Court’s
     Facilitator’s conversation with [the Texas court], the Family
     Court Facilitator informed the Division Clerk that we had in fact
     attempted to call the correct telephone number and that [the
     Texas court] would be out of the office the following week so it
     would be a couple of weeks before [the Texas court] could
     reschedule anything.”

                                  6
     8.      “Upon subsequent attempt by the Division Clerk to reschedule
             the telephone conference beginning August 20, 2018, the week
             [the Texas court] was again to be available, [the Colorado court]
             was informed that the Texas [c]ourt had decided that he was
             keeping jurisdiction. [The Colorado court] . . . subsequently
             learned that on the very day of the attempted conference call, [the
             Texas court] entered an Order in the Texas action stating that [the
             Colorado court] ‘declined to participate in the scheduled
             telephone conference.’”
      9.     “This finding by the Texas [c]ourt is directly contrary to the
             facts . . . .”
      10.    “Upon learning of the entry of the Texas Order by counsel for
             [Butterfield] filing a copy of that Order in this case, [the
             Colorado court] has on two occasions attempted to contact [the
             Texas court] directly and received only voice mail. Further [the
             Colorado court] has engaged in e-mail correspondence with the
             [the Texas court’s] Clerk who stated to [the Colorado court] that
             she would forward [the Colorado court’s] message onto [the
             Texas court]. No return calls or e-mails have been received from
             [the Texas court] attempting to resolve this issue in accordance
             with the provisions of the [UCCJEA]. Therefore, [the Colorado
             court] finds that the Texas Court has declined to make sufficient
             attempt to appropriately communicate with [the Colorado court]
             pursuant to the requirements of the [UCCJEA].”
      11. “The State of Colorado is not an inconvenient forum for
           determination of the custodial issues. [E.B.] has spent more of
           her life in the State of Colorado than in the State of Texas. [E.B.]
           and [Butterfield] have a significant connection with the State of
           Colorado, and there is substantial evidence available in the State
           of Colorado concerning [E.B.’s] care, protection, training and
           personal relationships.”

Butterfield filed the Colorado court order in the Texas court proceeding.

      In the Texas court proceeding, Butterfield also filed a motion to reconsider

the court’s August 10, 2018 order. At the hearing on his motion, Butterfield asserted

that the “Texas Family Code is . . . very specific and requires that Texas was the
                                          7
home state of the child or that the home state of the child has declined jurisdiction.”

And, the Texas court addressed its attempts to confer with the Colorado court.

According to the court, a hearing was set for July 2, 2018 on temporary orders and

Butterfield’s plea to the jurisdiction. That day, the court “placed a call” to the

Colorado court, did not “receive an answer,” and “reset the hearing on Temporary

Orders . . . pending the outcome of the jurisdictional matter.” The Texas court then

communicated with “an administrator for the [Colorado] court . . . and scheduled a

telephone conference with their magistrate” for “the time that they selected,” which

was “2:00 o’clock [Texas] time” on August 8, 2018. The Texas court “made that

phone call”; “got no response”; “made another phone call”; and “got a response from

someone who was not the coordinator for that magistrate, who then connected [the

court] to the coordinator for the magistrate in the [Colorado court].” According to

the Texas court, “the administrator for [the Colorado] court” said that “the magistrate

was in a hearing and was unavailable.” The Texas court explained:

      I said [to the administrator] I scheduled this telephone conference
      specifically for this time and [the Colorado court] picked the time and
      the date and I’m here on the record or ready to be on the record with
      counsel. So, I will give you a few minutes to get your magistrate off
      the bench, so that we can have this telephone conference.
            [The administrator] said [the magistrate] was not going to be
      available. So, they chose not to participate and did not. That ended the
      telephone conference on August the 8th, 2018.
            I was never able to visit with the magistrate in Colorado; and
      subsequent to that, I declined to continue trying to communicate with
      someone who doesn’t want to communicate and reviewed the Special

                                          8
      Appearance, denied the Special Appearance and the Plea to the
      Jurisdiction, and assumed jurisdiction based upon all of the affidavits
      that have been presented and the various motions to that time.
             There’s nothing in the Family Code, the UCCJEA that instructs
      this Court, nor is there a case that is instructive, on how to deal with the
      jurisdiction that doesn’t want to participate. . . . And therefore, I, in
      making the phone call, made the effort and denied the Special
      Appearance and Plea to the Jurisdiction . . . .

