In re Brian Thomas Stellpflug--Appeal from 406th Judicial District Court of Webb County

MEMORANDUM OPINION

No. 04-03-00876-CV

IN RE Brian Thomas STELLPFLUG

Original Mandamus Proceeding[1]

PER CURIAM

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: November 26, 2003

PETITION FOR WRIT OF MANDAMUS DENIED

On November 24, 2003, Brian Thomas Stellpflug filed a petition for writ of mandamus asking this court to order the respondent judges to Avacate the orders rendered in this action[] and to cease any further judicial activity in this case.@ Because Stellpflug is not entitled to the relief sought, we deny the petition.

The Protective Order Proceedings

On September 26, 2003, Luis Maldonado, the stepfather of Stellpflug=s children, applied for a protective order against Stellpflug[2]. The Honorable Raul Vasquez issued a temporary ex parte order prohibiting Stellpflug from having contact with his children and set the protective order for hearing on October 15, 2003. See Tex. Fam. Code Ann. '' 82.002(c), 83.001, 83.002(a), 84.002(a) (Vernon 2002). The Honorable Andres Reyes and the Honorable Elma Teresa Salinas Ender have since extended the temporary ex parte order for additional twenty-day periods. See id. ' 83.002(b).

The hearing on the protective order scheduled for October 15 was not held. Instead, the trial court reset the hearing for October 31. On October 31, the hearing was reset for November 14. On November 14, the hearing was reset for December 1. Stellpflug alleges that he has appeared for each of the scheduled hearings and has not consented to any of the continuances. The Texas Family Code provides the trial court Ashall@ conduct a hearing on an application for protective order not later than fourteen, and in some cases twenty, days after the application is filed. See id. '' 84.001, 84.002. None of the statutory grounds to continue the hearing appear to apply. See id. '' 84.003-.005. Further, on October 14, 2003, Stellpflug moved to vacate the temporary ex parte order pursuant to section 83.004 of the Family Code and requested a hearing on the motion. Section 83.004 provides that A[o]n the filing of the motion to vacate, the court shall set a date for hearing the motion as soon as possible.@ Id. ' 83.004. Stellpflug alleges that the motion to vacate has not been set or heard.

Stellpflug contends the trial court has abused its discretion by failing to hold the statutorily required hearings. We agree. The trial court must hold a hearing on Stellpflug=s motion to vacate and on the application for protective order and mandamus relief may be available to compel the hearings. However, Stellpflug has not asked for this relief. Instead, he contends that the failure to conduct the protective order hearing renders the orders extending the temporary ex parte protective order void. We disagree. The Family Code expressly authorizes extensions of the temporary ex parte order. See id. ' 83.002(b).

The Suit Affecting the Parent-Children Relationship

The Texas Department of Protective and Regulatory Services took emergency possession of the children without a court order and filed a petition in intervention on October 1, 2003. See id. '' 262.104, 262.105. The trial court held an initial hearing and issued an ex parte emergency temporary order on October 2. See id. ' 262.106. The emergency temporary order names the Department temporary sole managing conservator of the children Auntil a full adversary hearing is held@ and orders that they be placed by the Department with Luis Maldonado. The order also states that Aa full adversary hearing under ' 262.201, Texas Family Code, will be held@ on October 15, 2003. Unless the children have been returned to the person entitled to possession and the emergency order dissolved, section 262.201 provides that Aa full adversary hearing shall be held not later than the 14th day after the date the child[ren were] taken into possession by the governmental entity.@ Id. ' 262.201(a). Stellpflug alleges he appeared at the time and place set for the hearing on October 15, 2003, but that no full adversary hearing was held then and none has been held since October 15. The mandamus record contains no further orders resetting the hearing.

Stellpflug contends that the trial court=s failure to conduct the full adversary hearing within fourteen days as required by statute renders the court=s orders relating to the petition in intervention void and asks that we compel the trial court to vacate such orders and to Acease any further judicial activity in [the] case.@ However, the failure to hold a full adversary hearing timely is not jurisdictional and therefore does not render any subsequent orders void. See In re E.D.L., 105 S.W.3d 679, 685-88 (Tex. App.BFort Worth 2003, pet. filed). Stellpflug=s remedy is to seek a writ of mandamus compelling the trial court to hold the hearing. See id. at 689. However, Stellpflug does not seek this relief; and, once again, he is not entitled to the relief he does seek.

Conclusion

We deny Stellpflug=s petition for writ of mandamus (without prejudice to his refiling a petition seeking appropriate relief) and order him to pay all costs incurred in this proceeding. The clerk of this court is directed to transmit a copy of this opinion to the attorneys of record, the trial court judges named as respondents to Stellpflug=s petition for a writ of mandamus, the district clerk of Webb County, Texas, and the district clerk of Dallas County, Texas for filing in Cause No. 01-17520, pending in the 255th Judicial District Court, Dallas County, Texas.

PER CURIAM

[1]This proceeding arises out of Cause No. 2003-CVR-001566-D4, styled In the Interest of M.B.S., D.T.S., and M.S.S., Minor Children, pending in the 406th Judicial District Court, Webb County, Texas, the Honorable Andres Reyes presiding. Relator complains of orders signed by Judge Reyes, the Honorable Raul Vasquez, presiding judge of the 111th Judicial District Court, Webb County, Texas, and the Honorable Elma Teresa Salinas Ender, presiding judge of the 341st Judicial District Court, Webb County, Texas.

[2] The application requested a protective order for children who are subject to the continuing exclusive jurisdiction of the 255th Judicial District Court, Dallas County, Texas.