NO. 

IN THE 

COURT OF APPEALS 

HOUSTON, TEXAS 

In Re Jessica Bachelor 

Original Proceeding From the 246th 

Judicial District Court of Harris County, Texas 

Cause No. 201457427 

PETITION FOR WRIT OF MANDAMUS 

Stephen Lekas 

Attorney at Law 

6001 Clinton Dr., Houston, TX 77020 

(7 13) 67 1-9494 

(7 13) 67 1-9496 

12188400 

ATTORNEY FOR RELATOR 

Temporary relief requested 
PARTY: 

IDENTITY OF PARTIES AND COUNSEL 

Jessica Bachelor 

Relator 

(Petitioner in trial court) 

Erica Bachelor 

Real Party in Interest 

(Respondent in trial court) 

HON. Charley Prine 

Respondent 

(Judge of Trial Court) 

ATTORNEY: 

Stephen Lekas 

TX Bar# 12 188400 

Attorney at Law 

6001 Clinton Dr. 

Houston, TX 77020 

Tel#: (7 13) 67 1-9494 

Fax#: (7 13) 671 -9496 

slekas@aol.com 

Matthew Skillern 

Attorney at Law 

701 N. Post Oak, Suite 207 

Houston, TX 77024 

Tel#: (713) 229-8555 

Tel#: (713) 481-8800 

TB# 24041926 

matthew@skillernfirm.com 

3 Ogth Judicial District Court 

1 1 15 Congress 

Houston, TX 77002 

Tel: (713) 274-4500 
TABLE OF CONTENTS 

Page 

IDENTIFY OF PARTIES AND COUNSEL ....................................... 2 

INDEX OF AUTHORITIES ......................................................... 4 

STATEMENT OF THE CASE ...................................................... 5 

STATEMENT OF THE JURISDICTION .......................................... 5 

ISSUE PRESENTED ................................................................. 5. 6 

STATEMENT OF FACTS ........................................................... 7 

ARGUMENT AND AUTHORITIES ........................................ 8-12 

PRAYER -RELIEF REQUESTED ................................................ 12 

CERTIFICATION OF FACTS AND VERIFICATION ........................ 13. 14 

CERTIFICATE OF SERVICE ...................................................... 16 

CERTIFICATE OF CONFERENCE .............................................. 15 

CERTIFICATE OF COMPLIANCE .............................................. 15 

APPENDIX ............................................................................ 18 
INDEX OF AUTHORITIES 

Cases 

In Re Calderon, 

96 S.W. 3rd 7 1 1 (Tex. App. - Tyler 2003) .............................. 

Dallas Fire Insurance Company v. Davis, 

893 S.W. 2nd 288 (Tex. App. - Forth Worth 1995) ................... 

In Re Elizabeth Ann Lambdin, 

(No. 07-03-0328-CV-8-20-03)(Tex. App. - Amarillo 2003) ......... 

In Re Green, 

385 S.W. 3rd 665 (Tex. App. - San Antonio 2012) ................... 

Grozier v. L-B Sprinkler & Plumbing Repair, 

744 S.W. 2nd 306 (Tex. App. - ~ortk~okh 1988, writ denied) .... 

Hoffman v. Hoffman, 

82 1 S.W. 2d 3 (Tex. App. - Forth Worth 1992, no writ) ............ 

MO. P. R. R. Co., 

998 S. W. 2d 2 12 (Tex. 1999) ............................................. 

In Re Nicolette Milton, 

420 S.W. 3rd, 245 (Tex. App. - Houston (1 Dist) 20 13) .......... 

In Re Prudential Ins, Co. of Am. 

145 S.W. 3d 124, 135-136 (Tex 2004) ................................. 

In Re Rome, 

1 82 S. W. 3rd 424 (Tex. App. - Eastland 2005) ........................ 

Page 

8 

10 

10,ll 

8 

11 

9 

8 

899 

8 

8 

STATUTES 

Tex. Fam. Code 

5 103.001 ................................................................. 6, 12 

Tex. Gov. Code 

5 22.221 (b) .................................................................. 5 
STATEMENT OF THE CASE 

Relator Jessica Bachelor submits this petition for writ of mandamus 

complaining of the order of Honorable Charley Pine presiding Judge of the 246& 

Judicial District Court of Harris County, Texas. For Clarity, relator is referred to 

as Jessica Bachelor; respondent the Honorable Charley Prine is referred to by name 

and the real party in interest is referred to as Eric Bachelor. This is a suit for 

divorce and child custody proceedings filed by relator in the 246" Judicial District 

Court of Harris County, Texas on 10-2-2014 App. 1 ., Cause No. 201457427. The 

orders complained of were orders of abatement granted on 1-27-201 5 Ap. 12 and 

an order to transfer the case granted on 2-20-201 5 by Judge Prine App. 16. 

