                                      IN THE
                              TENTH COURT OF APPEALS



                                      No. 10-16-00156-CV

                               IN RE ELIZABETH HARPER


                                      Original Proceeding



                               MEMORANDUM OPINION

        Relator Elizabeth Harper seeks mandamus relief pertaining to the trial court’s

denial of her plea to the jurisdiction in the underlying original SAPCR filed by Dawn and

Michael Caldwell.1 Harper’s plea to the jurisdiction alleges that the Caldwells lack

standing under Family Code subsection 102.003(a)(9), which provides that an original

suit may be filed at any time by “a person, other than a foster parent, who has had actual

care, control, and possession of the child for at least six months ending not more than 90

days preceding the date of the filing of the petition.” TEX. FAM. CODE ANN. § 102.003(a)(9)



1
 Briefly, the factual background is that Harper gave birth to G.C.H. in Oklahoma, and under an agreement
with the Caldwells, they took G.C.H. from the hospital, ostensibly for an anticipated adoption, but Harper
changed her mind and sought possession of G.C.H. When she gained possession of G.C.H. through
Oklahoma proceedings, she returned to Texas with him.
(West Supp. 2016). Harper argues that the Caldwells did not timely file their suit within

90 days of the end of the period in which they had “actual control” of G.C.H. and thus

lack standing under subsection 102.003(a)(9).

       The Caldwells had been appointed guardians of G.C.H. in Oklahoma, but in

Harper’s mandamus proceeding in the Supreme Court of Oklahoma, the Oklahoma

district court was directed to remove the Caldwells as G.C.H.’s guardians in a September

14, 2015 order that is filed-marked September 15, 2015. The Oklahoma Supreme Court’s

order does not mention care, control, or possession of G.C.H.

       In an order file-marked September 16, 2015, the Oklahoma district court removed

the Caldwells as guardians and revoked their guardianship letters, but it too does not

mention care, control, or possession of G.C.H. The reporter’s record from a September

22, 2015 hearing on Harper’s petition for writ of habeas corpus reflects that the Oklahoma

district court signed a writ of assistance on September 17, 2015, but that writ is not in the

record, and nothing in the record otherwise indicates if it was served on the Caldwells or

the content of that writ, including whether it states anything pertaining to the care,

control, or possession of G.C.H.

       The reporter’s record of the September 22 hearing on Harper’s habeas petition

indicates that Harper’s petition for writ of habeas corpus was filed in Oklahoma district

court on September 21, 2015 and that the writ of habeas corpus issued that day. While

the writ of habeas corpus is not in the record, it is obvious from the reporter’s record that

the writ of habeas corpus required the Caldwells to produce G.C.H. at the September 22

hearing. The only mention of service of the writ of habeas corpus on the Caldwells is a


In re Harper                                                                           Page 2
statement by the Caldwells’ attorney during the September 22 hearing that the writ had

been received “today.” The reporter’s record further reflects that Harper obtained

possession of G.C.H. at that hearing.

       Harper contends that, based on the above events and Oklahoma orders, the 90-

day time period in which the Caldwells had to file their SAPCR in Texas began to run on

either September 14 or 15 and that the Caldwells had to file their SAPCR no later than

December 14 or 15, but they filed it on December 17. Harper asserts that when the

Oklahoma Supreme Court and the Oklahoma district court entered their respective

orders on September 15 and September 16 pertaining to the guardianship of G.C.H., the

Caldwells’ continued possession of G.C.H. ceased to be “legal” (or lawful) and they thus

did not have “actual control” of G.C.H. as of one of those dates. Accordingly, Harper

contends that the trial court abused its discretion by denying her plea to the jurisdiction,

which asserted that the Caldwells lack standing because they filed suit after the 90-day

period in subsection 102.003(a)(9) had expired.

