









In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana


______________________________


No. 06-07-00111-CV

______________________________




IN RE:  DON KERST AND THERESA KERST







Original Mandamus Proceeding











Before Morriss, C.J., Carter and Moseley, JJ.

Opinion by Justice Carter





O P I N I O N

	Don and Theresa Kerst have filed a petition for writ of mandamus asking us to order the
Honorable Scott McDowell, District Judge of the 62nd Judicial District Court in Hopkins County, 
to transfer venue of a suit affecting parent-child relationship (SAPCR) to Bowie County, Texas.  
I.	Facts and Procedural Background
	In the underlying suit, the Texas Department of Family and Protective Services (Department)
sought and obtained termination of the parental rights of the children involved.  The Department
placed the three children, ages three, four, and five, with the Kersts.  Apparently, some disagreement
occurred between the Kersts and the Department and the children were removed from the Kersts'
home.  The Kersts filed, in the Hopkins county court of continuing jurisdiction, a motion to modify
conservatorship and a motion to transfer the case to Bowie County as to two of the three children. (1)
The petition alleged that the children had lived with them, in Bowie County, for more than six
months.  The Department filed an "Affidavit Controverting Motion to Transfer."  No challenge was
made to the Kersts' assertion that the children had lived with them in Bowie County for more than
six months, but the Department alleged the forum would not be convenient to the witnesses.  At the
hearing, it was undisputed that the children had lived with the Kersts in Bowie County, Texas, for
approximately seventeen months.  After a hearing on the motion to transfer, the court denied the
motion to transfer.  	
	The Kersts argue that, because the children have resided solely in Bowie County for over six
months, the transfer was mandatory, and we should direct the trial court to follow the mandate of the
statute.  See Tex. Fam. Code Ann. § 155.201(b) (Vernon Supp. 2006). The statute reads as follows:
	     (b)     If a suit to modify or 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 transfer the proceeding to another county in this state if the child has resided in
the other county for six (6) months or longer.

The Department's response at the trial level was that  forum non conveniens should prevent the case
from being transferred.   The attorney ad litem for the children in Hopkins County filed a letter with
the district court in which he also contested the transfer, based on his belief that, during a prospective
placement situation, residency could not attach to the locale where the children reside, but should
remain with the original court.
II.	Standard of Review
	A writ of mandamus will only issue to correct a clear abuse of discretion or a violation of a
duty imposed by law when there is no adequate remedy by appeal, and the relators have the burden
to present the appellate court with a record sufficient to establish the right to mandamus relief.
Walker v. Packer, 827 S.W.2d 833, 837-39 (Tex. 1992) (orig. proceeding).  An erroneous denial of
a mandatory venue transfer is subject to mandamus relief without a showing of inadequate remedy
by appeal.  In re Tex. Ass'n of Sch. Bds., Inc., 169 S.W.3d 653, 656 (Tex. 2005); see Tex. Fam.Code
Ann. § 155.204(h) (Vernon Supp. 2006) (providing that denial of mandatory transfer is not subject
to interlocutory appeal). (2) 
	Transfer of a SAPCR action to a county where the child has resided for more than six months
is a mandatory ministerial duty under Section 155.201(b) of the Texas Family Code.  Proffer v.
Yates, 734 S.W.2d 671, 672 (Tex. 1987) (orig. proceeding); In re Leder, No. 01-07-00453-CV, 2007
WL 1953877, at *2 (Tex. App.--Houston [1st Dist.] July 6, 2007, orig. proceeding).  Mandamus
relief is available to compel the mandatory transfer of a SAPCR action.   Proffer, 734 S.W.2d at 672.
III.	The Department's Contentions
	Even though it is undisputed that the children the subject of the underlying SAPCR action
had lived with the Kersts  in Bowie County more than six months,  the Department suggests several
reasons that the Court should deny the petition for writ of mandamus. 



