Opinion
03-24-00398-CV
06-21-2024
In re T. F.
ORIGINAL PROCEEDING FROM HAYS COUNTY
Before Chief Justice Byrne, Justices Kelly and Theofanis
MEMORANDUM OPINION
Darlene Byrne, Chief Justice
T.F. files this petition for writ of mandamus seeking to require the Hays County District Court to hold a de novo hearing immediately in a suit affecting the parent-child relationship. Based on the record before us, we deny the petition.
"Mandamus relief is an extraordinary remedy requiring the relator to show that (1) the trial court clearly abused its discretion and (2) the relator lacks an adequate remedy by appeal." In re Kappmeyer, 668 S.W.3d 651, 654 (Tex. 2023) (orig. proceeding). When a mandamus petition is based on the allegation that the trial court has failed to rule on a properly filed motion, the relator must establish that the trial court (1) had a duty to rule on a motion, (2) was asked to rule on the motion, and (3) failed or refused to do so. See In re Dimas, 88 S.W.3d 349, 351 (Tex. App.-San Antonio 2002, orig. proceeding); In re Whitfield, No. 03-18-00564-CV, 2018 WL 4140735, at *1 (Tex. App.-Austin Aug. 29, 2018, orig. proceeding) (mem. op.). Relators must provide an appellate court with a record sufficient to establish their right to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992). This record should include a copy of the motion on which ruling is sought or any supporting materials so that we may review whether the motion was properly filed or brought to the court's attention. In re Blakeney, 254 S.W.3d 659, 662 (Tex. App.-Texarkana 2008, no pet.) ("The trial court is not required to consider a motion unless it is called to the court's attention."); see also Tex. R. App. P. 52.3(k)(1)(A) (requiring a relator to file a record containing sworn copies "of any order complained of, or any other document showing the matter complained of").
T.F. asserts that the trial court must hold a de novo hearing on issues underlying a February 23, 2024 Order in Suit Affecting the Parent-Child Relationship ("Order"). The Family Code provides as follows;
(a) A party may request a de novo hearing before the referring court by filing with the clerk of the referring court a written request not later than the third working day after the date the party receives notice of the substance of the associate judge's report as provided by Section 201.313.
(b) A request for a de novo hearing under this section must specify the issues that will be presented to the referring court. The de novo hearing is limited to the specified issues.
. . . .
(e) The referring court, after notice to the parties, shall hold a de novo hearing not later than the 30th day after the date the initial request for a de novo hearing was filed with the clerk of the referring court.Tex. Fam. Code § 201.317. Relator asserts that she filed a timely request for de novo review (Request). But neither the Order nor the Request is in the appendix to the petition. Assuming that Relator received notice of the Order on February 23, 2024, the request for de novo review was due on February 26, 2024. Even if Relator filed a timely Request on February 26, 2024, as asserted in the petition, the absence of the Order and the Request from the mandamus record prevents us from assessing whether the Request satisfied statutory requisites to prompt the referring court's duty to hold the de novo hearing. The Motion to Set Hearing filed May 20, 2024 (Motion) is in the appendix to the petition, but its May filing date did not meet the deadline for prompting the duty to hold the de novo hearing. See id.
Because the mandamus record before us does not provide a basis on which we can review whether Relator invoked the trial court duty to hold a de novo hearing, we cannot conclude that the trial court abused its discretion by failing to do so. See Tex. R. App. P. 52.3(k)(1)(A); In re Blakeney, 254 S.W.3d at 662.
We deny the petition for writ of mandamus.