                Mandamus is an extraordinary remedy that is available only when
       the trial court has clearly abused its discretion and there is no adequate
       remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36,
       137 (Tex. 2004) (orig. proceeding). A clear abuse of discretion occurs when
       a trial court “reaches a decision so arbitrary and unreasonable as to amount
       to a clear and prejudicial error of law.” Walker v. Packer, 827 S.W.2d 833, 839
       (Tex. 1992) (orig. proceeding). A trial court has no discretion in determining
       what the law is or applying the law to the facts. Id. Therefore, a clear failure
       by the trial court to analyze or apply the law correctly will constitute an
       abuse of discretion, and may result in appellate reversal by extraordinary
       writ. Id. at 840.

             The improper denial of a plea to the jurisdiction is generally not
       reviewable by mandamus because it involves a question of law that can be
       addressed by ordinary appeal. See In re State Bar of Tex., 113 S.W.3d 730, 734


In re Harper                                                                              Page 3
        (Tex. 2003) (orig. proceeding). However, mandamus review is appropriate
        when there is a jurisdictional dispute in a proceeding involving
        conservatorship issues. See Geary v. Peavy, 878 S.W.2d 602, 603 (Tex. 1994)
        (orig. proceeding); In re Green, 352 S.W.3d 772, 774 (Tex. App.—San Antonio
        2011, orig. proceeding). This is due to the unique and compelling
        circumstances presented when the trial court decides issues of
        conservatorship. See Geary, 878 S.W.2d at 603. Because temporary orders
        are not appealable, mandamus is an appropriate remedy when a trial court
        abuses its discretion in issuing temporary orders in a SAPCR. See In re
        Derzapf, 219 S.W.3d 327, 335 (Tex. 2007) (orig. proceeding).

               A party seeking conservatorship of a child must have standing to do
        so. In re McDaniel, 408 S.W.3d 389, 396 (Tex. App.—Houston [1st Dist.]
        2015, orig. proceeding). Because standing is implicit in the concept of
        subject matter jurisdiction, it is a threshold issue in a conservatorship
        proceeding. In re N.L.D., 344 S.W.3d 33, 37 (Tex. App.—Texarkana 2011, no
        pet.). A party’s lack of standing deprives the court of subject matter
        jurisdiction and renders subsequent trial court action void. In re Smith, 260
        S.W.3d 568, 572 (Tex. App.—Houston [14th Dist.] 2008, orig. proceeding).
        Whether a trial court has subject matter jurisdiction is a question of law,
        which we review de novo. In re K.D.H., 426 S.W.3d 879, 882 (Tex. App.—
        Houston [14th Dist.] 2014, no pet.).

In re Lankford, --- S.W.3d ---, ---, 2016 WL 4447697, at *2 (Tex. App.—Tyler Aug. 24, 2016,

no pet. h.).

        Additionally, the relator bears the burden of providing a sufficient record to

establish a right to mandamus relief. See In re Schuttpelz, 10-15-00072-CV, 2015 WL

1967834, at *2 (Tex. App.—Waco Apr. 30, 2015, orig. proceeding) (mem. op.).

        In Lankford, the Tyler court addressed the contention that “actual control” to

establish standing under subsection 102.003(a)(9) means “legal control.”2 Lankford, ---


2
 In Lankford, the court discussed In re K.K.C., 292 S.W.3d 788 (Tex. App.—Beaumont 2008, orig. proceeding),
noting that there the

        court opined that “‘control,’ as used in subsection (a)(9), must mean something more than
        the control implicit in having care and possession of the child if the word is to be given
        effect and treated as more than surplusage.” Id. at 792. Therefore, “[t]he word must be


In re Harper                                                                                         Page 4
S.W.3d at ---, 2016 WL 4447697, at *3. After surveying the split in authority among Texas

courts on the issue,3 the Tyler court agreed with the Austin court in Jasek:

               [W]e conclude that, had the legislature intended “control” to mean
        “legal control” instead of “control” in its ordinary sense, it could easily have
        defined it as such. Or it could have defined “actual control” to mean “legal
        control.” But it did neither. Therefore, we agree with the reasoning in Jasek
        and hold that its definition of “actual control” reflects the legislature’s
        intent when it enacted the “control” requirement of section 102.003(a)(9).