STATEMEMENT OF JURISDICTION 

This Court has jurisdiction to hear this original proceeding under Texas 

Governrnent Code $22.221(b). 

Issues Presented 

1. The Harris County trial Court abused its discretion in ordering an abatement 

A. 12 in its earlier suit, subsequent to a prior abatement by the Smith 

County trial Court App. 5, where the later divorce action was filed App. 2. 

2. The Harris County 246" Trial Court abused its discretion in ordering a 

Motion to Transfer ADD. 16 after granting an abatement. 
3. The Harris County 246" Trial Court abused its discretion in ordering a 

Motion to transfer App. 16 after the relator and her child resided in Harris 

County over 90 days, in violation of Tex. Fam. Code 5 103 .OO 1. 
STATEMEMENT OF FACTS 

A suit for divorce and custody proceeding was filed by the relator Jessica 

Bachelor on 10-2-2014 App. 1 in Harris County, Texas where she and her child 

lived. Subsequently Eric Bachelor the real party in interest filed a divorce and 

custody proceeding in Smith County on 10-8-2014 Am. 2. Thereafter Jessica 

Bachelor relator file a plea in abatement App. 3 in Smith County that was granted 

on 12-4-20 14 App. 5. 

On 12- 12-20 14 the real party in interest Eric Bachelor then filed a plea in 

abatement in Harris County, Texas along with a Motion to Transfer the case to 

Smith County on 1-23-2015 App. 6 & 7. Relator amended her pleadings to show 

residency in the County of 90 days ADD. 11. The plea of abatement was granted by 

Judge Prine on 1-27-20 15 ADD. 12. The Motion to transfer filed by the real party 

in interest on 12- 12-20 14, was granted on 2-20-20 15 by Judge Prine App. 16. 
ARGUMENT AND AUTHORITIES 

To be entitled to mandamus relief the trial Court must clearly abuse its 

discretion and petition lacks an adequate appeal. In re Prudential Ins Co of Am 

145 S.W. 3d 124,135-136 (Tex. 2004). 

The Texas Supreme Court has held that reversible error alone is insufficient 

to warrant mandamus relief and that generally venue decisions are incidential trial 

rulings correctable by appeal. In Re Rome 182 S.W. 3d 424, 426 (Tex.App. - 

Eastland 2005). The Texas Supreme Court has made an exception however for 

cases involving suits affecting parent-child relationship, reasoning that the need to 

expediously resolve custody and support issues makes ordinary appeal inadequate. 

M0.P.R.R. Co. 998 S.W. 2d 212,215 (Tex 1999) In Re Nicolette Milton, 420 S.W. 

3d 245,252 (Tex.App. - Houston (1'' Dist) 2013). In re Calderon 96 S.W. 3d 71 1, 

715 (Tex.App. - Tyler 2003) ("Remedy by regular appeal though available is 

frequently inadequate to protect the rights of parents and children to trial in a 

particular venue.") The sensitive child custody and visitation issues involved in 

this case render ordering appellate review of the venue issue inadequate In Re 

Nicolette Milton at 253. In Re Green, 385 S.W. 3d 665, 671 (Tex. App. San 

Antonio 2012), the San Antonio Court of Appeals found the Petitioner failure to 

satisfy the residence requirement was appropriate for mandamus relief. 
Id at 67 

ISSUE 1. 

The Harris County trial Court abused its discretion in ordering an abatement 

App. 12 in its earlier suit APP. 1, subsequent to a prior abatement by the Smith 

County trial Court App. 15, where the later divorce action was filed App. 1. 

In this case, the Relator filed a suit for divorce and child custody in Harris 

County, Texas on 10-2-2014 APP. 1, prior to the real party in interest filing a 

divorce and child custody proceeding in Smith County on 10-8-20 14 App. 2. The 

case in Smith County was abated on 12-4-201 4 App. 5. Subsequently on 12-1 2- 

2014, upon Motion by the Real party in Interest App. 6, the Respondent Judge 

Prine abated the case in Harris County on 1-27-20 15 App. 12. On 1-23-20 15, prior 

to the hearing, the Relator had amended her pleading APP. 11 showing the residing 

requirement had been met. In fact, by the time the abatement hearing was had, the 

residency requirement had been met, as over 90 days had passed. The Court even 

agreed. RRI: 5-6 (entry of order 1-27-2015); RR1: 5 (motion to reconsider 2-3- 

20 15). 

