IN THE

TENTH COURT OF APPEALS

No. 10-16-00156-CV

IN RE ELIZABETH HARPER

Original Proceeding

MEMORANDUM OPINION

Relator Elizabeth Harper seeks mandamus relief pertaining to the trial court’s 

denial of her plea to the jurisdiction in the underlying original SAPCR filed by Dawn and 

Michael Caldwell.1 Harper’s plea to the jurisdiction alleges that the Caldwells lack 

standing under Family Code subsection 102.003(a)(9), which provides that an original 

suit may be filed at any time by “a person, other than a foster parent, 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.” TEX. FAM. CODE ANN. § 102.003(a)(9) 

 

1 Briefly, the factual background is that Harper gave birth to G.C.H. in Oklahoma, and under an agreement 

with the Caldwells, they took G.C.H. from the hospital, ostensibly for an anticipated adoption, but Harper 

changed her mind and sought possession of G.C.H. When she gained possession of G.C.H. through 

Oklahoma proceedings, she returned to Texas with him.
In re Harper Page 2

(West Supp. 2016). Harper argues that the Caldwells did not timely file their suit within 

90 days of the end of the period in which they had “actual control” of G.C.H. and thus 

lack standing under subsection 102.003(a)(9).

The Caldwells had been appointed guardians of G.C.H. in Oklahoma, but in 

Harper’s mandamus proceeding in the Supreme Court of Oklahoma, the Oklahoma 

district court was directed to remove the Caldwells as G.C.H.’s guardians in a September 

14, 2015 order that is filed-marked September 15, 2015. The Oklahoma Supreme Court’s 

order does not mention care, control, or possession of G.C.H.

In an order file-marked September 16, 2015, the Oklahoma district court removed 

the Caldwells as guardians and revoked their guardianship letters, but it too does not 

mention care, control, or possession of G.C.H. The reporter’s record from a September 

22, 2015 hearing on Harper’s petition for writ of habeas corpus reflects that the Oklahoma 

district court signed a writ of assistance on September 17, 2015, but that writ is not in the 

record, and nothing in the record otherwise indicates if it was served on the Caldwells or 

the content of that writ, including whether it states anything pertaining to the care, 

control, or possession of G.C.H.

The reporter’s record of the September 22 hearing on Harper’s habeas petition 

indicates that Harper’s petition for writ of habeas corpus was filed in Oklahoma district 

court on September 21, 2015 and that the writ of habeas corpus issued that day. While 

the writ of habeas corpus is not in the record, it is obvious from the reporter’s record that 

the writ of habeas corpus required the Caldwells to produce G.C.H. at the September 22

hearing. The only mention of service of the writ of habeas corpus on the Caldwells is a 
In re Harper Page 3

statement by the Caldwells’ attorney during the September 22 hearing that the writ had 

been received “today.” The reporter’s record further reflects that Harper obtained 

possession of G.C.H. at that hearing.

Harper contends that, based on the above events and Oklahoma orders, the 90-

day time period in which the Caldwells had to file their SAPCR in Texas began to run on 

either September 14 or 15 and that the Caldwells had to file their SAPCR no later than 

December 14 or 15, but they filed it on December 17. Harper asserts that when the 

Oklahoma Supreme Court and the Oklahoma district court entered their respective 

orders on September 15 and September 16 pertaining to the guardianship of G.C.H., the 

Caldwells’ continued possession of G.C.H. ceased to be “legal” (or lawful) and they thus 

did not have “actual control” of G.C.H. as of one of those dates. Accordingly, Harper 

contends that the trial court abused its discretion by denying her plea to the jurisdiction, 

which asserted that the Caldwells lack standing because they filed suit after the 90-day 

period in subsection 102.003(a)(9) had expired.

