NO.
IN THE COURT OF APPEALS HOUSTON, TEXAS
In Re JessicaBachelor Original ProceedingFrom the 246th Judicial District Court of Harris County, Texas Cause No. 201457427 PETITION FOR WRIT OF MANDAMUS Stephen Lekas Attorney at Law 6001 ClintonDr., Houston, TX 77020 (7 13)671-9494 (713)671-9496 12188400 ATTORNEYFOR RELATOR Temporary relief requestedPARTY: 

### IDENTITY OF 

### PARTIESAND COUNSEL

Jessica Bachelor Relator (Petitionerin trial court) Erica Bachelor Real Party in Interest (Respondent in trial court) HON. CharleyPrine Respondent (Judge of Trial Court) ATTORNEY: Stephen Lekas TX Bar# 12 188400 Attorney at Law 6001 Clinton Dr. Houston, TX 77020 Tel#: (713)671-9494 Fax#: (713)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 3Ogth Judicial District Court 1 115 Congress Houston, TX 77002 Tel: (713) 274-4500

### TABLE OF 

### CONTENTS Page



## ....................................... IDENTIFY OF PARTIES AND COUNSEL 2 INDEX OF AUTHORITIES 

## ......................................................... 4 STATEMENTOF THE CASE 

## ...................................................... 5



## .......................................... STATEMENTOF THE JURISDICTION 5 ISSUE PRESENTED 

## ................................................................. 5. 6



## ........................................................... STATEMENTOF 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 

## ............................................................................ 18INDEX OF AUTHORITIES Cases In Re Calderon,



## .............................. 96 S.W. 3rd 7 1 1 (Tex. App. -Tyler 2003) DallasFire InsuranceCompanyv. 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. -SanAntonio 2012) Grozierv. L-B Sprinkler & Plumbing Repair, 744 S.W. 2nd 306 (Tex. App. -~ortk~okh 1988, writ denied) 

## .... Hoffmanv. Hoffman, 821 S.W. 2d 3 (Tex. App. -Forth Worth 1992,no writ) 

## ............ MO. P. R. R. Co.,



## ............................................. 998 S.W. 2d 212(Tex. 1999) In Re Nicolette Milton,



## .......... 420 S.W. 3rd, 245 (Tex. App. -Houston (1 Dist) 20 13) In Re Prudential Ins, Co. ofAm.



## ................................. 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) 

## .................................................................. 5STATEMENT 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 isreferredto 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 10-2-2014App. 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 2-20-2015 by Judge Prine App. 16. STATEMEMENTOF JURISDICTION This Court has jurisdiction to hear this original proceeding under Texas GovernrnentCode $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 Countytrial 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 ofTex. Fam. Code 

## 5 103.OO1.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 12-4-2014App. 5. On 12-12-2014 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 1-23-2015App. 6 & 7. Relator amended her pleadings to show residency in the County of 90 days ADD. 11.The plea of abatementwas granted by Judge Prine on 1-27-2015 ADD.12. The Motion to transfer filed by the real party in interest on 12-12-2014, was granted on 2-20-2015 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 affectingparent-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 satisfythe residence requirementwas appropriate for mandamusrelief.Id at 67 ISSUE 1. The Harris Countytrial Court abused its discretion in ordering an abatement App. 12 in its earlier suit APP. 1, subsequent to a prior abatement by the Smith Countytrial 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 custodyproceeding in Smith County on 10-8-20 14App. 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 1-27-2015App. 12. On 1-23-2015, 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 eitherparty can meet the residency requirements. See also Hoffman v. Hoffman, 82 1 S. W. 2d 3, 5-6 (Tex.App. - no writ) holding that 9the trial court should abate until Petitioner meets residence requirements at which point Petitioner may file an amended Petitioner showing compliance with requirementsId. At 252. The trial Court in a second abatement has no discretionto 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 transferApp. 16 the case to Smith County, on 2-20-2015. The Motion to Transferwas also filed 12-12-2014App. 7. Issue2 Judge Prine of the Harris County 246" Trial Court abused his discretion in ordering a Motion to Transfer

### Am. 16 after granting an abatementApp. 8.Judge Prine granted the real parties in interest abatement on 1-27-2015 App. 8, RR1:8 (entry of order 1-27-2015). Then on 2-20-2015 granted the real party in - interestMotion to transfer App. 16,RR1:7 (motion to reconsider 2-3-2015). 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 306,310 (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 thejudgment of the Court.. 

## . and otherwise submitting to thejurisdiction 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 aruling on the plea in abatement on 1-27-2015App. 8,24 days before the ruling on the Motion to Transfer APP.16, thus waiving the Motion to Transfer. IssueNo. 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 ofthe 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 ofdiscretion. PRAYER Wherefore, Relator Jessica Bachelor requests that this Court issue a writ of mandamus directing Judge Prine ofthe 246'bJudicial District Court ofHarris County, Texasto vacate his order of abatement granted 1-27-2015 and order to transfer granted 2-20-2015, under causeno. 2014-57427. Relator requests general relief.- 

### STEPHEN LEKAS 6001CLINTON

### DRIVE HOUSTON, TX 77020 TEL# (7 13) 671-9494 FAX# (7 13) 671-9496 TBA# 121 88400 slekas@,aol.com Attorney for RelatorRULE 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 competentevidenceincluded 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 246thJudicial 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 attorneyin this case. 

# *%*CERTIFICATE OF CONFERENCE As required by Texas Rule ofAppellate 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 ofthis motion with the following results: Matthew Skillen,Attorney forEric Bachelor.

I STEPHENLEKAS

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

DateCERTIFICATE 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: (713)229-8555 Fax: (713) 48 1-8800 TB# 24041926 mattew@skillernfirrn.com Trial CourtJudge via hand delivery Hon. CharleyPrine 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 " STEPHENLEKASAPPENDIX 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, SmithCounty, Texas C App 4 Transcript Abatement hearing SmithCounty,Texas 

## ..................... D



## ................................ App 5 Orderto 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 JessicaBachelor's Responseto Plea in Abatement,



## .......................................................... Harris County, Texas H App 9 Jessica Bachelor Responseto Motion to Transfer, Harris County, Texas.. 

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

## .......... J App 1 1 Jessica Bachelor second amendedpetition, Harris County, Texas 

## ....... K App 12 JudgePrines order granting Eric Bachelorplea in abatement 

## ............ L App 13 Erik Bachelor's Motion to Reconsider transfer, Motionto dismiss and



## .................................. Motion for additional fees and sanctions.. M App 14 JessicaBachelorresponseto Eric Bachelor's Motionto reconsider Transfer,to dismiss and for additional fees and sanctions 

## ............... N App 15 Jessica Bachelor supplemental responseto Eric Bachelor's



## .............................................................. Motion to Transfer 0 App 16 Judge Prines order transferring the caseto SmithCounty 

### ................. P