In Re: Mae Phillips--Appeal from 321st District Court of Smith County

NO. 12-07-00164-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN RE: MAE PHILLIPS, ORIGINAL PROCEEDING

RELATOR

MEMORANDUM OPINION

In this original proceeding, Mae Phillips seeks a writ of mandamus requiring the trial court to vacate its April 13, 2007 order denying an amended motion to transfer venue filed by Trevia Phillips.1 We deny the writ.

Procedural Background

Amber Phillips filed an original suit affecting the parent-child relationship (SAPCR) in Smith County, Texas, seeking emergency ex parte relief and appointment as sole managing conservator of five year old G.K.P. Amber is the estranged wife of G.K.P. s maternal uncle, Tyree Phillips. Pursuant to a writ of attachment issued by the trial court, G.K.P. was removed from the home of her maternal grandmother, Mae Phillips, in Odessa, Ector County, Texas and transported to Smith County. Trevia Phillips, G.K.P. s biological mother, filed a motion, and later an amended motion, to transfer the case to Ector County. Citing Texas Family Code section 103.001, Trevia alleged that she resided in Ector County and that when the writ of attachment was issued, G.K.P. was in her actual care, custody, and control in Ector County. Mae intervened in the cause. After a hearing, the trial court orally denied Trevia s amended motion to transfer and signed an order denying the motion on April 13, 2007.2 This original proceeding followed.

Prerequisites to Mandamus

Ordinarily, to be entitled to mandamus relief, a relator must show that the trial court clearly abused its discretion and that it has no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004) (orig. proceeding). The trial court abuses its discretion when it fails to properly apply the law to the undisputed facts, when it acts arbitrarily or unreasonably, or when its ruling is based on factual assertions unsupported by the record. In re Kramer, 9 S.W.3d 449, 450 (Tex. App. San Antonio 1999, orig. proceeding).

As a general rule, transfer of an original SAPCR is mandatory if venue is improper and a party other than the petitioner files a timely motion to transfer the case to the county of proper venue. Tex. Fam. Code Ann. 103.002(a) (Vernon 2002); McManus v. Wilborn, 932 S.W.2d 662, 666 (Tex. App. Houston [14th Dist.] 1996, orig. proceeding [leave denied]). Despite the availability of an appeal, mandamus is available to compel the mandatory transfer of a SAPCR. McManus, 932 S.W.2d at 663. This is so because appeal is frequently inadequate to protect the rights of parents and children to a trial in a particular venue. McManus, 932 S.W.2d at 663 (quoting Proffer v. Yates, 734 S.W.2d 671, 673 (Tex. 1987)); see also Tex. Fam. Code Ann. 155.204(h) (Vernon Supp. 2006) (order transferring or refusing to transfer is not subject to interlocutory appeal). Consequently, in this case, we need address only whether the trial court clearly abused its discretion in denying Trevia s amended motion to transfer.

Abuse of Discretion

Mae contends that the trial court abused its discretion in denying the motion because Trevia resides in Ector County and had actual care, control, and possession of G.K.P. at the time the SAPCR was filed. See Tex. Fam. Code Ann. 103.001(c)(2) (Vernon 2002) (if parents of child do not reside in same county and no managing conservator, custodian, or guardian of the person has been appointed, child resides in county where parent having actual care, control, and possession of child resides). Amber, who resides in Smith County, asserts that she had the right to control G.K.P. s residence when she filed the SAPCR because she had a written statement from Trevia dated May 11, 2005 giving her that right. In this statement, Trevia gave Amber and Tyree managing conservatorship and full custody of G.K.P. and described their responsibilities as [caring] for [G.K.P.] financially, day care/school enrollment, medical, housing/living arrangements any and all including any relocations in the future outside of Ector County - Odessa, TX, travel, and any and all other needs that arise for [G.K.P.] who has resided with Amber + [sic] Tyree since Feb. 2002. 3 Therefore, she concludes, venue is proper in Smith County and the trial court properly denied Trevia s motion to transfer.