Mandamus is an extraordinary remedy that is available only when 

the trial court has clearly abused its discretion and there is no adequate 

remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36, 

137 (Tex. 2004) (orig. proceeding). A clear abuse of discretion occurs when 

a trial court “reaches a decision so arbitrary and unreasonable as to amount 

to a clear and prejudicial error of law.” Walker v. Packer, 827 S.W.2d 833, 839 

(Tex. 1992) (orig. proceeding). A trial court has no discretion in determining 

what the law is or applying the law to the facts. Id. Therefore, a clear failure 

by the trial court to analyze or apply the law correctly will constitute an 

abuse of discretion, and may result in appellate reversal by extraordinary 

writ. Id. at 840. 

The improper denial of a plea to the jurisdiction is generally not 

reviewable by mandamus because it involves a question of law that can be 

addressed by ordinary appeal. See In re State Bar of Tex., 113 S.W.3d 730, 734 
In re Harper Page 4

(Tex. 2003) (orig. proceeding). However, mandamus review is appropriate 

when there is a jurisdictional dispute in a proceeding involving 

conservatorship issues. See Geary v. Peavy, 878 S.W.2d 602, 603 (Tex. 1994) 

(orig. proceeding); In re Green, 352 S.W.3d 772, 774 (Tex. App.—San Antonio 

2011, orig. proceeding). This is due to the unique and compelling 

circumstances presented when the trial court decides issues of 

conservatorship. See Geary, 878 S.W.2d at 603. Because temporary orders 

are not appealable, mandamus is an appropriate remedy when a trial court 

abuses its discretion in issuing temporary orders in a SAPCR. See In re 

Derzapf, 219 S.W.3d 327, 335 (Tex. 2007) (orig. proceeding).

A party seeking conservatorship of a child must have standing to do 

so. In re McDaniel, 408 S.W.3d 389, 396 (Tex. App.—Houston [1st Dist.] 

2015, orig. proceeding). Because standing is implicit in the concept of 

subject matter jurisdiction, it is a threshold issue in a conservatorship 

proceeding. In re N.L.D., 344 S.W.3d 33, 37 (Tex. App.—Texarkana 2011, no 

pet.). A party’s lack of standing deprives the court of subject matter 

jurisdiction and renders subsequent trial court action void. In re Smith, 260 

S.W.3d 568, 572 (Tex. App.—Houston [14th Dist.] 2008, orig. proceeding). 

Whether a trial court has subject matter jurisdiction is a question of law, 

which we review de novo. In re K.D.H., 426 S.W.3d 879, 882 (Tex. App.—

Houston [14th Dist.] 2014, no pet.).

In re Lankford, --- S.W.3d ---, ---, 2016 WL 4447697, at *2 (Tex. App.—Tyler Aug. 24, 2016, 

no pet. h.). 

Additionally, the relator bears the burden of providing a sufficient record to 

establish a right to mandamus relief. See In re Schuttpelz, 10-15-00072-CV, 2015 WL

1967834, at *2 (Tex. App.—Waco Apr. 30, 2015, orig. proceeding) (mem. op.).

In Lankford, the Tyler court addressed the contention that “actual control” to 

establish standing under subsection 102.003(a)(9) means “legal control.”2 Lankford, ---

 

2

In Lankford, the court discussed In re K.K.C., 292 S.W.3d 788 (Tex. App.—Beaumont 2008, orig. proceeding), 

noting that there the

court opined that “‘control,’ as used in subsection (a)(9), must mean something more than

the control implicit in having care and possession of the child if the word is to be given

effect and treated as more than surplusage.” Id. at 792. Therefore, “[t]he word must be
In re Harper Page 5

S.W.3d at ---, 2016 WL 4447697, at *3. After surveying the split in authority among Texas 

courts on the issue,3 the Tyler court agreed with the Austin court in Jasek: 

[W]e conclude that, had the legislature intended “control” to mean 

“legal control” instead of “control” in its ordinary sense, it could easily have 

defined it as such. Or it could have defined “actual control” to mean “legal 

control.” But it did neither. Therefore, we agree with the reasoning in Jasek

and hold that its definition of “actual control” reflects the legislature’s 

intent when it enacted the “control” requirement of section 102.003(a)(9). 

