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

Opinion by Justice Moseley

Relator tiled this petition for writ of mandamus 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, relator must 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 grant the petition for writ of mandamus.

Relator filed his original petition for divorce and SAPCR in Grayson County on

September 10, 2012. At the time, no other court had continuing jurisdiction over the children
and relator had lived in Grayson County for more 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 minor children. After a hearing, the Court granted the motion to transfer venue

and transferred both the divorce and the SAPCR to Cameron County. Relator’s motion for

reconsideration was denied.

Relator and real party in interest agree that Grayson County was a proper county for the

filing of the divorce proceeding. However, real party in interest asserts that the divorce action

could be transferred either under TEx. PAM. CODE ANN. § 155.202(b) (West 2008) (permitting

transfer of SAPCR for convenience of parties and witnesses and in the interest ofjustice) or

under TEx. Civ. PRAC. & REM. CODE ANN. § 15.002 (West 2002) (same). However, neither of

these discretionary transfer provisions applies to the divorce action. The venue provisions ofthe

civil practice and remedies code do not apply to cases governed by the family code. See in re

tIabors, 276 S.W.3d 190, 194 (Tex. App.—Houston [14th Dist.] 2009, orig. proceeding) (15.002

did not apply to SAPCR).

Moreover, the Texas Family Code makes a distinction between the proper venue of a

divorce and the proper venue of a SAPCR. See TEx. PAM. CODE ANN. § 6.30 1 (West 2006)

(jurisdiction of divorce proper when petitioner has been resident of state for six months and

resident of county for ninety days); § 6.406 (requiring joinder of SAPCR with divorce

proceeding unless another court has continuing jurisdiction of children); § 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 55 2fi2( 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 of SAPCR to county whcre divorce is pcnding upon

motion of a partv. Because the divorce is not transferrable, we find it an abuse of the 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 of relator’s choosing. In this case, venue must remain 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 of mandamus. The

writ will issue only if the trial court fails to vacate its November 1 5, 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 of the November 15 order

and fails to render an order denying the motion to transfer venue. We DENY relator’s motion

for emergency relief as moot.

JM MOSELEY

AUST1CE

13000 1F.P05