Motions Denied; Petition for Writ of Mandamus Denied and Memorandum Opinion
filed September 13, 2012.




                                         In The

                      Fourteenth Court of Appeals

                                   NO. 14-12-00838-CV


                      IN RE TRACY PEOPLES FILES, Relator

                            ORIGINAL PROCEEDING
                             WRIT OF MANDAMUS
                       On Appeal from the 309th District Court
                               Harris County, Texas
                         Trial Court Cause No. 2008-58054

                        MEMORANDUM OPINION

      On September 11, 2012, relator Tracy Peoples Files filed a petition for writ of
mandamus in this court. See Tex. Gov’t Code §22.221; see also Tex. R. App. P. 52. In
the petition, relator asks this Court to compel the Honorable Sheri Y. Dean, presiding
judge of the 309th District Court of Harris County, to vacate the temporary orders
rendered in the underlying custody modification proceeding. Relator asserts that the trial
court’s ruling deprives her of the right as sole managing conservator to designate the
child’s primary residence without the requisite showing that the order is necessary
because the child’s present circumstances would significantly impair the child’s physical
health or emotional development. See Tex. Fam. Code § 156.006(b)(1). Relator also filed
a motion requesting an emergency stay of the order. See Tex. R. App. P. 52.10(a).
       Mandamus is an extraordinary remedy that will issue only if (1) the trial court
clearly abused its discretion and (2) the party requesting mandamus relief has no
adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36
(Tex. 2004). Because a trial court’s temporary orders in a custody case are not
appealable, mandamus is an appropriate means to challenge them. See In re Derzapf, 219
S.W.3d 327, 334–35 (Tex. 2007) (orig. proceeding).

       Trial courts have considerable discretion in making temporary orders for a child’s
safety and welfare in suits affecting the parent-child relationship. See Tex. Fam. Code §
105.001. A trial court has no discretion in determining what the law is or applying the
law to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). A trial court’s
determination of factual issues is entitled to deference in a mandamus proceeding and
should not be set aside unless it is clear from the record that only one decision reasonably
could have been reached. Id. at 839-40; In re Ostrofsky, 112 S.W.3d 925, 928 (Tex.
App.—Houston [14th Dist.] 2003, orig. proceeding).

       In this case, the trial court conducted a hearing at which several witnesses
testified. While some of the testimony was disputed, there is some probative evidence in
the record to support the trial court’s temporary orders. Mandamus will not lie when there
is evidence both supporting and against the trial court’s decision because weighing
conflicting evidence is a trial court function. In re Pirelli Tire, L.L.C., 247 S.W.3d 670
686 (Tex. 2007) (citing West v. Solito, 563 S.W.2d 240, 245 (Tex. 1978) (“[A]n appellate
court may not deal with disputed areas of fact in a mandamus proceeding.”)).
Accordingly, relator has not established that the trial court abused its discretion.

       We deny relator’s motion for stay. Relator’s motion to file a paper copy of the
record is denied as moot because relator has corrected the electronic record filed in
accordance with our local rules. Relator’s petition for writ of mandamus is denied.

                                       PER CURIAM

Panel consists of Justices Seymore, Brown, and Busby.



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