Id., --- S.W.3d at ---, 2016 WL 4447697, at *3.

Harper also cites to a common-law exception to standing that is similar to the 

“legal control” argument: “The courts have carved out one exception to this standing 

rule. If possession is maintained in violation of a valid court order, that possession does 

not confer standing to bring suit affecting the parent-child relationship.” In re S.S.G., 208 

S.W.3d 1, 3 (Tex. App.—Amarillo 2006, pet. denied) (citing Perez v. Williamson, 726 S.W.2d 

634, 636 (Tex. App.—Houston [14th Dist.] 1987, no writ)). 

Assuming without deciding that either the “legal control” theory or the Perez

exception applies, we conclude that, based on the record before us, Harper has not shown 

 

understood in the context of the rights, duties, and responsibilities of a parent.” Id. The

court then concluded that “control” refers to “the power or authority to guide and manage,

and includes the authority to make decisions of legal significance for the child.” Id. at 793.

Lankford, --- S.W.3d at ---, 2016 WL 4447697, at *4.

3 Compare Jasek v. Tex. Dep’t of Fam. & Prot. Servs., 348 S.W.3d 523 (Tex. App.—Austin 2011, no pet.); In re 

K.G., No. 05-14-01171-CV, 2016 WL 3265215, at *6 (Tex. App.—Dallas June 13, 2016, no pet.) (mem. op.); In 

re K.S., No. 14-15-00008-CV, 2016 WL 1660366, at *4 (Tex. App.—Houston [14th Dist.] Apr. 26, 2016, pet. 

denied); In re B.A.G., No. 11-11-00354-CV, 2013 WL 364240, at *10 (Tex. App.—Eastland Jan. 13, 2013, no 

pet.) (mem. op.); and In re K.K.T., No. 07-11-00306-CV, 2012 WL 3553006, at *4 (Tex. App.—Amarillo Aug. 

17, 2012, no pet.) (mem. op.) with In re K.K.C., 292 S.W.3d 788 (Tex. App.—Beaumont 2008, orig. 

proceeding); In re H.S., No. 02-15-00303-CV, 2016 WL 4040497, at *5 (Tex. App.—Fort Worth July 28, 2016, 

pet. filed) (mem. op.); In re N.I.V.S., No. 04-14-00108-CV, 2015 WL 1120913, at *5 (Tex. App.—San Antonio 

Mar. 11, 2015, no pet.) (mem. op.).
In re Harper Page 6

that the Caldwells had illegal control of G.C.H.—or control of him in defiance of a court 

order—such that they did not file their SAPCR after the expiration of 90 days from when 

their allegedly illegal or defiant control began. 

As noted above, neither the Oklahoma Supreme Court’s September 15 order nor 

the Oklahoma district court’s September 16 order pertaining to the Caldwell’s 

guardianship of G.C.H. mention the care, control, or possession of G.C.H. And while the 

record refers to the Oklahoma district court’s issuance of a writ of assistance on 

September 17, that writ is not in the record, and nothing else in the record indicates that 

it pertains to the Caldwells’ care, control, or possession of G.C.H. and their possible 

defiance of the writ.

In conclusion, Harper has not provided a sufficient record that would establish 

her right to mandamus relief under her legal theory. Accordingly, we deny the petition 

for writ of mandamus.

REX D. DAVIS

Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

(Chief Justice Gray concurs in the judgment denying the petition for writ of 

mandamus. A separate opinion will not issue. He notes, however, that he would 

deny the petition solely on the merits that have nothing to do with the sufficiency 

of the record. See Chief Justice Gray’s Dissent to Request for Response in this 

proceeding issued on June 2, 2016.)

Petition denied

Opinion delivered and filed October 26, 2016

[OT06]