      The Texas court further explained that the August 8, 2018 call “was scheduled

as a telephone conference” between the Texas court and the Colorado court, pursuant

to the UCCJEA, “to determine would the [Colorado court] assume or decline

jurisdiction and would [the Texas court] assume or decline jurisdiction.” The

Colorado court “failed and refused to participate.” The Texas court, therefore,

decided not to “giv[e] up jurisdiction,” and “based upon the findings and the

affidavits that were presented, would . . . assum[e] jurisdiction.” The court then

signed its order on August 10, 2018. The hearing record reflects that the Texas court

reviewed the Colorado court’s August 29, 2018 order. However, it had “no force

and effect” and was “late” because signed after the Texas court had “already

assumed jurisdiction.” The Texas court denied Butterfield’s motion to reconsider.

                                Standard of Review

      Mandamus relief is available to correct a clear abuse of discretion when there

is no adequate remedy by appeal. See In re Odyssey Healthcare, Inc., 310 S.W.3d

419, 422 (Tex. 2010) (orig. proceeding); In re Prudential Ins. Co. of Am., 148


                                           9
S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). A trial court abuses its

discretion when its action is so arbitrary and unreasonable as to constitute a clear

and prejudicial error of law. See In re Cerberus Capital Mgmt., L.P., 164 S.W.3d

379, 382 (Tex. 2005) (orig. proceeding). “A trial court has no ‘discretion’ in

determining what the law is or in applying the law to the facts.” Walker v. Packer,

827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). Whether a trial court has

subject-matter jurisdiction is a question of law that we review de novo. See In re

Walker, 428 S.W.3d 212, 215–216 (Tex. App.—Houston [1st Dist.] 2014, orig.

proceeding); In re Burk, 252 S.W.3d 736, 739 (Tex. App.—Houston [14th Dist.]

2008, orig. proceeding); see also In re D.S., 555 S.W.3d 301, 311 (Tex. App.—

Dallas 2006, orig. proceeding) (“The UCCJEA is a subject-matter jurisdiction

statute.”). Mandamus relief is an appropriate means to require a trial court to comply

with the UCCJEA’s jurisdictional requirements. Powell v. Stover, 165 S.W.3d 322,

324 (Tex. 2005); In re Walker, 428 S.W.3d at 215. “[I]n jurisdictional disputes

arising from child custody proceedings, the relator need not demonstrate the

inadequacy of an appellate remedy.” In re Salminen, 492 S.W.3d 31, 38 (Tex.

App.—Houston [1st Dist.] 2016, orig. proceeding) (internal quotations omitted).

                                    Jurisdiction

      In his first and second issues, Butterfield argues that the Texas court erred in

assuming jurisdiction in this matter because Texas was not E.B.’s home state,

                                         10
Colorado had been her home state during the six months before the filing of the

Texas proceeding, and another proceeding was pending in Colorado.5

      The UCCJEA provides the exclusive basis for a Texas court to exercise

jurisdiction over a child-custody determination.         See TEX. FAM. CODE ANN.

§ 152.201(b); In re Dean, 393 S.W.3d 741, 746 (Tex. 2012) (orig. proceeding). A

Texas court has subject-matter jurisdiction to make an initial child-custody

determination only if:

      (1) this state is the home state of the child on the date of the
      commencement of the proceeding, or was the home state of the child
      within six months before the commencement of the proceeding and the
      child is absent from this state but a parent or person acting as a parent
      continues to live in this state;
      (2) a court of another state does not have jurisdiction under Subdivision
      (1), or a court of the home state of the child has declined to exercise
      jurisdiction on the ground that this state is the more appropriate forum
      under Section 152.207 or 152.208, and:
             (A) the child and the child’s parents, or the child and at least one
      parent or a person acting as a parent, have a significant connection with
      this state other than mere physical presence; and



5
      Butterfield also asserts that the Texas court could not have assumed jurisdiction
      under section 152.206(a) of the Family Code. Section 152.206(a) addresses
      simultaneous proceedings in which a Texas court has jurisdiction under the
      UCCJEA and a proceeding is pending “in a court of another state having jurisdiction
      substantially in conformity with the [UCCJEA].” TEX. FAM. CODE ANN.
      § 152.206(a); see In re McCoy, 52 S.W.3d 297, 305 (Tex. App.—Corpus Christi–
      Edinburg 2001, orig. proceeding); In re J.P.L., 359 S.W.3d 695, 710 (Tex. App.—
      San Antonio 2011, pet. denied); Waltenburg v. Waltenburg, 270 S.W.3d 308, 318
      (Tex. App.—Dallas 2008, no pet). Here, the Texas court did not have jurisdiction
      under the UCCJEA. Further, section 152.206(a) does not confer jurisdiction over a
      proceeding. See In re McCoy, 52 S.W.3d at 305.
                                          11
             (B) substantial evidence is available in this state concerning the
      child’s care, protection, training, and personal relationships;
      (3) all courts having jurisdiction under Subdivision (1) or (2) have
      declined to exercise jurisdiction on the ground that a court of this state
      is the more appropriate forum to determine the custody of the child
      under Section 152.207 or 152.208; or
      (4) no court of any other state would have jurisdiction under the criteria
      specified in Subdivision (1), (2), or (3).

