In Re: Adela Williams--Appeal from of County

6-96-028-CV Long Trusts v. Dowd In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-03-00038-CV
______________________________
IN RE: ADELA WILLIAMS
Original Mandamus Proceeding
Before Ross, Carter, and Cornelius,* JJ.
Memorandum Opinion by Justice Carter

_________________

*William J. Cornelius, Chief Justice, Retired, Sitting by Assignment

MEMORANDUM OPINION

Relator, Adela Williams, asks this Court to issue a writ of mandamus directing the Honorable Ralph Burgess, judge of the 5th Judicial District Court, Bowie County, Texas, to rescind his order denying her petition for writ of habeas corpus. In that petition, she sought possession of her fourteen- and fifteen-year-old sons pursuant to the terms of an agreed order on motion to modify, which was entered by the court of continuing jurisdiction (the 309th Judicial District Court of Harris County, Texas) on August 17, 1995.

Williams executed an affidavit relinquishing her parental rights, and on September 21, 1999, the 309th Judicial District Court terminated her parental rights. Thereafter, during 2001, she filed a petition for bill of review in the 309th Judicial District Court. On January 22, 2003, the trial court entered an order which dissolved the decree of termination. It appears that no appeal was filed from that order.

The trial court also entered a "report" granting the bill of review, entering temporary orders regarding the children, with the father named sole managing conservator, and mother possessory conservator with agreed visitation supervised by the father.

Williams states that she appeared at the real party in interest's residence in Bowie County at approximately 6:00 p.m. on Friday, March 7, 2003, the beginning of the spring break period, to obtain possession of the children for that period as allowed by the language of the 1995 order. Her former husband declined to surrender the children. Williams then contacted her attorney and, on March 10, filed a petition in the 5th Judicial District Court seeking habeas relief and possession of the children.

The district court conducted a hearing on Tuesday, March 11, 2003, and denied her petition.

Williams takes the position that the prior order was reinstated by dissolving the termination order and that she is therefore entitled to possession.

We may issue a mandamus to correct the erroneous denial of a writ of habeas corpus seeking possession of a minor pursuant to a valid court order. See Schoenfeld v. Onion, 647 S.W.2d 954, 956 (Tex. 1983) (orig. proceeding) (per curiam); In re Lau, No. 01-02-00889-CV, 2002 WL 31388914 (Tex. App.-Houston [1st Dist.] Oct. 24, 2002, orig. proceeding). Habeas proceedings may not be used to litigate modification of custody orders. Schoenfeld, 647 S.W.2d at 955.

Habeas corpus proceedings to regain custody pursuant to a prior court order are governed by section 157.372(a) of the Texas Family Code:

Subject to Chapter 152 and the Parental Kidnapping Prevention Act (28 U.S.C. Section 1738A), if the right to possession of a child is governed by a court order, the court in a habeas corpus proceeding involving the right to possession of the child shall compel return of the child to the relator only if the court finds that the relator is entitled to possession under the order.

 

Tex. Fam. Code Ann. 157.372(a) (Vernon 2002).

If the 1995 order were the sole document at bar, then the Relator would have shown the necessary right to possession of the children. However, as set out above, that document was not the sole document presented to the trial court. At the time that the 309th Judicial District Court, the court of continuing, exclusive jurisdiction of the children, issued its order vacating the termination order, the trial court also created a handwritten document entitled "JUDGE'S REPORT." In that document, the trial court wrote:

Court grants Bill of Review and enters; sua sponte, temporary orders regarding the children:

Father is appointed sole managing conservator; mother possessory. All periods of possession to be mutually agreed and supervised by Father.

 

The document is dated and signed by the trial court. Relator argues that this does not constitute a formal judgment or order and that it is nothing more than a written statement similar to a letter written to the parties. A letter, or a similar document such as this "report," is not a rendition of judgment if it only indicates the court's intention to render judgment in a certain way and sets out guidelines by which counsel are to draw a judgment. Mixon v. Moye, 860 S.W.2d 209, 210 (Tex. App.-Texarkana 1993, orig. proceeding); Ex parte Gnesoulis, 525 S.W.2d 205 (Tex. Civ. App.-Houston [14th Dist.] 1975, orig. proceeding).

However, if a letter contains the language of command that identifies an order, it is an order of the court. Gregory v. Foster, 35 S.W.3d 255, 257 (Tex. App.-Texarkana 2000, no pet.).

We find that this report is not a statement of future intent to enter an order: it contains language of command and was entered by the court of continuing jurisdiction over the children. It contains specific language concerning periods of possession and the method to be used by the mother to obtain access to the children and sets the conditions on which such possession may occur-mutual agreement and supervision by the father. Further, it appears from the information elicited at the hearing that the parties had been acting under the terms set out in the report.

We therefore have both the 1995 decree and an order changing the visitation provision. As previously stated, the trial court is required to act when shown by a valid court order that the party is entitled to possession of the child. Mandamus is proper only if the trial court committed a clear abuse of discretion that was so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. M.J.R. v. Vick, 753 S.W.2d 526, 528 (Tex. App.-Fort Worth 1988, orig. proceeding). It is not clear from this record that the 1995 order is the presently subsisting and valid final order of the court of continuing jurisdiction. Therefore, we cannot conclude based on this record that the trial court abused its discretion by acting outside the bounds of its authority or the statutory framework governing this type of action.

The Relator has not shown herself clearly entitled to the relief sought. The petition for mandamus is denied.

 

Jack Carter

Justice

 

Date Submitted: March 13, 2003

Date Decided: March 14, 2003