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COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS



 
 
 
 
 
IN RE:  THE STATE OF TEXAS,
 
                              Relator.


 
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                No. 08-02-00468-CV
 
AN ORIGINAL PROCEEDING
 
IN MANDAMUS
 
 



O P I N I O N
 
The State of Texas through the office
of the Attorney General seeks mandamus ordering the trial court to return
S.M.P. to Arizona under the Interstate Compact on Juveniles.  We conditionally grant the mandamus.
Facts




On August 12, 2002, Gloria E. Paz
petitioned the Juvenile Court of Maricopa County, Arizona, for a requisition to
return her daughter S.M.P. to her under the Interstate Compact on Juveniles
(ICJ).  Both Arizona and Texas are parties
to this agreement, as are all fifty states in the Union.  See Tex.
Fam. Code Ann. ' 60.001 historical and statutory notes
(Vernon 2002).  The Arizona court issued
the requisition to the Texas Interstate Compact on Juveniles with a finding
that the juvenile had run away from home and should be returned.  In turn, the Deputy Administrator of the
Interstate Compact on Juveniles for the State of Texas forwarded the
requisition, petition, and certified documents regarding S.M.P. to Judge Al
Walvoord of the County Court at Law of Midland, Texas, with a request that the
youth be ordered back to Arizona.  Judge
Marvin L. Moore of County Court at Law No. 2 denied the request A[a]fter a finding that the juvenile
S.M.P. is not a runaway and that she is not endangering her own welfare or the
welfare of others . . . .@
This petition for mandamus of the
judge to issue the order under the Interstate Compact on Juveniles was filed on
November 4, 2002.
Judge of Asylum State Has Ministerial
Duty to Return Child




Under the scheme set forth in section
60.002, article IV of the Texas version of the ICJ, Athe parent, guardian, person, or
agency entitled to legal custody of a juvenile who has not been adjudged
delinquent but who has run away without the consent of such parent, guardian,
person, or agency may petition the appropriate court in the demanding state for
the issuance of a requisition for his return.@ 
Tex. Fam. Code Ann. ' 60.002, art. IV(a) (Vernon
2002).  In this case, Gloria E. Paz, the
mother of the child, filed Form A under the ICJ with the Arizona court.[1]  It is the duty of the demanding state, in
this case Arizona, to hold the hearing to determine Awhether for the purposes of this
compact the petitioner is entitled to the legal custody of the juvenile,
whether or not it appears that the juvenile has in fact run away without
consent, whether or not he is an emancipated minor, and whether or not it is in
the best interest of the juvenile to compel his return to the state.@ 
Id.  Upon making such
findings, a requisition was made to the authority of Texas as the asylum
state.  ASuch requisition shall set forth the
name and age of the juvenile, the determination of the court that the juvenile
has run away without the consent of a parent, guardian, person, or agency
entitled to his legal custody, and that it is in the best interest and for the
protection of such juvenile that he be returned.@ 
Id.  AIf the judge of such [requisitioned]
court shall find that the requisition is in order, he shall deliver such
juvenile over to the officer whom the court demanding him shall have appointed
to receive him.  The judge, however, may
fix a reasonable time to be allowed for the purpose of testing the legality of
the proceeding.@  Id.




A proper requisition was issued by
the Maricopa County Juvenile Court in Arizona on the usual Form I.  In light of the request from the office of
the Texas Administrator of the Interstate Compact on Juveniles, it appears that
the request did correlate with the requirements put upon Arizona as the
demanding state under the ICJ.  The Texas
Administrative Code directs that AUpon finding that the requisition is
in order, the judge in the asylum state shall order the juvenile to return.@ 
Tex. Admin. Code ' 117.17(b)(5).  Respondent argues that on the face of the
original petition, the requisition was not Ain order@ as the petition failed to address
the endangerment requirement.  However,
this is assumed under article I of the ICJ: 
Ajuveniles who are not under proper
supervision and control, or who have absconded, escaped, or run away are
likely to endanger their own health, morals, and welfare, and the health,
morals, and welfare of others.@ 
Tex. Fam. Code Ann. ' 60.002, art. I (emphasis
added).  Further, Form I, signed by the
Arizona judge, states, Asaid juvenile=s continued absence from legal custody and control is
detrimental to the best interest of said juvenile and the public.@ 
Following these requirements, the duty of a judge receiving a proper
requisition must perform the ministerial act or duty of ordering the juvenile
to return to the demanding state.  It was
improper for Judge Moore to do otherwise. 
A writ of mandamus may be issued to compel the performance of a
ministerial act or duty or to correct a clear abuse of discretion committed by
a trial court.  Walker v. Packer,
827 S.W.2d 833, 839 (Tex. 1992).
Conclusion
Judge Moore was under a clear duty to
honor the request of Arizona in this proceeding.  He failed to do so.  In light of this, we conditionally grant
mandamus.  We are confident that Judge
Moore will vacate his order of September 30, 2002, and order the child returned
to her mother Gloria E. Paz under the guidance of the Interstate Compact 




on Juveniles and the request of the Arizona court.  Mandamus will issue only if he fails to do
so.
 
SUSAN
LARSEN, Justice
January 16, 2003
 
Before Panel No. 1
Larsen, McClure, and Chew,
JJ.
 




[1]Although
not part of the record here, we have received copies of an adoption decree
concerning S.M.P. and her sister.  The
decree was signed on December 2, 2002 by Judge James Rex.  As Judge Rex is not a subject of this
mandamus, nor is the adoption before us at this time, we make no order
concerning it.  However, we strongly urge
the parties to come to an agreement in the best interest of these children.