TEX. FAM. CODE ANN. § 152.201(a); see id. §§ 152.207 (addressing inconvenient

forum), 152.208 (addressing declining jurisdiction because “person seeking to

invoke [court’s] jurisdiction has engaged in unjustifiable conduct”). A child’s

“[h]ome state” is “the state in which a child lived with a parent or a person acting as

a parent for at least six consecutive months immediately before the commencement

of a child custody proceeding.” Id. § 152.102(7) (internal quotations omitted). A

“[c]hild custody proceeding” is “a proceeding in which legal custody, physical

custody, or visitation with respect to a child is an issue.” Id. § 152.102(4) (internal

quotations omitted). A proceeding commences on the filing of the first pleading.

Id. § 152.102(5). Unless a Texas court has jurisdiction under one of the four grounds

enumerated in section 152.201, the court cannot exercise jurisdiction over a child

custody determination. See id. § 152.201(b).

      Torres, as the petitioner in the Texas court, had the burden to allege facts

establishing the Texas court’s subject-matter jurisdiction. See In re S.A.H., 465

S.W.3d 662, 666 (Tex. App.—Houston [14th Dist.] 2014, no pet.); Barajas v.


                                          12
Santiago, No. 01-10-00914-CV, 2012 WL 760921, at *3 (Tex. App.—Houston [1st

Dist.] Mar. 8, 2012, no pet.) (mem. op.). In her petition, Torres pleaded that E.B.

resided in Texas and “[n]o court had continuing jurisdiction” of E.B. and there were

“no court-ordered conservatorships, court-ordered guardianships, or other

court-ordered relationships affecting [E.B.].” In this Court, Torres does not dispute

that Colorado was E.B.’s home state at the time she filed her petition in the Texas

court.

         “[T]he operative date for determining whether Texas has jurisdiction is the

date the suit was filed in Texas.” In re Walker, 428 S.W.3d at 219 (internal

quotations omitted). Torres filed her petition in the Texas court on June 15, 2018.

The parties’ affidavit testimony shows that E.B. was born in Colorado on March 9,

2017; lived in Colorado until January 19 or 20, 2018; and lived in Texas beginning

January 21, 2018. As of June 15, 2018, E.B. had lived in Texas for approximately

five months and had not lived in Texas for six consecutive months before Torres

filed her petition. Texas, therefore, was not E.B.’s home state. See TEX. FAM. CODE

Ann. § 152.201(a)(1); see also In re Walker, 428 S.W.3d at 217 (concluding Texas

was not child’s home state because child not physically present in Texas for six

consecutive months immediately before initiation of child custody proceeding); In

re Salminen, 492 S.W.3d at 40 (concluding Texas was not child’s home state when




                                         13
child had not lived in Texas for six-month period immediately preceding filing of

Texas child custody proceeding).

      Colorado was E.B.’s home state if Colorado was her “home state within one

hundred eighty-two days before the commencement of the proceeding” and she “was

absent from [Colorado] but a parent or person acting as a parent continued to live in

[Colorado].” COLO. REV. STAT. ANN. § 14-13-201(1)(a); see generally TEX. FAM.

CODE ANN. § 152.201(a)(1). In his affidavits, Butterfield testified that, when he filed

his petition in the Colorado court on June 8, 2018, he lived in Colorado. E.B. did

not live in Colorado on that date but had lived in Colorado from her birth on March

17, 2017 until January 19 or 20, 2018. Because Colorado was E.B.’s home state

within 182 days of the start of the Colorado proceeding, she did not live in Colorado

on that date but Butterfield lived in Colorado, Colorado was E.B.’s home state. See

COLO. REV. STAT. ANN. § 14-13-201(1)(a); see generally In re Walker, 428 S.W.3d

at 218 (concluding Georgia was child’s home state within six months before

commencement of child custody proceeding); In re Burk, 252 S.W.3d at 741

(concluding Texas was child’s home state within six months before commencement

of child custody proceeding).

      Recognizing that Colorado was E.B.’s home state, Torres asserts that the

Texas court properly exercised jurisdiction under section 152.201(a)(2) of the Texas

Family Code. Section 152.201(a)(2) provides that a Texas court may exercise

                                          14
jurisdiction if “a court of the home state of the child has declined to exercise

jurisdiction on the ground that this state is the more appropriate forum under Section

152.207” and:

      (A) the child and the child’s parents, or the child and at least one parent
      or a person acting as a parent, have a significant connection with this
      state other than mere physical presence; and
      (B) substantial evidence is available in this state concerning the child’s
      care, protection, training, and personal relationships[.]