The Hearing

The procedures in Texas Family Code Chapter 155 apply to the transfer of an original SAPCR. Tex. Fam. Code Ann. 103.002(c)(1) (Vernon 2002). Under Chapter 155, if a timely motion to transfer venue has been filed and no controverting affidavit is filed within the time prescribed, the trial court has a mandatory duty to transfer the case promptly without a hearing. See Tex. Fam. Code Ann. 155.204(c) (Vernon Supp. 2006). If a controverting affidavit is filed, a hearing must be held, but only evidence pertaining to the transfer may be taken at the hearing. See Tex. Fam. Code Ann. 155.204(e), (f) (Vernon Supp. 2006). Amber did not challenge the timeliness of Trevia s motion, and neither Trevia nor Mae asserted that Amber s objection was defective.4 Consequently, the trial court was required to conduct a hearing on the motion, see Tex. Fam. Code Ann. 155.204(e), (f), and did so on March 23, 2007.

At the hearing, Trevia had the burden to show that venue was proper in Ector County. See Pratt v. Tex. Dep t of Human Res., 614 S.W.2d 490, 493 (Tex. Civ. App. Amarillo 1981, writ ref d n.r.e.). The reporter s record shows that Trevia s counsel presented argument, but informed the trial court that we want[] to decide [the matter] only on the pleadings, not on any testimony or any other evidence per [Texas Rule of Civil Procedure] 87, and that s what that s what we were going on. The Court shall decide it on the pleadings, affidavits, stipulations between the parties. 5 However, the procedures in Chapter 155 were designed to supplant the rules of civil procedure applicable to transfer of venue in ordinary civil cases. Leonard v. Paxson, 654 S.W.2d 440, 441 (Tex. 1983) (interpreting predecessor section); In re Leder, 2007 WL 1953877, at *2. Therefore, the procedures in Chapter 155 are the exclusive mechanisms for challenging venue and for transferring the case in a SAPCR. In re Leder, No. 01-07-00453-CV, 2007 WL 1953877, at *2 (Tex. App. Houston [1st Dist.] July 6, 2007, orig. proceeding [mandamus denied]). Rule 87 does not apply. See Leonard, 654 S.W.2d at 441; In re Leder, 2007 WL 1953877, at *2.

The record here includes Amber s original petition and an affidavit in support of her request for emergency habeas relief, Trevia s verified amended motion to transfer, Amber s objection to the transfer, and the reporter s record of the transfer hearing. Pleadings are not competent evidence even if they are sworn or verified, see Laidlaw Waste Systems (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995), and motions are not evidence. Clayton, 169 S.W.3d at 684. Unless introduced into evidence, an affidavit attached to a pleading will not be considered as evidence. Estate of Nelson v. Neal, 764 S.W.2d 322, 325 (Tex. App. Texarkana 1988), aff d, 787 S.W.2d 343 (Tex. 1990). And finally, arguments of counsel are not evidence. See Clayton v. Wisener, 169 S.W.3d 682, 684 (Tex. App. Tyler 2005, no pet.). Trevia did not introduce any affidavits, stipulations, testimony, or other evidence at the transfer hearing. Because Trevia introduced no evidence at the hearing, she failed to show that venue was proper in Ector County. Accordingly, the trial court did not abuse its discretion in denying Trevia s amended motion to transfer venue.

Disposition

Because Mae has not shown that the trial court abused its discretion in denying Trevia s amended motion to transfer, Mae s petition for writ of mandamus is denied.

JAMES T. WORTHEN Chief Justice

Opinion delivered October 17, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)

1 The real party in interest is Amber Phillips. The respondent is the Honorable Carole W. Clark, Judge of the 321st Judicial District Court, Smith County, Texas.

2 Although Mae was not named as a movant in the amended transfer motion, the allegations in Mae s mandamus petition are sufficient to show that she has adopted the motion by reference. See Tex. R. Civ. P. 58.

3 Tyree is not a party in the trial court or in this court.

4 Because the issue is not before us, we express no opinion on whether Amber s written objection to the transfer complied with section 155.204.

5 Under Rule 87, the trial court determines a motion to transfer venue based on the pleadings, any stipulations by and between the parties, and any affidavits and attachments filed according to the rules of procedure. Tex. R. Civ. P. 87(3)(b).