Opinion
No. 10-05-00251-CV
Opinion delivered and filed July 13, 2005.
Original Proceeding.
Petition denied.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA. (Chief Justice GRAY concurs in the result).
MEMORANDUM OPINION
Melinda Routh seeks a writ of mandamus directing Respondent, the Honorable Kenneth Davis, Judge of the County Court of Hill County, to vacate an order transferring a contested guardianship matter to a district court. We will deny the requested relief.
Routh filed a motion in the underlying proceeding requesting the assignment of a statutory probate court judge under section 5(b) of the Probate Code. Instead however, Respondent transferred the case to a district court. Routh contends that Respondent abused his discretion because he transferred the case to district court after she filed her motion for assignment of a statutory probate court judge. See In re Vorwerk, 6 S.W.3d 781, 785 (Tex.App.-Austin 1999, orig. proceeding).
To establish an entitlement to mandamus relief, a relator must show that the respondent " clearly abused" his discretion. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004) (orig. proceeding) (emphasis added).
Here, Routh cited section 5(b) of the Probate Code as the basis for her request. However, section 5(b) does not apply to guardianship proceedings. Rather, it applies to "probate matters." See TEX. PROB. CODE ANN. § 5(b) (Vernon Supp. 2004-2005). Section 606(b) of the Probate Code is the comparable provision applicable to guardianship proceedings. Id. § 606(b) (Vernon Supp. 2004-2005).
According to section 3(bb) of the Probate Code, a "probate matter" is "a matter or proceeding relating to the estate of a decedent." TEX. PROB. CODE ANN. § 3(bb) (Vernon 2003).
Because Routh did not cite the proper statute in her motion, we cannot say that Respondent clearly abused his discretion. See Prudential Ins. Co., 148 S.W.3d at 135. Accordingly, we deny the petition.