In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-20-00342-CV

___________________________

Original Proceeding

43rd District Court of Parker County, Texas

Trial Court No. CV18-1157

Before Kerr, Birdwell, and Bassel, JJ.

Memorandum Opinion by Justice Kerr

IN RE R.H., Relator
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MEMORANDUM OPINION

Relator R.H. seeks mandamus relief from a trial court order denying her 

petition to transfer a suit affecting the parent-child relationship from Parker County 

to Tarrant County. Because the trial court clearly abused its discretion and because 

Relator lacks an adequate remedy by appeal, we conditionally grant mandamus relief.

I. Background

Relator and real party in interest K.H. (RPI) are the parents of B.M.H. and 

B.W.H. Relator sued RPI for divorce in Parker County. While that divorce proceeding

was pending, RPI and B.M.H. moved to Tarrant County. On November 28, 2018, the 

trial court signed a final divorce decree ending the marriage of Relator and RPI. In the 

decree, the trial court appointed both parents as joint managing conservators of the 

children, but it granted RPI the exclusive right to designate the primary residence of 

B.M.H.1

On May 9, 2019, Relator filed a petition to modify the parent-child relationship 

as to B.M.H. and filed a motion to transfer the suit from Parker County to Tarrant 

County because B.M.H. had resided in Tarrant County for at least six months.2 RPI 

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Relator was granted the exclusive right to designate the primary residence of 

B.W.H.

2

In her response, RPI argues that Relator’s petition for writ of mandamus

should be denied because Relator did not file a copy of the petition to modify as part 

of the mandamus record. Relator, however, later supplemented the mandamus record 

to include a copy of the petition to modify. See Tex. R. App. P. 52.7(b) (permitting 

supplementation of the mandamus record).
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filed a controverting affidavit in response to the motion to transfer averring that 

B.M.H. had not resided outside of Parker County for at least six months. At a hearing 

on the motion to transfer, however, RPI testified that she and B.M.H. had been living 

in Tarrant County since at least September 20, 2018. At the hearing, RPI’s attorney 

argued that the sixth-month residency period did not begin until the trial court signed 

the final divorce decree on November 28, 2018. The trial court denied the motion to 

transfer, and this mandamus proceeding eventually followed.

II. Discussion

We grant the extraordinary relief of mandamus only when the trial court has 

clearly abused its discretion and the relator lacks an adequate appellate remedy. In re 

Team Rocket, L.P., 256 S.W.3d 257, 259 (Tex. 2008) (orig. proceeding); see In re State, 

355 S.W.3d 611, 613 (Tex. 2011) (orig. proceeding).

A trial court abuses its discretion if it reaches a decision so arbitrary and 

unreasonable that it is a clear and prejudicial error of law or if it fails to correctly 

analyze or apply the law to the facts. In re H.E.B. Grocery Co., 492 S.W.3d 300, 302–

03 (Tex. 2016) (per curiam) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839–

40 (Tex. 1992) (orig. proceeding); see also State v. Naylor, 466 S.W.3d 783, 793 (Tex. 

2015) (orig. proceeding) (“A writ of mandamus is an extraordinary remedy available 

‘to correct an action of a trial judge who commits an abuse of discretion or a violation 

of a clear duty under the law.’” (quoting State v. Walker, 679 S.W.2d 484, 485 (Tex. 
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1984) (orig. proceeding))). We defer to a trial court’s factual determinations that have 

evidentiary support, but we review the trial court’s legal determinations de novo. In re 

Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding).

The transfer of a suit affecting the parent-child relationship to a county where 

the child has lived for at least six months is mandatory under Family Code Section 

155.201. In re Wheeler, 177 S.W.3d 350, 352 (Tex. App.—Houston [1st Dist.] 2005, 

orig. proceeding); In re Powell, 79 S.W.3d 814, 816 (Tex. App.—Fort Worth 2002, orig. 

proceeding); see Tex. Fam. Code Ann. § 155.201(b). Section 155.201(b) provides in 

pertinent part:

If a suit to modify . . . is filed in the court having continuing, exclusive 

jurisdiction of a suit, on the timely motion of a party the court 

shall . . . transfer the proceeding to another county in this state if the 

child has resided in the other county for six months or longer.

Tex. Fam. Code Ann. § 155.201(b).

A trial court “has no discretion but to transfer if the child has resided in 

another county for six months or more.” Powell, 79 S.W.3d at 816. In Tippy v. Walker, 

the Texas Supreme Court held that the six-month residency period begins to run 

when the child’s actual residency in a different county begins, even if the divorce 

decree is signed after the child begins residing in a different county. 865 S.W.2d 928, 

929 (Tex. 1993) (orig. proceeding) (construing prior version of Section 155.201); see 

Powell, 79 S.W.3d at 817 (discussing Tippy).
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Section 155.201 “recognizes that transfer as to some, but not all, children may 

be appropriate” and “clearly contemplates severance in those instances.” In re Yancey; 

550 S.W.3d 671, 675 (Tex. App.—Tyler 2017, orig. proceeding) (per curiam) (mem. 

op.) (quoting In re T.J.L., 97 S.W.3d 257, 264 (Tex. App.—Houston [14th Dist.] 2002, 

no pet.)). A trial court “must transfer the proceedings affecting a child to the county 

where the child resides, even if it retains jurisdiction over another child of the

marriage who does not live in the transferee county.” Yancey, 550 S.W.3d at 

675 (citations and internal quotations omitted). “[S]everance is the proper procedure 

for implementing the transfer, even without a motion to sever.” Id. (citing T.J.L., 

