IN THE

TENTH COURT OF APPEALS

No. 10-14-00076-CV

IN RE TIMOTHY BRENT CLAIBORNE

Original Proceeding

MEMORANDUM OPINION

Timothy Brent Claiborne filed a petition for writ of mandamus requesting this 

Court to compel the Honorable Judge William Bosworth, the judge of the 413th District 

Court of Johnson County, to vacate the order denying Claiborne’s motion to transfer 

venue. We conditionally grant the writ.

Standard of Review

A writ of mandamus properly issues when the relator demonstrates that the trial 

court abused its discretion and there is no adequate remedy by appeal. In re Gulf 

Exploration, LLC, 289 S.W.3d 836, 842 (Tex.2009). A trial court abuses its discretion if it 

reaches a decision so arbitrary and unreasonable as to constitute a clear and prejudicial 

error of law, or if it clearly fails to correctly analyze or apply the law. In re Cerberus 
In re Claiborne Page 2

Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex.2005); Walker v. Packer, 827 S.W.2d 833, 839 

(Tex.1992). 

Background Facts

The trial court entered a final decree of divorce between Timothy Claiborne and 

Ruby Claiborne on July 11, 2008. From 2008 to the present, the trial court has 

considered numerous motions to modify and motions for enforcement filed by the 

parties. On October 4, 2013, Timothy filed a motion to modify and a motion to transfer 

venue. On October 28, 2013, Ruby filed an affidavit controverting the motion to transfer 

venue, and she also filed a motion for enforcement. 

Motion to Transfer

Timothy argues that the trial court erred in denying the motion to transfer venue 

and that the trial court abused its discretion in failing to conduct a hearing on the facts 

raised in the controverting affidavit. The Texas Family Code provides for the 

mandatory transfer of venue:

(a) On the filing of a motion showing that a suit for dissolution of 

the marriage of the child's parents has been filed in another court and 

requesting a transfer to that court, the court having continuing, exclusive 

jurisdiction of a suit affecting the parent-child relationship shall, within 

the time required by Section 155.204, transfer the proceedings to the court 

in which the dissolution of the marriage is pending. The motion must 

comply with the requirements of Section 155.204(a).

(b) If a suit to modify or a motion to enforce an order is filed in the 

court having continuing, exclusive jurisdiction of a suit, on the timely 

motion of a party the court shall, within the time required by Section 155. 

204, transfer the proceeding to another county in this state if the child has 

resided in the other county for six months or longer.
In re Claiborne Page 3

(c) If a suit to modify or a motion to enforce an order is pending at 

the time a subsequent suit to modify or motion to enforce is filed, the 

court may transfer the proceeding as provided by Subsection (b) only if 

the court could have transferred the proceeding at the time the first 

motion or suit was filed.

TEX. FAMILY CODE ANN. § 155.201 (West 2014). In the motion to transfer venue, Timothy 

alleges that the child has resided in Tarrant County during the six-month period 

preceding the commencement of the suit and that venue is proper in Tarrant County 

pursuant to Section 155.201.

Ruby filed a controverting affidavit contesting the motion to transfer venue 

stating that her residence is on “the border of Tarrant and Johnson counties.” If a 

controverting affidavit is filed contesting the motion to transfer, the trial court is 

required to hold hearing on the motion. See TEX. FAM. CODE ANN. § 155.204(e) (West 

2014). Only evidence pertaining to the transfer may be taken at the hearing. TEX. FAM.

CODE ANN. § 155.204(f) (West 2014). 

On January 22, 2014, the trial court considered the motion to transfer venue filed 

by Timothy as well as other motions filed by Ruby. The record indicates that the trial 

court denied the motion to transfer venue without hearing evidence pertaining to the 

motion. The trial court did not hear any evidence concerning the residence of the child 

or concerning the facts alleged in the controverting affidavit before denying the motion 

to transfer venue. The trial court abused its discretion in failing to conduct a hearing to 

consider evidence relating to the motion to transfer venue. An order transferring or 

refusing to transfer the proceeding is not subject to an interlocutory appeal. TEX. FAM.
In re Claiborne Page 4

CODE ANN. § 155.204(h) (West 2014). Therefore, Timothy has no adequate remedy by 

appeal.

Conclusion

We conditionally grant Timothy Claiborne’s writ of mandamus and direct the 

trial court to vacate the order denying Claiborne’s motion to transfer venue and to 

conduct a hearing to receive evidence pertaining to the motion to transfer venue. The 

writ will issue only if the trial court fails to do so. 

AL SCOGGINS

Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Writ conditionally granted

Opinion delivered and filed May 8, 2014

[OT06]