Id., --- S.W.3d at ---, 2016 WL 4447697, at *3.

        Harper also cites to a common-law exception to standing that is similar to the

“legal control” argument: “The courts have carved out one exception to this standing

rule. If possession is maintained in violation of a valid court order, that possession does

not confer standing to bring suit affecting the parent-child relationship.” In re S.S.G., 208

S.W.3d 1, 3 (Tex. App.—Amarillo 2006, pet. denied) (citing Perez v. Williamson, 726 S.W.2d

634, 636 (Tex. App.—Houston [14th Dist.] 1987, no writ)).

        Assuming without deciding that either the “legal control” theory or the Perez

exception applies, we conclude that, based on the record before us, Harper has not shown



        understood in the context of the rights, duties, and responsibilities of a parent.” Id. The
        court then concluded that “control” refers to “the power or authority to guide and manage,
        and includes the authority to make decisions of legal significance for the child.” Id. at 793.

Lankford, --- S.W.3d at ---, 2016 WL 4447697, at *4.

3
  Compare Jasek v. Tex. Dep’t of Fam. & Prot. Servs., 348 S.W.3d 523 (Tex. App.—Austin 2011, no pet.); In re
K.G., No. 05-14-01171-CV, 2016 WL 3265215, at *6 (Tex. App.—Dallas June 13, 2016, no pet.) (mem. op.); In
re K.S., No. 14-15-00008-CV, 2016 WL 1660366, at *4 (Tex. App.—Houston [14th Dist.] Apr. 26, 2016, pet.
denied); In re B.A.G., No. 11-11-00354-CV, 2013 WL 364240, at *10 (Tex. App.—Eastland Jan. 13, 2013, no
pet.) (mem. op.); and In re K.K.T., No. 07-11-00306-CV, 2012 WL 3553006, at *4 (Tex. App.—Amarillo Aug.
17, 2012, no pet.) (mem. op.) with In re K.K.C., 292 S.W.3d 788 (Tex. App.—Beaumont 2008, orig.
proceeding); In re H.S., No. 02-15-00303-CV, 2016 WL 4040497, at *5 (Tex. App.—Fort Worth July 28, 2016,
pet. filed) (mem. op.); In re N.I.V.S., No. 04-14-00108-CV, 2015 WL 1120913, at *5 (Tex. App.—San Antonio
Mar. 11, 2015, no pet.) (mem. op.).


In re Harper                                                                                             Page 5
that the Caldwells had illegal control of G.C.H.—or control of him in defiance of a court

order—such that they did not file their SAPCR after the expiration of 90 days from when

their allegedly illegal or defiant control began.

       As noted above, neither the Oklahoma Supreme Court’s September 15 order nor

the Oklahoma district court’s September 16 order pertaining to the Caldwell’s

guardianship of G.C.H. mention the care, control, or possession of G.C.H. And while the

record refers to the Oklahoma district court’s issuance of a writ of assistance on

September 17, that writ is not in the record, and nothing else in the record indicates that

it pertains to the Caldwells’ care, control, or possession of G.C.H. and their possible

defiance of the writ.

       In conclusion, Harper has not provided a sufficient record that would establish

her right to mandamus relief under her legal theory. Accordingly, we deny the petition

for writ of mandamus.


                                                    REX D. DAVIS
                                                    Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
       (Chief Justice Gray concurs in the judgment denying the petition for writ of
       mandamus. A separate opinion will not issue. He notes, however, that he would
       deny the petition solely on the merits that have nothing to do with the sufficiency
       of the record. See Chief Justice Gray’s Dissent to Request for Response in this
       proceeding issued on June 2, 2016.)
Petition denied
Opinion delivered and filed October 26, 2016
[OT06]




In re Harper                                                                         Page 6