 A.	Forum Non Conveniens
	The stated reason in the controverting affidavit was based on forum non conveniens.  The
Department has not presented any authority, nor have we found any, that forum non conveniens may
be relied on to deny the mandatory transfer of the proceedings. 
 B.	Legislative Intent
	At oral argument, the Department urged that the Legislature never intended for proceedings
to be transferred to the county where the foster parents resided with the children.  The argument is
that, until the statute was amended, foster parents had no standing to assert these rights and, when
the Legislature granted such standing, it was not contemplated that foster parents would be allowed
to seek and obtain a transfer to the county where they resided with the children.  The Department did
not furnish any legislative history to substantiate that position.  Statutory construction is a legal
question that we review de novo, ascertaining and giving effect to the Legislature's intent as
expressed by the plain and common meaning of the statute's words.  F.F.P. Operating Partners, L.P.
v. Duenez, No. 02-0381, 2007 Tex. LEXIS 432 (Tex. May 11, 2007) (citing Tex. Dep't of Transp.
v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004)).  If a statute's meaning is unambiguous,
we generally interpret the statute according to its plain meaning.  City of San Antonio v. City of
Boerne, 111 S.W.3d 22, 25-26 (Tex. 2003).  The statute requiring the mandatory transfer of a
SAPCR action to the county where the child has resided for six months or longer is straightforward
and clear.  See Dallas County Cmty. College Dist. v. Bolton, 185 S.W.3d 868, 874 (Tex. 2005) ("we
decline to imply a legislative intent that is not reflected in the language of the statute . . . .").  Finding
the statute's meaning to be clear and unambiguous, we decline to accept the Department's invitation
to surmise that the statute has some other meaning.
 C.	Proper County for Transfer
	The Department further argues that Bowie County is not a proper county for the transfer
because the Kersts could not file an original SAPCR action there.  Citing Section 103.001 of the 
Texas Family Code, the Department argues that Bowie County would not be a county of proper
venue for the Kersts to file an original petition, and therefore it was not a proper county for transfer. 
However, this is not an original filing, but a motion to modify and transfer.  To support its argument,
the Department cites Pratt v. Texas Department of Human Resources, 614 S.W.2d 490 (Tex. App.--
Amarillo 1981, writ ref'd n.r.e.).  At the time Pratt was decided, the transfer statute required a
showing that venue was proper in another county. (3)  In Pratt the Amarillo court found that the "length
of residence in Potter County is immaterial, however, until venue has been established under one of
the subdivisions of section 11.04" (the statute governing filing of original SAPCR petitions).  Id. at
493.  Since Pratt was decided, the statute has been amended and Section 155.201(b) no longer
requires a showing by the movant that he or she would be entitled to file an original petition in the
court to which the case is being transferred.  It merely states that the court "shall . . . transfer the
proceeding to another county in this state if the child has resided in the other county for six months
or longer."  
 D.	Residency
	Finally, the Department argues that the children did not "reside" in Bowie County, but were
placed there merely for foster care (even though the Kersts have been attempting to adopt). (4)  In these
circumstances, we believe the children "resided" with the Kersts for the requisite time. (5)  These
children had only one home for the past sixteen months--with the Kersts.  It cannot be argued that
they were only temporarily absent from another, more permanent  residence, since these children had
no other home or residence.  Their natural parents' rights had been terminated.  The only home these
children had was with the Kersts.  The only case which has facts similar to this is In re Gore, No.
07-07-00290-CV, 2007 WL 2403366 (Tex. App.--Amarillo Aug. 23, 2007, orig. proceeding).  In
Gore the child had lived with foster parents in Swisher County for more than six years.  The
Amarillo court held that, since it was undisputed that the child "had resided in Swisher County for
more than six months," it was proper to transfer the case to Swisher County.  Id.  Likewise, we
believe that these children had resided in Bowie County for more than six months. (6) 
	Accordingly, Relators' petition for writ of mandamus is conditionally granted and Respondent
is directed to issue an order transferring the proceeding concerning the two involved children to
Bowie County.  Because we are confident that Respondent will enter an order to that effect, we will
issue the writ only if he fails to do so.


							Jack Carter
							Justice

Date Submitted:	October 15, 2007
Date Decided:		October 26, 2007	














1. Adding to the difficulty, the Kersts filed an original suit for adoption of the two children in
Bowie County before filing the motion to modify and transfer in Hopkins County.  In that petition,
it was alleged that no court had continuing jurisdiction of this case, which was blatantly  wrong.  At
the hearing on the motion to transfer, the Kersts' trial attorney assumed responsibility for pleading
that no other court had jurisdiction and admitted it was erroneous and apologized to the court.  The
attorney further stated that he had filed the Bowie County action as an emergency proceeding
pursuant to Section 152.204 of the Texas Family Code.  See Tex. Fam. Code Ann. § 152.204
(Vernon 2002).  That section is a part of the Uniform Child Custody Jurisdiction and Enforcement
Act which governs the jurisdiction of children when there is a question concerning which state has
jurisdiction of a child.  Section 152.204 allows a court in Texas to assume jurisdiction of a child if
the child is present in Texas and has been abandoned or subjected to mistreatment or abuse.  Here,
a Texas court undisputedly had  jurisdiction of the children--if a true emergency existed, that court
was the proper one to act.  While this original adoption filing in Bowie County may have,
understandably, caused irritation, in the analysis of this motion to transfer, it is irrelevant.  
2. Courts have held that, in a SAPCR action, the Texas Family Code's transfer provisions
supplant the Texas Rules of Procedure and venue statutes, which govern venue challenges in other
types of civil cases.  Leonard v. Paxson, 654 S.W.2d 440, 441 (Tex. 1983). 
3. See Tex. Fam. Code Ann. § 11.06 (Vernon 1986) (repealed) ("the court shall transfer the
proceeding to the county where venue is proper . . . .").
4. According to the Court Appointed Special Advocate (CASA) report of September 21, 2007,
the children were placed with the Kersts as "foster/adopt placement."  
5. We look to a child's principal residence during the six-month period preceding the
commencement of the suit.  Tex. Fam. Code Ann. § 155.203 (Vernon 2002).
6. Neither party has argued the effect of Section 153.371(10), which gives to the authorized
agency having managing conservatorship of a child the right to "designate the primary residence of
the child . . . ."  Generally, one designates residence by selecting a home and living in it.  Here the
Department designated that the children would live at the Kersts' home, where they remained for
seventeen months. It was their principal residence for the six-month period preceding the
commencement of the suit to modify.  See Tex. Fam. Code Ann. § 153.371(10) (Vernon Supp.
2006).


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                                                                        Justice
 
Date Submitted:          February 24, 2005
Date Decided:             February 25, 2005

Do Not Publish
