The Petition br Writ ol landanius is conditionally GRANTED; Opinion Filed February 13, 2013.



### In 

### The (niirt 

### uf

## Apjiczth Fitt1! Ditnct UI (!CXZi 

### at a1ht No. 05-1 3-00001 -CV 

### IN RE JAMES MATTHEW HURLEY, Relator On Appeal from the 15th Judicial District Court Grayson County, Texas Trial Court Cause No. FAI2-14l9 

### OPINION Befbre Justices Moseley, Francis and Fillmore Opinionby Justice Moseley Relator tiled this petition for writ ofmandamus complaining that the trial court ciTed in transferring his divorce and suit affecting the parent-child relationship (SAPCR) from Grayson County to Cameron County. In order to obtain mandamus relief, relatormust show both that the trial court has abused its discretion and that he has no adequate appellate remedy, In re Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding): Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). We agree that the trial court abused its discretion in transferring the case and that relator has no adequate remedy by appeal. We therefore conditionally grantthe petition forwrit ofmandamus. Relator filed his original petition for divorce and SAPCR in Grayson County on September 10, 2012. At the time, no other court had continuingjurisdiction over the children

### and relatorhad lived in Grayson County formore than ninety days, making Grayson County a proper venue for both the divorce and the SAPCR. In response, real party in interest Yvonne Hurley filed an answer containing a motion to transfer venue to Cameron County. where she lived with the minorchildren. After 

### a hearing, the Court grantedthe motion to transfervenue and 

### transferred both the divorce and the SAPCR 

### to Cameron County. Relator’s motion for 

### reconsiderationwas 

### denied. Relator and real party in interest agreethatGrayson County was apropercounty 

### forthe filing ofthe divorce proceeding. However, real 

### party in interest asserts thatthe divorce action could be transferred eitherunder TEx. PAM. CODE ANN. 

## § 155.202(b) (West 2008) (permitting transfer ofSAPCR for convenience ofparties and 

### witnesses and in the interest ofjustice) or underTEx. Civ. PRAC. &REM. 

### CODEANN. 

## § 15.002 (West2002) 

### (same). However, neitherof thesediscretionarytransferprovisions appliestothedivorce action. Thevenueprovisions ofthe civil practice and remedies code do not applyto cases 

### governed by the family code. Seein re tIabors, 276 S.W.3d 190, 194 

### (Tex. App.—Houston [ 14 th 

### Dist.] 2009, orig. proceeding) (15.002 didnotapplyto SAPCR). Moreover, the Texas Family Code makes a distinction between the proper venue ofa divorce and the proper venue ofa SAPCR. See TEx. PAM. CODE ANN. 

## § 6.301 (West 2006) (jurisdiction ofdivorce proper when petitioner has 

### been resident ofstate for six months and resident of county 

### for ninety days); 

## § 6.406 

### (requiring joinder of SAPCR 

### with divorce 

### proceedingunless 

### anothercourthas continuingjurisdiction

### ofchildren); 

## § 103.001(a) (venue

### for SAPCR is in county 

### where child resides unless 

### venue is fixed by suit for divorce). Thus 

## § 155.202(b) cannot be used to transfer relator’s divorce action to Cameron County against his 

### wishes.The trial con1 could, in other circumstances. transfer the SAPCR to Cameron County under I 552fi2(b aller iinding that county more convenient for the parties. However, it the SAPCR were transfirred to Cameron county in this case, relator would have the right to effectuate a mandatory transfer back to Grayson County. 

### Sec TEx. FAM. CODE ANN. 

### § 155 201(a) (WLSt 2008) (requiting transfer ofSAPCR to county whcre divorce is pcnding upon motion of a partv. Because the divorce is not transferrable, we find it an abuse ofthe trial court’s discretion to transfer the SAPCR to another county over relator’s objection. The family code requires that the divorce and the SAPCR, properly tiled, must proceed together in the county ofrelator’s choosing. In this case, venue mustremain in Grayson County. Because the trial court abused its discretion in transferring the case and that error cannot be remedied by appeal, we conditionally GRAN1’ relator’s petition for writ ofmandamus. The writ will issue only ifthe trial court fails to vacate its November 15, 2012 “Order Granting Transfer of Venue to Cameron County. Texas and Temporary Visitation Provision for the Children” and his December 10, 2012 order denying reconsideration ofthe November 15 order and fails to render an order denying the motion to transfer venue. We DENY relator’s motion foremergency reliefas moot.

JM MOSELEY AUST1CE

13000 1F.P05