                                Fourth Court of Appeals
                                        San Antonio, Texas

                                   MEMORANDUM OPINION
                                            No. 04-15-00606-CV

                                       IN RE James David HENRY

                                     Original Mandamus Proceeding 1

Opinion by:       Rebeca C. Martinez, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Rebeca C. Martinez, Justice
                  Jason Pulliam, Justice

Delivered and Filed: December 23, 2015

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

           On September 28, 2015, relator James David Henry filed a petition for writ of mandamus,

complaining of the trial court’s order denying his motion to transfer venue of the underlying suit

for modification of an order affecting the parent-child relationship to Midland County. See TEX.

FAM. CODE ANN. § 155.201(b) (West 2014). We conclude the trial court abused its discretion in

denying the motion to transfer. Therefore, we conditionally grant mandamus relief.

                                             BACKGROUND

           James David Henry filed the suit underlying this mandamus proceeding on July 18, 2011,

seeking to establish a parent-child relationship with his minor son. In August 2011, Henry obtained




1
 This proceeding arises out of Cause No. 2011-CI-11645, styled In the Interest of B.A.H., A Child, pending in the
150th Judicial District Court, Bexar County, Texas, the Honorable Karen H. Pozza presiding.
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an agreed order adjudicating him to be the father of B.A.S., his son with Stephanie Markell. The

order changed the child’s name to B.A.H., but did not address conservatorship.

         Henry later filed an amended petition in which he sought medical and psychological

examinations of Markell, and to be named the sole managing conservator of B.A.H. The trial court

signed an order in February 2012 requiring Markell to participate in medical and psychological

examinations with specified providers, and to authorize the release of her medical records to

Henry’s attorney for use in connection with the on-going litigation. A second order was signed

after Markell failed to submit to the required examinations in violation of the February order. In

this second order, signed April 5, 2012, the trial court again ordered Markell to participate in

medical and psychological examinations, appointed Henry the temporary sole managing

conservator of B.A.H., and ordered B.A.H. placed in the custody of his father. Markell was further

enjoined from interfering with Henry’s possession and from attempting to take possession of the

child. After obtaining a writ of attachment when Markell failed to release the child to him, Henry

eventually took possession of B.A.H. on April 10, 2012. 1

         In August 2015, while in the process of relocating from Midland County to the Dallas area,

Henry and his family were staying in a hotel in Tarrant County, Texas. After receiving a telephone

call from B.A.H., Markell drove to Tarrant County, picked B.A.H. up from the hotel parking lot

without notice to Henry, and returned with B.A.H. to Bexar County. On September 4, 2015, Henry

filed the current petition for modification concurrently with his motion to transfer venue and notice

of setting. Henry filed in Bexar County, as the court with continuing, exclusive jurisdiction. In the

petition to modify, Henry sought to be designated as the conservator with the exclusive right to

determine the primary residence of B.A.H. Henry requested that venue for the modification be


1
 Neither party pursued a trial setting with respect to Henry’s requests for sole conservatorship or other relief, and the
amended petition was eventually dismissed for want of prosecution in December 2014.

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transferred to Midland County, as B.A.H. had continuously resided with him in Midland County

from the time he took possession in April 2012 until August 20, 2015, when Markell took B.A.H.

with her to Bexar County. Markell was served with the motion to transfer, notice of setting, and

petition for modification on September 5, 2015. The motion for transfer and request for temporary

orders were set on the non-jury docket for September 16.

       Markell filed a counter-motion for modification on September 16, in which she requested

child support, supervised visitation for Henry and additional temporary orders. Markell requested

the trial court deny Henry’s motion to transfer, stating in her counter-motion that the child was

then living with her in Bexar County, and B.A.H. had previously been “illegally residing with his

father.” The trial court conducted a hearing on the motion to transfer and signed an order denying

the motion on September 21, 2015. Henry then filed this petition for writ of mandamus.

                                            ANALYSIS

       Generally, mandamus will issue only to correct a clear abuse of discretion for which the

relator has no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135

(Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig.

proceeding). The trial court’s clear failure to correctly analyze or apply the law to the facts will

constitute an abuse of discretion correctable by mandamus. Walker, 827 S.W.2d at 840. When a

trial court fails to transfer venue pursuant to a mandatory venue provision in a family law case,

mandamus is appropriate because remedy by appeal, though technically available, is inadequate

to protect the rights of parents and children to trial in a particular venue. See Proffer v. Yates, 734

S.W.2d 671, 673 (Tex. 1987).

