In re Salgado

• Decision Date: 02 August 2001
• Docket Number: No. 08-01-00194-CV,08-01-00194-CV
• Parties: (Tex.App.-El Paso 2001) IN RE: JOSE B. SALGADO
• Court: Texas Court of Appeals

Page 752

53 S.W.3d 752 (Tex.App.-El Paso 2001)

IN RE: JOSE B. SALGADO

No. 08-01-00194-CV

Court of Appeals of Texas, El Paso.

August 2, 2001

AN ORIGINAL PROCEEDING IN MANDAMUS

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before Panel No. 1 Larsen, McClure, and Chew, JJ.

OPINION

McCLURE, Justice

In this original mandamus proceeding, Relator Jose B. Salgado challenges the issuance of a protective order and the denial of a motion to transfer venue by the Honorable Kenneth Dehart, Judge of the 394th District Court of Presidio County, Texas. We deny relief.

FACTUAL AND PROCEDURAL HISTORY

Salgado has not provided us with a reporter's record from any of the proceedings occurring in the court below. Therefore, the facts are taken from the sworn pleadings and attached exhibits. In 1990, Salgado obtained a divorce from his wife, Ana Salgado.¹ In the final decree of divorce, Salgado was appointed as the managing conservator of the couple's then four-year-old daughter, Elizabeth. It is undisputed that Elizabeth lived with Salgado until August 1998. At that point and with Salgado's written consent,² Elizabeth began residing in Marfa, Texas, with her paternal grandmother, Aurora Salgado. Salgado's sister, Mary M. Nunez, also resides with Mrs. Salgado. During the summer of 2000, Elizabeth returned to El Paso and lived with Salgado until an unspecified date in November. She then ran away from Salgado's home and went to a shelter in El Paso. Upon her allegation that Salgado had physically abused her while she lived with him during the prior months, Child Protective Services (CPS) initiated an investigation. In late November or early December, Mrs. Salgado and Nunez picked up Elizabeth in El Paso and returned her to Marfa.³ When the CPS investigation concluded in early January 2001, Salgado asked that Elizabeth be returned to El Paso. This request was refused.

On January 11, 2001, Nunez filed an application for protective order on behalf of Elizabeth in the 394th District Court of Presidio County. The application alleged that Elizabeth had been physically abused by Salgado while she lived with him in the summer and fall of 2000. The application also recited that Elizabeth resided in Marfa with Nunez and attended school there. The application sought, among other things, that Nunez be granted exclusive possession of the child. Acknowledging that the child may be subject to the continuing jurisdiction of another court, Judge Dehart issued a temporary ex parte order on January 11, 2001, prohibiting Salgado from:

committing family violence;

removing the child from Nunez's possession or from the jurisdiction of the court;

going near the residence or school for any purpose likely to harass, annoy, alarm, abuse, torment, or embarrass the child;

communicating directly with the child or communicating a threat through any person to Elizabeth or Nunez; and

possessing a firearm or ammunition.

The order granted exclusive possession of Elizabeth to Nunez and set a hearing for January 24, 2001. On the day of the hearing, Salgado filed an answer to the application, a plea to the jurisdiction, and a motion to transfer venue. Pointing out that the temporary ex parte order had granted exclusive possession of the child to Nunez in contravention of the existing custody orders, he contended that County Court at Law No. 5 has continuing exclusive jurisdiction of Elizabeth and El Paso County is the proper venue for a suit affecting the parent-child relationship.

At the conclusion of the January 24 hearing, Judge Dehart found that family violence had occurred and was likely to occur in the future. Consequently, he orally granted the protective order, limited the duration of the protective order to June 1, 2001, and specifically advised the parties that they would be required to resolve these issues before the court of continuing jurisdiction. On January 26, 2001, the Texas Department of Protective and Regulatory Services (DPRS) finalized its investigation of the allegations against Salgado, finding that he did not "have a role in the alleged abuse or neglect." Salgado then filed a motion to reconsider on February 13, 2001, reasserting his claim that the protective order was void because the County Court at Law No. 5 is the court of continuing jurisdiction. He attached a copy of the letter from DPRS absolving him of any abuse or neglect. Unpersuaded by Salgado's arguments, the trial court signed the written protective order on February 22, 2001 without expressly ruling on Salgado's motion to reconsider. The written order prohibited Salgado from committing family violence or removing Elizabeth from Presidio County without a court order. The order also granted Salgado visitation on the first and third weekend of each month but precluded overnight visitation.