TEX. FAM. CODE ANN. § 152.201(a)(2).            In determining whether to decline

jurisdiction, a court may communicate with a court in another state. See In re Milton,

420 S.W.3d 245, 273 (Tex. App.—Houston [1st Dist.] 2013, orig. proceeding)

(citing TEX. FAM. CODE ANN. § 152.110(b)).

      Torres argues that jurisdiction was proper under section 152.201(a)(2)

because the Colorado court “implicitly declined to exercise jurisdiction because of

its inability or unwillingness to call the [Texas] court as scheduled or its

unwillingness to take the call of [that] court” and the Texas court “inferred that the

Colorado court had implicitly declined to exercise jurisdiction” as of August 8, 2018.

Torres relies on In re T.B., 497 S.W.3d 640 (Tex. App.—Fort Worth 2016, pet.

denied), to support her argument that a Texas court “may infer an ‘implied

determination’ that the court of another state has declined to exercise home state

jurisdiction.”



                                          15
      In In re T.B., the mother filed, in Texas, a suit affecting the parent-child

relationship seeking to modify a Florida court order concerning conservatorship and

visitation. The father moved to dismiss the Texas proceeding for lack of jurisdiction

under the UCCJEA and filed, in the Florida court, a motion asking that court to

confirm its jurisdiction and enforce its order. 497 S.W.3d at 644. When the Florida

court did not rule on the father’s motion or respond to the Texas court’s attempts to

communicate with the court, the Texas court heard the mother’s motion to modify

and signed a final judgment modifying the Florida court’s order. Id. On appeal, the

father argued that the Texas court lacked subject-matter jurisdiction because the

Florida court had not declined to exercise its home-state jurisdiction. Id. at 649–50.

The court of appeals explained, “[u]nder the unique facts presented [in that case]”:

      the Florida court’s failure to communicate with the trial court for over
      six months and the Florida court’s failure to rule on [f]ather’s motion
      filed with it—for over six months before the trial court proceeded to a
      final hearing, for over eight months before the trial court signed a final
      judgment, and for over fourteen months to date—constitute[ed] an
      implied determination by the Florida court to decline to exercise its
      home-state jurisdiction and an implied determination by the Florida
      court that Texas is a more convenient forum for litigation of [m]other’s
      modification SAPCR.

Id. at 651. The court held, “under the narrow facts presented,” that the Texas court

had subject-matter jurisdiction to modify the Florida court’s order. Id.

      The decision in In re T.B. does not support a conclusion that the Texas court

properly assumed jurisdiction over Torres’s proceeding. Here, the Texas court and

                                         16
the Colorado court attempted to, but did not, communicate about the pending

proceedings and the Texas court “assumed jurisdiction to proceed with [the] matter.”

And, approximately two and one-half months after Torres filed her Texas court

petition and one month after she filed her motion to dismiss the Colorado

proceeding, the Colorado court denied the motion, stating that the court “ha[d] not

declined to exercise jurisdiction.” Any failure of the Colorado court to communicate

with the Texas court did not provide any basis on which the Texas court may have

exercised jurisdiction over Torres’s proceeding. Because Colorado was E.B.’s home

state and the Colorado court did not decline jurisdiction, the Texas court could not

exercise jurisdiction under section 152.201(a)(2).       See TEX. FAM. CODE ANN.

§ 152.201(a)(2); In re Dean, 393 S.W.3d at 747 (explaining Texas court should not

have assumed jurisdiction when New Mexico court had not yet declined jurisdiction

under UCCJEA); In re S.A.H., 465 S.W.3d at 667 (concluding Texas court did not

have jurisdiction when home-state court did not decline jurisdiction); see also In re

Milton, 420 S.W.3d at 275 (explaining when Utah court had not declined jurisdiction

and Texas court did not have subject-matter jurisdiction over proceeding “any

communication with the Utah court could not have established jurisdiction”).6


6
      Because we conclude that the Colorado court did not decline jurisdiction, we need
      not address Torres’s arguments that Texas is a more appropriate forum, she and E.B
      have significant connections with Texas, and substantial evidence is available in
      Texas. See TEX. R. APP. P. 47.1; see generally TEX. FAM. CODE ANN.
      § 152.201(a)(2).
                                          17
      We sustain Butterfield’s first and second issues.

                                    Conclusion

      We conclude that the Texas court did not have jurisdiction under Texas

Family Code section 152.201 and the trial court erred in assuming jurisdiction in this

matter and denying Butterfield’s plea to the jurisdiction. We conditionally grant the

petition for writ of mandamus and direct the trial court to dismiss the proceeding

filed by Torres. The writ will issue only if the trial court does not comply. Finally,

we vacate our November 8, 2018 order staying the trial court proceedings.



                                              Julie Countiss
                                              Justice

Panel consists of Chief Justice Radack and Justices Goodman and Countiss.




                                         18
