In re Dionel Ruiz and Renee Bonfiglio Ruiz--Appeal from of County

IN THE

TENTH COURT OF APPEALS

No. 10-00-174-CV

IN RE DIONEL RUIZ

AND RENEE BONFIGLIO RUIZ

ORIGINAL PROCEEDING

DISSENTING OPINION

Because the Ruizes have an adequate remedy by appeal, I disagree with the conditional grant of the writ of mandamus. The requirement that mandamus will not issue where there is an adequate remedy by appeal is well-settled. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). Mandamus is intended to be an extraordinary remedy, available only in limited circumstances and will issue only in situations involving manifest and urgent necessity. Id. An exception to the adequate remedy by appeal requirement of Walker was recognized by the Texas Supreme Court in Proffer. The Court observed,

Parents and children who have a right under the mandatory venue provision to venue in a particular county should not be forced to go through a trial that is for naught. Justice demands a speedy resolution of child custody and child support issues.

Proffer v. Yates, 734 S.W.2d 671, 673 (Tex. 1987) (emphasis added).

In Proffer, the parent and child had moved to another jurisdiction and the court of original jurisdiction was required to transfer the case to the new jurisdiction. The thrust behind the Proffer exception is avoidance of an unnecessary trial in child custody cases. In the cases in which this court has cited Proffer for allowing the parties to pursue relief by mandamus, we were likewise avoiding an unnecessary trial. See In re Verbois, 10 S.W.3d 825 (Tex. App. Waco 2000, orig. proceeding); In re Bishop, 8 S.W.3d 412 (Tex. App. Waco 1999, orig. proceeding); In re Simonek, 3 S.W.3d 285 (Tex. App. Waco 1999, orig. proceeding);In re Sanchez, 1 S.W.3d 912 (Tex. App. Waco 1999, orig. proceeding). However, in this case, there has already been a trial. The jury has already determined that the Ruizes parental rights should be terminated. The trial court has already signed an order of termination. The reason for allowing relief by mandamus simply does not exist in this case.

The order based on the jury s verdict was signed by the trial court five days before the Ruizes filed their mandamus action. They have not demonstrated any reason that they do not have an adequate remedy by appeal as required by Walker. They have an adequate remedy by appeal, and therefore, this mandamus should be denied. //

TOM GRAY

Justice

Dissenting opinion delivered and filed May 25, 2000

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