97 S.W.3d at 265).

Here, RPI testified at the hearing on Relator’s motion to transfer that B.M.H. 

had been residing in Tarrant County since at least September 20, 2018. The record

shows that Relator filed her petition to modify and her motion to transfer venue on 

May 9, 2019—over seven months after B.M.H. moved to Tarrant County. We reject 

the argument made by RPI in the trial court that the six-month residency period did

not begin until the trial court entered the final divorce decree.3 See Tippy, 865 S.W.2d 

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In her response, RPI does not repeat her argument raised in the trial court 

suggesting that the six-month residency period did not begin until the trial court 

entered the final divorce decree, nor does she contend that the evidence does not 

show that B.M.H. had been residing in Tarrant County for at least six months prior to 

Relator filing the petition to modify. Instead, RPI argues that the lengthy delay 

between the trial court’s denial of the motion to transfer and Relator’s filing of her 

petition for writ of mandamus acts to bar Relator’s petition. In discussing the 

timeliness of a mandamus complaint, we have held that “[e]quity aids the diligent and 
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at 929. Because B.M.H. had been residing in Tarrant County for at least six months 

when Relator filed her petition to modify, the trial court had a mandatory duty to 

transfer the case as to B.M.H. to Tarrant County, and it abused its discretion by 

denying Relator’s motion to transfer. See Tex. Fam. Code Ann. § 155.201(b); Powell, 

79 S.W.3d at 817 (“The trial court had a mandatory duty to transfer this suit affecting 

the parent-child relationship to Collin County because the children had resided in 

Collin County for six months; therefore, it abused its discretion by denying the 

motion to transfer.”).

Texas courts have consistently held that mandamus is proper when a trial court 

refuses to compel mandatory transfer in a suit affecting the parent-child relationship. 

not those who slumber on their rights” and that “it is well-settled that mandamus 

relief may be denied where a party inexplicably delays asserting its rights.” In re 

Hinterlong, 109 S.W.3d 611, 620 (Tex. App.—Fort Worth 2003, orig. proceeding) (op. 

on reh’g) (citations and internal quotations omitted). We have also said, however, that 

in determining whether a relator’s delay in seeking mandamus relief should bar the 

issuance of the writ, we may analogize to the doctrine of laches, which requires that 

the party asserting the doctrine show both an unreasonable delay and harm resulting 

to it because of the delay. In re Roxsane R., 249 S.W.3d 764, 771 (Tex. App.—Fort 

Worth 2008, orig. proceeding); Hinterlong, 109 S.W.3d at 620. In her response, RPI did 

not argue or make any showing that she was harmed by any delay by Relator in filing 

the mandamus. Moreover, this proceeding presents a clear abuse of discretion because 

the trial court had no choice but to transfer the case to Tarrant County, thus making a 

laches-type bar less relevant under these circumstances. Cf. Walker, 827 S.W.2d at 

840 (stating that a trial court has no discretion in determining what the law is or 

applying the law to the facts); Condom Sense, Inc. v. Alshalabi, 390 S.W.3d 734, 748 (Tex. 

App.—Dallas 2012, no pet.) (applying the abuse of discretion standard to trial court’s 

laches decision but noting that a trial court has no discretion in determining what the 

law is or applying the law to the facts). Accordingly, we reject RPI’s argument that

Relator’s petition should be barred because of delay. See Roxsane R., 249 S.W.3d at 

771–72; Hinterlong, 109 S.W.3d at 620.
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See, e.g., Proffer v. Yates, 734 S.W.2d 671, 673 (Tex. 1987) (orig. proceeding); In re 

Whitworth, No. 05-19-00677-CV, 2019 WL 2710747, at *2 (Tex. App.—Dallas June 

28, 2019, orig. proceeding) (mem. op.); Wheeler, 177 S.W.3d at 352; Powell, 79 S.W.3d 

at 816–17; In re Sanchez, 1 S.W.3d 912, 914 (Tex. App.—Waco 1999, orig. proceeding).

“In such cases, remedy by direct appeal is inadequate because ‘[p]arents and children 

who have a right under the mandatory venue provisions to venue in a particular 

county should not be forced to go through a trial that is for naught.’”4 Whitworth, 

2019 WL 2710747, at *2 (quoting Proffer, 734 S.W.2d at 673).

III. Conclusion

Because the trial court clearly abused its discretion and Relator has no adequate 

appellate remedy, Relator is entitled to mandamus relief. Accordingly, we 

conditionally grant a writ of mandamus and direct the trial court to vacate its order 

denying the motion to transfer venue, and in its stead, to issue an order severing and 

transferring the suit as to B.M.H. to Tarrant County. See Tex. R. App. P. 52.8(c); 

Yancey, 550 S.W.3d at 676. Our writ will issue only if the trial court fails to comply.

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In her response, RPI argues that we should deny Relator’s petition because 

Relator did not argue or cite authority demonstrating that she lacks an adequate 

appellate remedy. We disagree. Relator stated in her petition that the trial court’s 

denial of her motion to transfer venue was addressable by mandamus, and she 

pointed us to Tippy, a case where the Texas Supreme Court granted mandamus relief 

following a trial court’s refusal to transfer a suit affecting the parent-child relationship.

See Tippy, 865 S.W.2d at 929.
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/s/ Elizabeth Kerr

Elizabeth Kerr

Justice

Delivered: December 31, 2020