Opinion
No. 05-09-01464-CV
Opinion Filed January 12, 2010.
On Appeal from the 255th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 08-17783-S.
Before Justices LANG, MURPHY, and MYERS.
MEMORANDUM OPINION
Relator contends the trial court erred in entering an order awarding interim attorney's fees in favor of real party in interest pursuant to section 105.001(a)(5) of the family code because there was no showing the award was for the safety and welfare of the child. Tex. Fam. Code Ann. § 105.001(a)(5) (Vernon Supp. 2009).
The evidence shows real party in interest, the custodial parent, had no money and no job, and she was unable to pay attorney's fees in the suit to adjudicate conservatorship and child support. It is the trial court's function to weigh the evidence, and where the record contains legally sufficient evidence in support of the trial court's decision, mandamus will not lie. See Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding); see also Marcus v. Smith, No. 01-09-00321-CV, 2009 WL 4854755, at *7 (Tex. App.-Houston [1st Dist.] Dec. 17, 2009, no pet. h.) (reviewing a temporary order under section 109.001(a)(5) awarding attorney's fees as necessary to preserve and protect the safety and welfare of the child during the pendency of the appeal).
Based on the record before us, we conclude relator has not shown he is entitled to the relief requested. See Tex. R. App. P. 52.8(a); Walker, 827 S.W.2d at 837. Accordingly, we DENY relator's petition for writ of mandamus.