In re Texas Department of Family and Protective Services--Appeal from 45th Judicial District Court of Bexar County

DISSENTING OPINION
No. 04-04-00834-CV
IN RE TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES
Original Mandamus Proceeding (1)

Opinion by: Catherine Stone, Justice

Dissenting opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Sandee Bryan Marion Justice

Delivered and Filed: December 22, 2004

The majority denies mandamus relief based on its conclusion that direct appeal is generally adequate to resolve a complaint regarding lack of subject matter jurisdiction. Bell Helicopter Textron, Inc. v. Walker, 787 S.W.2d 954, 954-55 (Tex. 1990). The Texas Supreme Court, however, has stated that "[j]ustice demands a speedy resolution of child custody and child support issues." Proffer v. Yates, 734 S.W.2d 671, 673 (Tex.1987). Where a trial court has improperly asserted jurisdiction over a child custody matter, appellate courts have recognized that mandamus is an appropriate remedy due to the unique and compelling circumstances surrounding such matters. See id. at 672-73 (mandamus is available to compel mandatory transfer in suits affecting the parent-child relationship); In re McCoy, 52 S.W.3d 297, 301 (Tex. App.--Corpus Christi 2001, orig. proceeding [leave denied]). Even in restating the general rule in Bell Helicopter three years after Proffer, the Texas Supreme Court recognized the exception to this general rule in child custody situations by citing Proffer as supporting a proposition analogous to the contrary of the main proposition. See Bell Helicopter Textron, Inc., 787 S.W.2d at 955 ("but cf. Proffer v. Yates, 734 S.W.2d 671 (Tex. 1987) (mandamus appropriate to direct transfer of child support case because justice demands speedy resolution of such cases)"). Because justice demands a speedy resolution of the child custody issue presented here, I believe mandamus should be available to resolve the relator's jurisdictional complaint. Cf. Proffer v. Yates, 734 S.W.2d 671, 672-73 (Tex.1987); In re McCoy, 52 S.W.3d 297, 300-02.

Alma L. L pez, Chief Justice

1. This proceeding arises out of Cause Nos. 2003-PA-01658 & 2004-PA-01910, styled In the Interest of J.L., B.G., and S.R., Children, pending in the 45th Judicial District Court, Bexar County, Texas. The Honorable Janet Littlejohn of the 150th Judicial District Court, Bexar County, Texas conducted the hearing and ruled on the motion forming the basis of this mandamus proceeding.