In Re Milton, 420 S.W. 3d 245,252 (Tex.App. - Houston (1" Dist) 2013) the 

Court states, typically when the residence requirements have not been met the trial 

court abates the suit so that either party can meet the residency requirements. See 

also Hoffman v. Hoffman, 82 1 S. W. 2d 3, 5-6 (Tex.App. - no writ) holding that 

9 
the trial court should abate until Petitioner meets residence requirements at which 

point Petitioner may file an amended Petitioner showing compliance with 

requirements Id. At 252. 

The trial Court in a second abatement has no discretion to refuse to abate the 

second in favor of the first. Likewise the first Court has no discretion to abate it in 

favor of the second action. See Tex. R. Civ. P 39, 97 (a); Dallas Fire Insurance 

Company v. Davis, 893 S.W. 2d 288,292 (Tex. App. - Forth Worth 1995). Thus 

Judge Prine of the 246" Court of Harris County, Texas abused his discretion by 

indefinitely abating App. 5, RR1:5 (entry of order 1-27-2015) a case first filed 

App. 1, where the impediment to abatement had been removed App. 11, thus 

abating a case filed first App. 1, in favor of a case in Smith County filed second 

App. 2, which was previously abated App. 5. Judge Prine of the 246" trial Court 

then granted a Motion to transfer App. 16 the case to Smith County, on 2-20-2015. 

The Motion to Transfer was also filed 12- 12-2014 App. 7. 

Issue 2 

Judge Prine of the Harris County 246" Trial Court abused his discretion in 

ordering a Motion to Transfer Am. 16 after granting an abatement App. 8. 
Judge Prine granted the real parties in interest abatement on 1-27-20 15 App. 

- 8, RR1:8 (entry of order 1-27-2015). Then on 2-20-2015 granted the real party in 

interest Motion to transfer App. 16, RR1:7 (motion to reconsider 2-3-201 5). 

It is well settled that complaints about venue may be waive expressly or 

impliedly. In re Elizabeth Ann Lambdin (Tex. App. - Amarillo 2003) (NO. 07-03- 

0328 CV, August 2003). The latter occurs when the party takes some action 

inconsistent with its position on the venue issue. Grozier v. L-B Sprinkler & 

Pumbin Repair, 744 S.W. 2d 306,3 10 (Tex.App. -Forth Worth 1988, writ denied). 

In Re Elizabeth Lambdin, Mother waived Motion to Transfer venue by 

participating in hearing to resolve Motion to enforce, before obtaining a ruling on 

the Motion to Transfer. In Re Elizabeth Ann Lambdin (Tex. App. - Amarillo 

2003) (NO. 07-03-0328 CV, August 2003) See Id. 

When a party does not first seek a ruling on a plea of privilege its benefits 

may be waived by submitting for the Courts determination matter on a plea in 

abatement.. . or invoking the judgment of the Court.. . and otherwise submitting to 

the jurisdiction of the Court. Id. Grozier v. L-B Sprinkler & Pumbin Repair, 744 

S.W. 2d 306,310. 

Here the real party in interest filed a plea in abatement and Motion to 

Transfer at the same time on 12-12-2014 App. - 6 &7, but proceeded to obtain a 
ruling on the plea in abatement on 1-27-2015 App. 8,24 days before the ruling on 

the Motion to Transfer APP. 16, thus waiving the Motion to Transfer. 

Issue No. 3 

Judge Prine signed an order transferring the case to Smith County on 2-20- 

2015 App. 16, after the Relator and her child had resided in Harris County over 

140 days App. 1 1 in direct violation of Tex. Fam. Code 103 .OO 1, which requires 

the case remain in the County of the residence of the child. $103.001 of the Texas 

Family Code states "the original suit shall be filed in the County where the child 

resides, unless:" None of the exceptions apply. The child and her mother lived in 

Texas for six months and Harris County over 90 days App. 11. The child's father 

resided in Smith County. Judge Prime's action in transferring the case was an abuse 

of discretion. 

