Proffer v. Yates
| Decision Date | 15 July 1987 |
| Docket Number | No. C-6140,C-6140 |
| Citation | 734 S.W.2d 671 |
| Parties | Sally PROFFER, Relator, v. The Honorable John G. YATES, Judge, et al., Respondents. |
| Court | Texas Supreme Court |
Bluford B. Sanders, Jr., Sanders, Moffeit & Associates, P.C., El Paso, for relator.
Gary Howard, Samuel Bayless, Leon and Bayless, San Antonio, for respondents.
This is an original mandamus action. Relator, Sally Proffer, seeks a writ of mandamus directing the Honorable John G. Yates, sitting as Judge of the 150th Judicial District Court of Bexar County, to render an order transferring to the district court of El Paso County a cause styled In the Interest of Jack Paul Leon, Jr., A Child. We conditionally grant the writ.
Sally and Jack Leon, Sr. were divorced in Bexar County in 1974. Sally was named managing conservator of the parties' minor child. In 1981 the district court modified the decree by appointing Sally and Jack joint managing conservators. A further modification of the decree occurred in 1982, when Sally's former husband Richard Starnes was named possessory conservator. This order also provided that Jack "shall delegate that the domicile of the minor child ... shall be with his mother who presently resides" in Bay City, Texas.
In September 1986 Sally filed a motion to modify child support and a motion to transfer venue to the El Paso County district court. Sally alleged, and it is uncontested, that the minor child had lived in El Paso with her for over fifteen months. She argued that the trial court had a mandatory duty to transfer the cause to El Paso. She relied on TEX.FAM.CODE ANN. § 11.06(b), which provides that if the child has resided in another county for six months or longer, "the court shall transfer the proceeding to that county."
The Bexar County district judge denied Sally's request to transfer venue. Sally then filed an original mandamus proceeding in the Court of Appeals for the Fourth Supreme Judicial District of Texas. That court wrote an opinion in which it recognized that the trial court is under a mandatory duty to transfer under the circumstances present in this case. 723 S.W.2d 345. However, the court of appeals denied Sally's petition for writ of mandamus on the ground that she has an adequate remedy by appeal. We disagree.
The writ of mandamus has been available to compel mandatory transfer in suits affecting the parent-child relationship for a number of years. In Cassidy v. Fuller, 568 S.W.2d 845 (Tex.1978), this court granted mandamus relief to compel transfer of such a suit to a county in which the children had resided for more than six months. In granting mandamus relief, the court recognized the mandatory nature of section 11.06(b), the section which provides that the trial court "shall" transfer when the child has lived for over six months in the county to which transfer is requested. In 1983 this court issued its most recent opinion granting mandamus relief to compel mandatory transfer in a suit affecting the parent-child relationship. In Leonard v. Paxson, 654...
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...held that an appeal is inadequate to protect the rights of children and parents in family law situations. See, e.g., Proffer v. Yates, 734 S.W.2d 671, 673 (Tex.1987). See also Hutchings v. Biery, 723 S.W.2d 347, 350 (Tex.App.--San Antonio 1987, orig. proceeding). "Justice demands a speedy r......
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