In Re: Davie W. Rashell--Appeal from of County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-04-00050-CV

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IN RE:

DAVIE W. RASHELL

Original Mandamus Proceeding

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

Davie W. Rashell has filed a petition for writ of mandamus in which he asks this Court to order the Honorable Bill Peek, judge of the 202nd Judicial District Court, to set aside his order transferring a suit affecting the parent-child relationship to a court sitting in a different county. Rashell complains that the court did not follow the requirements of Tex. R. Civ. P. 87(1) and provide him forty-five days' notice of a hearing on the motion to transfer.

Mandamus issues only when the mandamus record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law, and (2) the absence of a clear and adequate remedy at law. Cantu v. Longoria, 878 S.W.2d 131, 132 (Tex. 1994); Walker v. Packer, 827 S.W.2d 833, 839 40 (Tex. 1992). Mandamus is an extraordinary remedy that will issue only to correct a clear abuse of discretion or, in the absence of another statutory remedy, when the trial court fails to observe a mandatory statutory provision conferring a right or forbidding a particular action. Abor v. Black, 695 S.W.2d 564, 567 (Tex. 1985).

Rashell states that the motion to transfer the suit was filed and granted on March 31, 2004. Rashell correctly points out the Texas Supreme Court has held it is an abuse of discretion, correctable by mandamus, for a trial court to rule on a motion to transfer venue without giving the parties the notice required by Tex. R. Civ. P. 87(1). HCA Health Servs. v. Salinas, 838 S.W.2d 246, 247 48 (Tex. 1992); Henderson v. O'Neill, 797 S.W.2d 905 (Tex. 1990). Based on those facts, he asks this Court to find that the trial court abused its discretion by transferring the case.

The cited cases and statute do not apply to this situation. Transfers of existing and continuing cases involving the parent-child relationship are controlled by application of the Family Code. See Tex. Fam. Code Ann. 155.201, 155.202 (Vernon 2002).

Further, the information provided to this Court does not contain either the complained-of motion or order and does not otherwise provide the specific information that would permit us to review the trial court's action.

Under these circumstances, we find this petition to be without merit.

We deny the petition for writ of mandamus.

Jack Carter

Justice

Date Submitted: April 21, 2004

Date Decided: April 22, 2004