PRAYER 

Wherefore, Relator Jessica Bachelor requests that this Court issue a writ of 

mandamus directing Judge Prine of the 246'b Judicial District Court of Harris 

County, Texas to vacate his order of abatement granted 1-27-2015 and order to 

transfer granted 2-20-2015, under cause no. 2014-57427. Relator requests general 

relief. 
- 

STEPHEN LEKAS 

6001 CLINTON DRIVE 

HOUSTON, TX 77020 

TEL# (7 13) 67 1-9494 

FAX# (7 13) 67 1-9496 

TBA# 121 88400 

slekas@,aol.com 

Attorney for Relator 
RULE 52.3 (J) CERTIFICATION OF FACTS 

AND VERIFICATION OF RECORD 

Before me, the undersigned authority, on this day personally appeared 

Stephen Lekas, one of the counsel for Relator JESSICA BACHELOR, and upon 

his oath, stated that (i) he is the attorney for Relator in this cause in the underlying 

suit, No. 2014-57427, in the 246" Judicial District of Harris County, Texas; (ii) he 

has reviewed Relator's Petition for Writ of Mandamus and concluded that every 

factual statement in the petition is supported by competent evidence included in the 

appendix and record, and (iii) he has personal knowledge that the items in the 

appendix and record are true and correct copies of documents material to Relator's 

claims and are either pleadings that are on file in the underlying suit, hearing 

transcripts and exhibits, or orders signed by the trial court in the underlying suit in 

this cause in the underlying suit, No. 2014-57427, in the 246th Judicial District of 

Harris County, Texas. 

STEPHEN LEKAS 

+& SUBSCRIBED AND SWORN TO BEFORE ME on this $3 day of 

THE STATE OF % \ e~c& - 
My Co mission Expires: 2-zq- ZOI6 

I the Notary blic in this case, do hereby certify I am not an attorney in this case. *%* 
CERTIFICATE OF CONFERENCE 

As required by Texas Rule of Appellate Procedure 10.l(a)(5), I certify that I 

have conferred, or made a reasonable attempt to confer, with all other parties 

which are listed below about the merits of this motion with the following results: 

Matthew Skillen, Attorney for Eric Bachelor. 

I 

STEPHEN LEKAS 

Date 

3-a 7 -zo)< 

CERTIFICATE OF COMPLIANCE 

As required by Texas Rule of Appellate Procedure 52.10(a), I certify that I 

have notified or made a diligent effort to notify all parties by expedited means 

(such as by telephone or fax) that this motion for temporary relief has been or will 

be filed. 

- 

STEPHEN LEKAS 

Date 
CERTIFICATE OF SERVICE 

I hereby certify that a true and correct copy of the foregoing document was 

mailedlemailed to the opposing counsel and Trial Judge by hand delivery on 

Real Party in Interest via CMRR/email 

Matthew Skillern 

Attorney at Law 

701 N. Post Oak, S-207 

Houston, TX 77024 

Tel: (7 13)229-8555 

Fax: (713) 48 1-8800 

TB# 24041926 

mattew@skillernfirrn.com 

Trial Court Judge via hand delivery 

Hon. Charley Prine 

246th Judicial District Court 

201 Caroline 

Houston, TX 77002 

Tel: 71 32~c/!i/50 C) 
CERTIFICATE OF COMPLIANCE 

My name is Stephen Lekas, attorney for Relator in Interest, Jessica 

Bachelor. Pursuant to Texas Rule of Appellate Procedure 9.4(i); I hereby certify 

that this brief contains 25 35- words. This is a computer-generated document 

created in Microsoft Word, using 14-point typeface for all text. In making this 

certificate of compliance, I am relying on the word count provided by the software 

used to prepare the document. 

I I " 

STEPHEN LEKAS 
APPENDIX 

Page 

App 1 Original petition for Divorce, Harris County Texas ....................... A 

App 2 Original petition for Divorce, Smith County, Texas ...................... B 

App 3 Motion to Abate, Smith County, Texas ..................................... C 

App 4 Transcript Abatement hearing Smith County, Texas ..................... D 

App 5 Order to Abatement, Smith County, Texas. ................................ E 

App 6 Eric Bachelor Plea in Abatement, Harris County Texas ................. F 

App 7 Eric Bachelor Motion to Transfer, Harris County, Texas ................ G 

App 8 Jessica Bachelor's Response to Plea in Abatement, 

Harris County, Texas .......................................................... H 

App 9 Jessica Bachelor Response to Motion to Transfer, 

Harris County, Texas.. .......................................................... I 

App 10 Jessica Bachelor Motion to Reconsider, Harris County, Texas .......... J 

App 1 1 Jessica Bachelor second amended petition, Harris County, Texas ....... K 

App 12 Judge Prines order granting Eric Bachelor plea in abatement ............ L 

App 13 Erik Bachelor's Motion to Reconsider transfer, Motion to dismiss and 

Motion for additional fees and sanctions.. .................................. M 

App 14 Jessica Bachelor response to Eric Bachelor's Motion to reconsider 

Transfer, to dismiss and for additional fees and sanctions ............... N 

App 15 Jessica Bachelor supplemental response to Eric Bachelor's 

Motion to Transfer .............................................................. 0 

App 16 Judge Prines order transferring the case to Smith County ................. P