Salgado filed this petition for mandamus relief on May 4, 2001. Less than two weeks later, on May 16, 2001, Nunez filed a motion to modify the decree of divorce in the county court at law, seeking to be named the sole managing conservator of Elizabeth. She alleged that Salgado had voluntarily relinquished actual care, control, and possession of the child for a period of not less than six months. In an effort to support that claim, Nunez attached the August 1998 document in which Salgado granted temporary guardianship of the child to Aurora Salgado, but she did not include any document demonstrating that Salgado had relinquished custody of Elizabeth to Nunez. On the same date, May 15, the county court at law entered temporary ex parte orders which effectively continued Nunez's custody of Elizabeth by prohibiting Salgado from removing Elizabeth from her possession. The court set the matter for hearing on June 27, 2001.

MOOTNESS

Nunez claims that the issues raised in this original proceeding are moot since the protective order will have expired on June 1, 2001, prior to the issuance of this opinion. Although it is not specifically asserted by Nunez, the filing of the motion to modify in the court of continuing jurisdiction also raises a question of mootness. Neither the Texas Constitution nor our State Legislature has vested this Court with the authority to render advisory opinions. See Tex. Const. art. II, §§ 1; Speer v. Presbyterian Children's Home and Service Agency, 847 S.W.2d 227, 229 (Tex. 1993); Olson v. Commission for Lawyer Discipline, 901 S.W.2d 520, 522 (Tex.App.--El Paso 1995, no writ). The mootness doctrine limits courts to deciding cases in which an actual controversy exists. Federal Deposit Insurance Corporation v. Nueces County, 886 S.W.2d 766, 767 (Tex. 1994); Olson, 901 S.W.2d at 522. When there has ceased to be a controversy between the litigating parties due to events occurring after judgment has been rendered by the trial court, the decision of an appellate court would be a mere academic exercise and the court may not decide the appeal. Olson, 901 S.W.2d at 522. Stated another way, if a judgment cannot have a practical effect on an existing controversy, the case is moot. Olson, 901 S.W.2d at 522. Two exceptions to the mootness doctrine currently exist: (1) the "capable of repetition" exception and (2) the "collateral consequences" exception. Olson, 901 S.W.2d at 522, citing General Land Office v. OXY U.S.A., Inc., 789 S.W.2d 569, 571 (Tex. 1990).

The "capable of repetition yet evading review" exception is applied where the challenged act is of such short duration that the appellant cannot obtain review before the issue becomes moot. OXY U.S.A., 789 S.W.2d at 571. The "collateral consequences" exception has been applied when Texas courts have recognized that prejudicial events have occurred "whose effects continued to stigmatize helpless or hated individuals long after the unconstitutional judgment had ceased to operate." Id. In the latter case, the effects are not absolved by mere dismissal of the cause as moot. Id.

Ordinarily, the expiration of an order granting injunctive or protective relief would render the issue moot. See Guajardo v. Alamo Lumber Company, 159 Tex. 225, 317 S.W.2d 725, 726 (1958)(granting of a temporary injunction to restrain a sale rendered moot); Speed v. Keys, 130 Tex. 276, 109 S.W.2d 967, 967 (1937)(temporary restraining order which expired by its own express terms rendered moot); Hermann Hospital v. Tran, 730 S.W.2d 56, 57 (Tex.App.--Houston [14th Dist.] 1987, no writ)(temporary restraining order which expired by its own terms rendered moot). Here, however, the issuance of the protective order carries a significant collateral consequence in that Nunez, having been granted care and possession of Elizabeth until June 1 by virtue of the order, has utilized the period of custody to argue that she has standing to file a suit affecting the parent-child relationship. See Tex.Fam.Code Ann. §§ 102.003(a)(9)(Vernon Supp. 2001)("An original suit may be filed at any time by . . . a person, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition."). If we determine that Judge Dehart's order is void and vacate it, a question exists whether Nunez has standing to maintain her motion to modify in suit affecting the parent-child relationship.⁴ Given this serious collateral consequence, we find that the issue before us is not moot.

STANDARD OF REVIEW

Mandamus is an extraordinary remedy available only in the most limited of circumstances. See Canadian Helicopters, Ltd. v. Wittig, 876 S.W.2d 304, 305 (Tex. 1994); Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). A court should issue mandamus only to correct a clear abuse of discretion or the violation of a legal duty when there is no other adequate remedy at law. See Canadian Helicopters, 876 S.W.2d at 305; Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985). A court abuses its discretion when it fails to properly apply the law to the undisputed facts, when it...