                                 Fourth Court of Appeals
                                         San Antonio, Texas

                                    MEMORANDUM OPINION
                                             No. 04-13-00360-CV

                                            IN RE John PHELPS

                                      Original Mandamus Proceeding 1

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Karen Angelini, Justice
                  Rebeca C. Martinez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: July 31, 2013

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

           On June 7, 2013, relator John Phelps filed a petition for writ of mandamus, complaining of

the trial court’s failure to sign an order transferring continuing and exclusive jurisdiction of a child

custody matter to Galveston County without a hearing. See TEX. FAM. CODE ANN. § 155.301(a)

(West 2008). We conclude the trial court abused its discretion in requiring the motion be set for

hearing. See TEX. FAM. CODE ANN. § 155.204(c) (West 2008). Therefore, we conditionally grant

mandamus relief.

                                               BACKGROUND

           Phelps filed a motion to transfer continuing exclusive jurisdiction and motion for

enforcement of possession in Bexar County in December of 2012. Bexar County acquired



1
  This proceeding arises out of Cause No. 2000-CI-07648, styled In the Interest of E. H-P., A Minor Child, pending in
the 73rd Judicial District Court, Bexar County, Texas, the Honorable Richard Price presiding.
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continuing exclusive jurisdiction over the suit affecting the parent-child relationship as a result of

an original order of parentage and order for possession in Cause No. 2000-CI-07648. Phelps

alleged in his motion that the child and the child’s mother, Vanessa Hollinger, reside outside the

state and that Phelps, the only party to the proceeding remaining in Texas, now resides in Galveston

County. Phelps sought transfer of continuing exclusive jurisdiction to Galveston County pursuant

to section 155.301 of the Texas Family Code and in the interest of convenience of the parties. See

TEX. FAM. CODE ANN. § 155.301 (a), (c) (West 2008).

       Hollinger filed a pro se motion to dismiss for lack of jurisdiction and to transfer exclusive

jurisdiction to Pottawattamie County, Iowa on January 21, 2013. In her motion, Hollinger

acknowledged the original 2000 order establishing continuing exclusive jurisdiction in Bexar

County, but asserted that Bexar County no longer had exclusive jurisdiction because she and the

child had been residing out of state since June of 2012.

       On February 6, 2013, Phelps sent a letter to the Bexar County district clerk stating, “Under

the provisions of Texas Family Code § 155.204(c) ‘Procedure for Transfer’ please transfer the case

to Galveston County, Texas without a hearing. The Respondent, Vanessa Hollinger, did not file a

controverting affidavit with her motion.” With his letter, Phelps enclosed his response to

Hollinger’s motion to dismiss and transfer to Iowa, attaching an affidavit controverting certain

facts contained in Hollinger’s motion and a proposed order on his motion to transfer.

       One week later, the staff attorney for the Bexar County Civil District Courts sent a letter to

the parties acknowledging that Judge Richard Price, as presiding district judge for the month of

February 2013, had received Phelps’s letter and proposed order, but advised that “[i]n light of the

jurisdictional issues that appear to be present, the Judge requires that a hearing be set on the

motions to transfer filed by both parties.” Phelps responded with a second letter on February 18,

2013, asserting that the requirement of a hearing was contrary to the provisions of the Texas Family
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Code, reiterating that Hollinger had filed no controverting affidavit and again providing a proposed

order for signature, along with copies of cases applying section 155.204 of the Texas Family Code.

       Phelps sent two additional letters, one in April and one in May, through the staff attorney

for the district courts, re-urging his request that an order on his motion be signed without a hearing.

No order was ever signed and no hearing has been held on Phelps’s motion to transfer. Phelps then

filed this petition for writ of mandamus.

                                            ANALYSIS

       Subchapter D. of Chapter 155 of the Texas Family Code is entitled “Transfer of

Proceedings Within the State When a Party or Child Resides Outside the State.” TEX. FAM. CODE

ANN. ch. 155, subch. D, § 155.301 (West 2008). Section 155.301(a) provides:

       A court of this state with continuing, exclusive jurisdiction over a child custody
       proceeding under Chapter 152 [Uniform Child Custody Jurisdiction and
       Enforcement Act] or a child support proceeding under Chapter 159 shall transfer
       the proceeding to the county of residence of the resident party if one party is a
       resident of this state and all other parties including the child or all of the children
       affected by the proceeding reside outside the state.

TEX. FAM. CODE ANN. § 155.301(a) (emphasis added).

Section 155.301 (c) provides:

       Except as otherwise provided by this subsection, if a transfer of continuing,
       exclusive jurisdiction is sought under this section, the procedures for determining
       and effecting a transfer of proceedings provided by this chapter apply. If the
       parties submit an agreed order for transfer, the court shall sign the order without
       the need for other pleadings.

TEX. FAM. CODE ANN. § 155.301(c) (emphasis added).

Section 155.204 provides the “Procedure for Transfer”:

       (c) If a timely motion to transfer has been filed and no controverting affidavit is
       filed within the period allowed for its filing, the proceeding shall, not later than the
       21st day after the final date of the period allowed for the filing of a controverting
       affidavit, be transferred without a hearing to the proper court.

TEX. FAM. CODE ANN. § 155.204(c).

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       It is undisputed that Phelps’s motion to transfer was timely filed. It is also undisputed that

Hollinger did not file a controverting affidavit in response to Phelps’s motion within the time

period required by the statute. See TEX. FAM. CODE ANN. § 155.204(d) (West 2008). Given the

lack of a controverting affidavit, the trial court had a ministerial duty to follow the procedures

provided by the Texas Family Code and enter an order of transfer to Galveston County without

the requirement of a hearing on Phelps’s motion. See In re Leyva, 333 S.W.3d 315, 317-18 (Tex.

App.—San Antonio 2010, orig. proceeding) (concluding trial court abused its discretion in failing

to order transfer without a hearing, even to evaluate whether transfer was mandatory, where no

timely controverting affidavit was filed); In re Casseb, 119 S.W.3d 841, 843 (Tex. App.—San

Antonio 2003, orig. proceeding) (no discretion but to transfer to the county of residence of the

only Texas resident party under section 155.301).

       By failing to complete the ministerial act of signing an order of transfer and instead

requiring a hearing on Phelps’s motion, the trial court abused its discretion. See In re Leyva, 333

S.W.3d at 318 (addressing the trial judge’s contention that a hearing was necessary to determine

whether transfer was mandatory). Despite the fact that Hollinger had asserted in her motion that

she and the child had resided out of state for some period of time, the trial court’s duty to transfer

the proceeding within Texas, when there is at least one party that remains in the state and the

procedural requirements for transfer without a hearing have been met, is unchanged. See In re

Forlenza, 140 S.W.3d 373, 379 (Tex. 2004) (the decree-granting state retains continuing exclusive

jurisdiction, even when the child and custodial parent reside out of state, until there is a

determination that the significant connection and substantial evidence requirements of section

152.202(a) are no longer met); see also TEX. FAM. CODE ANN. § 155.301(a) (providing for transfer

within the state when the child and one party reside outside the state).



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                                          CONCLUSION

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

transfer continuing exclusive jurisdiction over the enforcement proceeding under Texas Family

Code section 155.301 without a hearing. Accordingly, we conditionally grant the petition for writ

of mandamus and direct the trial court to transfer the underlying proceeding to Galveston County

without a hearing. See TEX. FAM. CODE ANN. §§ 155.204(c), 155.301(a) (West 2008). The writ

will issue only if the trial court fails to comply within ten days from the date of this court’s order.

                                                       Luz Elena D. Chapa, Justice




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