### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00353- CV

In re Holly Pac harzina and Jennif er A . Milch

ORI GINAL P ROCEEDI NG F ROM TRAVIS CO UNTY

M E M O R A N D U M O P I N I O N

Relators Holly Pachar zina and J ennife r A. Milch f il e d a p e ti ti o n f

o r w rit of mandamus seeking relief from the district court’s May 15, 2012 temporar y order s in cause number D-1-A G-07- 000852, In the Interest of R.A.P. and A.J.P

. See Tex. R. App. P. 52.1, 52.10(a)

. For the rea son set forth below, w e will conditionally g rant the w rit in part. This proce eding arose afte r rea l party in interest Elliot Wil l, the fathe r of R.A.P. and A.J .P., the children aff

ecte d by this ca s e, fi l ed a mot ion to modify the di strict court’s prior order s g overning custody of the children. After a hear ing on Wil l’s motion to modify , at which there was evidenc e prese nted reg arding the children’ s mother’s substance- abuse problems and the children’ s situation g ener ally , the district court iss u ed its May 15, 2012 temporar y order s, finding that the children’ s circ umstances had materia lly and substantially chang ed, temporar ily modify ing various
aspec ts of conser

vatorship, and transfe rri n g t h e case to Wil liamson County , Texas. Reg arding

co n s ervatorship, the district court’s temporar y order s appointed Wil l temporar y sole manag i n g

conser vator with th e r ig

h t to d e s ig nate primary residenc e, appointed rela tors as temporar y possessory

conser vators, and appointed the children’ s mother as a temporar y possessory co nserva tor withsupervised possession. The district court’ s t em porar y order s also included a detailed possession 1 schedule and ordered drug testing of the childre n’s mother. F inally , the tempora ry order s order ed that eac h “child’s name . . . is chang ed on a perma nent basis” by adding their fathe r’s surname, Wil l. Relators filed a

petition for writ of manda mus seeking to vacate the district cour t’s May 15, 2012 temporar

y order s on the g rounds that (1) there was n o ev i d en ce o f a materia l and substantial chang e in the circ umstances of the children, (2) the temporar y order s improperly chang ed the g eog raphic restric tion on the primary residenc e of the children, (3) the court improperly applied

a pare ntal presumption, and (4) the temporar y order s improperly deter mined conser

vatorship
matters that are rese rved to a jury , including perma nently chang ing the children’ s leg al names. We
g rante d rela tors’ reque st for temporar y relief by stay ing the district court’s May 15, 2012 temporar y order s pending consideration of their petit i o n and reque sted a response from rea l party in interest Wil l, which we ha

ve since rec eived. We may issue a writ of mandamus to corr ect a trial court’s “cle ar abuse of discretion”

or vi o l at i o n o f duty imposed by law wher e no “ade quate” reme dy by appea l exis ts. See W alker

v. Pack er , 827 S.W .2d 833, 839 (Tex. 1992). “A trial court has no ‘discre tion’ in deter mining what the law is or apply ing the law to the fac ts. Thus, a clea r failure by the trial court to analy ze or apply the law corr ectly will constitute an abuse of discretion, and may result in appel l at e reve rsal by extraordinary writ.” Id. at 840. Assuming a clea r abuse of discretion in a temporar y order in a suit aff ecting the pare nt-child rela tionship, mandamus may lie on the basis that there are no appellate

The prior conser

vatorship order s had appointed each of these parties as joint manag ing 1 conser vators of the children. 2reme dies that are considere d adequa te. See Tex. Fam. Code Ann. § 105.001(e) (“Te mporary order s rende red under this section are not subje ct to inter locutory appea l.”); Litt le v. Dagget , 858 S.W .2d 368, 369 (Tex. 1993) (orig . proce eding ) (holding that mandamus was appropr iate reme dy beca use temporar y order g ranting visitation i s not appea lable). As d et ailed above, the district court’s May 15, 2012 temporar y order s include provisions that perma

nently chang e the children’ s n am es. A district court does not have the authority under the family code to issue a temporary order that eff ects a permanent name chang e. See Tex. Fa

m. Code Ann. §§ 1 0 5

. 0 0 1 , 1 5 6

. 006 (West 2008). As such, the district court’s order

was a n abuse of

discretion. See W

alker , 827 S.W .2d at 840. Acc ording ly , we c onditionally g rant rela tors’ petition for writ of mandamus in part and direc t the district court to vacate the name- chang e provisions in it s May

15, 2012 temporar

y order s. The writ will issue only if the district c ourt fails to take appr opriate a ction in acc ordanc e with this opinion.

We deny rela tors’ petition for writ of mandamus as to the re m ai n d er of the district court’s May 15, 2012 order

. We likewise lift our stay as to all portions of the order other than the name -cha

ng e provision.

__________________________________________ Bob Pembe rton, J ustice Be fore Chief J ustice Jones, J ustices Pemberton a nd Rose Filed: June 14, 2012

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