       Henry complains the trial court abused its discretion in denying his motion to transfer

venue in accordance with the mandatory provision requiring venue of a modification in a county

where the child has resided for six months or longer. See TEX. FAM. CODE ANN. § 155.201(b). “In
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a suit to modify the parent-child relationship, the trial court has a mandatory ministerial duty under

Family Code section 155.201 to transfer the suit to a county where the child has lived for six

months or longer.” In re Leyva, 333 S.W.3d 315, 317 (Tex. App.—San Antonio 2010, orig.

proceeding). A party seeking to prevent transfer can file a controverting affidavit denying that

grounds for transfer exist. See TEX. FAM. CODE ANN. § 155.204(d) (West 2014).

       Markell did not file a controverting affidavit, but did file a sworn counter-motion for

modification on the day of the hearing. In her motion, Markell requests that the court deny transfer

because B.A.H. was no longer residing in Midland County, and had been “illegally residing with

his father” prior to August 2015.

       At the hearing on the motion to transfer venue, Henry testified that B.A.H. had lived with

him in Midland County since he took custody in 2012. B.A.H. had been enrolled in private school

in Midland County and was involved in football, basketball and track. Henry testified that he and

his family were in the process of moving to Flower Mound, Texas in August 2015 for his job. He

indicated that the family planned to maintain its residence in Midland County as well, despite

relocating to Flower Mound.

       Markell testified that B.A.H. had been residing with her in San Antonio since she picked

him up from the hotel parking lot in Dallas on August 20, 2015. She admitted that prior to that

day, Henry had actual care, custody and control of B.A.H. in Midland County since April 2012.

Thus, despite opposing Henry’s request to transfer venue, Markell does not dispute that B.A.H.

had continuously resided in Midland County for more than six months before the current petition

for modification. Once it was established that the child had resided in another county for at least

six months prior to the modification, the trial court had no discretion to deny transfer to that county

on Henry’s timely request. See In re Wheeler, 177 S.W.3d 350, 353 (Tex. App.—Houston [1st

Dist.] 2005, orig. proceeding).
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       The Family Code directs the trial court to consider the child’s “principal residence” when

determining a question of mandatory venue. See TEX. FAM. CODE ANN. § 155.203 (West 2014).

“[T]he court may not require that the period of residence be continuous and uninterrupted but shall

look to the child’s principal residence during the six-month period preceding the commencement

of the suit.” Id. The allegations in Henry’s motion to transfer are sufficient to allege B.A.H.’s

principal residence in Midland County for more than six months before the suit for modification.

The operative facts are supported by sufficient evidence in the record and are uncontroverted by

Markell. Accordingly, the trial court was required to grant Henry’s motion to transfer. See TEX.

FAM. CODE ANN. § 155.201(b).

       Markell argues that Henry waived his right to request transfer of venue by his conduct

because she did not voluntarily allow B.A.H. to go with Henry in 2012. While Markell may not

have desired for her son to go with Henry in 2012, Henry’s possession of B.A.H. was not “illegal”

as Markell contends. Unlike the cases Markell cites in support of her position, Henry’s possession

of B.A.H. was pursuant to a legitimate temporary court order. See, e.g., Huey v. Huey, 200 S.W.3d

851, 853 (Tex. App.—Dallas 2006, no pet.) (finding waiver of right to transfer when children were

removed from the county of continuing jurisdiction in violation of an existing divorce decree). The

trial court appointed Henry the temporary sole managing conservator of the child in April 2012.

As the sole managing conservator, Henry had the right to determine the child’s primary residence.

See TEX. FAM. CODE ANN. § 153.132 (West 2014). Although the 2012 temporary order may have

ceased to be effective when Henry’s prior petition was dismissed in 2014 for want of prosecution,

neither parent took steps to secure a permanent custody order prior to Henry’s 2015 petition for

modification.




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                                          CONCLUSION

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

to transfer the underlying modification proceeding to Midland County pursuant to Texas Family

Code section 155.201(b). Accordingly, we conditionally grant the petition for writ of mandamus

and direct the trial court to transfer the underlying proceeding to Midland County. The writ will

issue only if we are notified the trial court has failed to comply.


                                                   Rebeca C. Martinez, Justice




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