In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-11-00134-CV

______________________________

IN RE:

TONYA ALLEN

 

 

Original Mandamus Proceeding

 

Before Morriss, C.J., Carter and Moseley, JJ.

Memorandum Opinion by Justice Moseley
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MEMORANDUM OPINION

Tonya Allen petitions this Court for a writ of mandamus compelling the Honorable 

Rebecca Simpson, Judge of the County Court at Law Number One of Gregg County, to set aside 

the order entitled ―Temporary Order Following Adversary Hearing,‖ granting temporary 

managing conservatorship of Allen’s child to the Texas Department of Family and Protective 

Services (the Department), and to compel Respondent to enter an order directing the return of the 

child to Allen. 

According to Allen’s petition, her child was removed from her care and custody by the 

Department on November 21, 2011. The following day, the Department is alleged to have filed 

its ―Original Petition for Protection of a Child, for Conservatorship, and for Termination in Suit 

Affecting the Parent-Child Relationship,‖ as well as its ―Order for Protection of a Child in an 

Emergency.‖ The order of which Allen complains was entered on December 5, after an 

adversary hearing. Allen complains the trial court abused its discretion in issuing the temporary 

order because the evidence is legally and factually insufficient to support the following findings:

(1) there was a danger to the physical health or safety of the child which was caused 

by an act or failure to act of the person entitled to possession and for the child to 

remain in the home is contrary to the welfare of the child; (2) the urgent need for 

protection required the immediate removal of the child and reasonable efforts 

consistent with the circumstances and providing for the safety of the child, were 

made to eliminate or prevent the child’s removal; and (3) reasonable efforts have 

been made to enable the child to return home, but there is a substantial risk of a 

continuing danger if the child is returned home.
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Mandamus is an extraordinary remedy and will issue only when the record establishes (1) a 

clear abuse of discretion or the violation of a duty imposed by law, and (2) the absence of a clear 

and adequate remedy at law. Cantu v. Longoria, 878 S.W.2d 131, 132 (Tex. 1994); In re 

Fulgium, 150 S.W.3d 252, 254 (Tex. App.—Texarkana 2004, orig. proceeding). ―With respect to 

resolution of factual issues or matters committed to the trial court’s discretion, the reviewing court 

may not substitute its judgment for that of the trial court.‖ Walker v. Packer, 827 S.W.2d 833, 

839 (Tex. 1992). Moreover, mandamus is available only in the absence of a factual dispute of 

consequence. Id. at 839–40. When the trial court’s judgment is based on conflicting evidence 

and some of this evidence reasonably supports the court’s decision, there is no abuse of discretion. 

Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002). Where, as here, a relator seeks to 

overrule a decision based on factual issues or matters committed to the trial court’s discretion, she 

has the burden to show the trial court could have reached only one decision on the facts. Walker, 

827 S.W.2d at 839–40.

The order of the trial court recites that ―a full adversary hearing pursuant to § 262.205, 

Texas Family Code, was held in this case.‖ The order indicates Allen was present and 

represented by the attorney now filing this mandamus petition on her behalf. The trial court 

―examined and reviewed the evidence, including the sworn affidavit accompanying the petition 

and based upon the facts contained therein,‖ made the findings with which Allen takes issue. 

In order to make a determination of whether the trial court could have reached only one 
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decision on the facts and evidence presented, a review of the record of the hearing, together with 

all exhibits and the referenced sworn affidavit, would be necessary. Allen had the obligation to 

provide us with evidence in support of her claim that she is entitled to mandamus relief. No 

portion of any clerk’s record or reporter’s record has been filed with this Court. The absence of a 

mandamus record prevents us from evaluating the circumstances of this case and, consequently, 

the merits of Allen’s complaints. See TEX. R. APP. P. 52.7.

We deny the petition for writ of mandamus.

Bailey C. Moseley

Justice

Date Submitted: December 20, 2011

Date Decided: December 21, 2011