In Re Marcus D'Shun Lewis v. the State of Texas

IN THE
TENTH COURT OF APPEALS

No. 10-24-00046-CV

IN RE MARCUS LEWIS

Original Proceeding

From the County Court at Law
Navarro County, Texas
Trial Court No. C22-30681-CV

DISSENTING OPINION

The petition asks this Court to compel the trial court to enforce this Court's

mandate from an earlier appeal. In re G.D.L., No. 10-23-00011-CV, 2023 Tex. App. LEXIS

6798 (Tex. App.—Waco Aug. 30, 2023, no pet.). We do not enforce mandates. Rather, we

enforce our judgments. So, if that semantic nuance is the reason the Court is denying the

petition, we should say that so that the parties can change the label and we can reach the

merits of a potentially very problematic conundrum.

Of course, the Court could also be taking the view that we can enforce our

judgment by a motion filed in the original appeal in which the judgment was rendered.
Thus, with an adequate remedy available, the Court could have concluded that

extraordinary relief by granting a petition for a writ of mandamus is inappropriate.

However, generally mandamus has been determined to be appropriate when the trial

court is taking any action that is void. In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000).

But, if the reason that the Court is denying the petition for a writ of mandamus is because

there is another available method to obtain relief, we should explain why relief by way

of mandamus is being denied.

Or, we could do what courts do when a document is mislabeled, but it is clear as

to what it actually is. In this particular instance, the petition for a writ of mandamus is in

reality and in effect a motion to enforce this Court's judgment. We should.

This Court's judgment in the earlier appeal was that "the action brought by [Aunt]

is dismissed." That "action" was docketed in the trial court as No. C22-30681-CV and the

appeal was docketed in this Court as No. 10-23-00011-CV. The "action" was dismissed

because, regardless of how well-intentioned she may be, the Court determined that Aunt

did not have standing to interfere in the life of her niece. 1

While I will concede that "action" is sometimes an imprecise term that can cause

confusion, in this instance there can be no doubt what this Court's judgment

accomplished. It dismissed the proceeding that had been pending in the trial court and

had been appealed. It was a rendition by this Court. It was not a remand for further

1Aunt did not file a brief as the appellee or otherwise appear in the original appeal, which has exacerbated
the complications overall.

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action. It was not a remand to dismiss the action. It was not a remand for further

proceedings consistent with the opinion. This Court's judgment was a final judgment

which disposed of the trial court proceeding because we rendered the judgment the trial

court should have rendered; a dismissal of the action. The opinion of the Court explains

the procedural background and the legal analysis of why the action was dismissed. The

Court had determined that Aunt did not have standing under the Family Code to seek a

modification of the parent-child relationship or to seek a transfer to Navarro County of

the SAPCR pending in Dallas County. That is the ratio decidendi for the Court's rendition

of a dismissal of the action; the reason for the decision.

Aunt did not seek review of the judgment rendered by this Court. Thus, this

Court's mandate issued to enforce this Court's judgment on October 31, 2023. And on the

next day, right or wrong, Aunt attempted to start another case in the same trial court

proceeding in the Navarro County Court at Law that this Court had dismissed.

G.D.L. is Relator's (Father) daughter. Father and Mother were divorced in a

proceeding in the 256th District Court of Dallas County. After the divorce, G.D.L.'s

mother untimely passed away. It is undisputed that at that time the Dallas County

District Court had continuing, exclusive jurisdiction of their child, G.D.L.

The current controversy started when, in Dallas County, Aunt brought a petition

to modify the parent-child relationship between Father and G.D.L. and a motion to

transfer the suit, aka "action" or "case," to Navarro County, asserting that she had

standing to file the petition and that the child had resided in Navarro County for over six

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months. Father was properly served with the petition and the motion to transfer but did

not file a controverting affidavit challenging the motion to transfer. See TEX. FAM. CODE

§155.204(d).

Maybe the trial court should have done more to determine if Aunt had standing to

file the petition to modify and motion to transfer and thus actively determine whether it

had jurisdiction of Aunt's request, but at that point, based on the information it had before

it, the Dallas County district court was statutorily required to transfer the proceeding to

Navarro County pursuant to Section 155.201(b). TEX. FAM. CODE §155.201(b) ("the court

shall … transfer the proceeding…"). Thus, I do not fault the Dallas County district court

for what it did, notwithstanding that we have subsequently determined Aunt did not

have standing and thus the trial court did not have the jurisdiction to grant Aunt's

requested relief.

The court in Navarro County signed an order that purported to modify the parent-

child relationship, giving Aunt the right to establish the child's domicile. Father appealed

that judgment to this Court in the original appeal. This Court determined that Aunt did

not have standing and rendered judgment dismissing the "action."

Once this Court's judgment became final, there was no longer anything pending

in Navarro County. Aunt has suffered a determination by this Court that she did not

have standing to bring the petition to modify the parent-child relationship or the motion

to transfer that were originally filed in Dallas County.

The difficulty has arisen due to the lack of clarity in the Family Code regarding

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how the courts or the parties "undo" an erroneous transfer. That difficulty was

exacerbated by this Court's judgment which did not address the geographic status of the

case at the conclusion of the original appeal. Since we determined that Aunt did not have

standing at the time she filed the motion to transfer, the trial court's order transferring

the proceeding to Navarro County, like the Navarro County Court at Law's judgment

purporting to modify the conservatorship, is void. Our judgment rendered a dismissal

of everything in Navarro County. Therefore, the 256th District Court of Dallas County is

the trial court that still has continuing, exclusive jurisdiction of the child and any suit

affecting the parent-child relationship between Father and G.D.L. should be filed in that

court.

Accordingly, anything the trial court in Navarro County now attempts to do

regarding the parent-child relationship between Father and G.D.L. is void. We should

treat the filing presented by Father for what it is, a motion to enforce our judgment, and

as necessary to the enforcement of our judgment, we should now expressly declare that

continuing, exclusive jurisdiction of a suit affecting the parent-child relationship between

Father and G.D.L. is in the 256th District Court of Dallas County. Because the Court

denies the relief to which Father is entitled, I respectfully dissent.

TOM GRAY
Chief Justice

Dissenting opinion delivered and filed August 30, 2024

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