In Re Jacob Aaron Sneed v. the State of Texas

IN THE
TENTH COURT OF APPEALS

No. 10-24-00080-CV

IN RE JACOB AARON SNEED

Original Proceeding
______________

From the 249th District Court
Johnson County
Trial Court No. DC-D202400034

MEMORANDUM OPINION

In this original proceeding, Relator, Jacob Aaron Sneed, complains of the trial

court's denial of his petition for habeas corpus by which he attempted to obtain custody

of his son. He further contends the trial court abused its discretion by determining it has

temporary emergency jurisdiction under the Uniform Child Custody Jurisdiction and

Enforcement Act and issuing a temporary order denying him possession of his son. We

deny in part, and conditionally grant in part, Relator's petition for writ of mandamus.
Background

Relator and his wife, Alicia, had resided together in Texas but, in 2013, Relator and

their minor son, A.W.J.S., moved to Missouri while Alicia remained in Texas. Relator and

Alicia were divorced in Missouri in 2016. Relator was awarded sole legal and physical

custody of A.W.J.S., who was six years old at the time of the divorce. Relator and Alicia

were awarded joint legal and physical custody of their other minor son, P.J.W.B, who was

one year old at the time of the divorce. Relator was named sole residential custodian of

A.W.J.S., while Alicia was named residential custodian of P.J.W.B. Each parent had the

right of visitation. Neither was required to pay child support.

Alicia married Kelvin Michael Burgess and they were living in Johnson County,

Texas. The Texas Department of Family and Protective Services notified Relator to

inform him that Alicia died in December 2023. On January 8, 2024, Burgess filed an

Original Petition in Suit Affecting the Parent-Child Relationship in Johnson County, trial

court cause number DC-D202400021. He sought to be temporary sole managing

conservator for P.J.W.B.

Seeking possession of P.J.W.B. pursuant to the 2016 Missouri divorce decree,

Relator filed his petition for writ of habeas corpus in the same district court in Johnson

County, trial court cause number DC-D202400034. A January 18, 2024 docket entry

indicates the court denied the petition. Burgess filed an amended petition requesting the

court exercise temporary emergency jurisdiction and seeking to modify the Missouri

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custody order. Thereafter, in cause number DC-D2024-00021, Relator contested

jurisdiction and asked the court to reconsider his petition for habeas corpus.

The court granted Burgess's temporary restraining order, denying Relator access

to P.J.W.B. At the hearing, the court opened by stating, "Court calls DC-C202400021" and

heard testimony from both sides. The trial court considered evidence on Relator's motion

to reconsider his petition for habeas corpus during the hearing on temporary orders in

Burgess's suit affecting the parent-child relationship.

The day after the hearing, the court signed its written findings in cause number

DC-D202400021. It found that Relator relinquished possession of P.J.W.B. for almost nine

years prior to filing the petition for habeas corpus and denied Relator's request to return

P.J.W.B. to Relator. The court took temporary emergency jurisdiction of the child under

Texas Family Code Section 152.204, ordered P.J.W.B. to remain in Johnson County, and

stayed the proceedings until the Missouri court determines if it will retain jurisdiction.1

Petition for Writ of Mandamus

In his petition for writ of mandamus, Relator contends the trial court abused its

discretion by denying his petition for writ of habeas corpus concerning the proper legal

1 A petition for writ of mandamus attacking a lower court order must be accompanied by a certified or
sworn copy of the order complained of, or any other document showing the matter complained of. TEX. R.
APP. P. 52.3(k)(1)(A). Here, neither the order denying Sneed's petition for habeas corpus, nor the order
denying his motion for reconsideration of his petition, nor the emergency temporary order appears in the
record. However, the trial court's orders are adequately reflected in the record, making a formal written
order unnecessary. See TEX. R. APP. P. 52.3(k)(1)(A); In re Mata, 212 S.W.3d 597, 604 (Tex. App.—Austin
2006) (orig. proceeding).

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custodian of P.J.W.B. Furthermore, Relator asserts the trial court did not have temporary

emergency jurisdiction over P.J.W.B. and, therefore, the trial court's temporary order is

void.2

STANDARD OF REVIEW

Mandamus is an extraordinary remedy, available only when the relator can show

both that (1) the trial court clearly abused its discretion or violated a duty imposed by

law; and (2) there is no adequate remedy by way of appeal. In re Ford Motor Co., 165

S.W.3d 315, 317 (Tex. 2005) (orig. proceeding) (per curiam). A trial court has no discretion

in determining what the law is or in applying the law to the particular facts. See Walker

v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). A clear failure by the trial

court to analyze or apply the law correctly constitutes an abuse of discretion. Id. Where

a relator seeks to overrule a decision based on factual issues or matters committed to the

trial court's discretion, relator has the burden to show the trial court could have reached

only one decision on the facts. Id. at 839-40. In regard to a factual issue, we may not

substitute our judgment for that of the trial court. Id. at 839. Because temporary orders

are not appealable, mandamus is an appropriate remedy when a trial court abuses its

2At our request, Burgess, the real party in interest, filed a response in which he asserts he wishes to nonsuit
his case because he and Relator have agreed the Missouri court should hear this case. However, this Court
has received no documentation supporting these assertions or indicating any further actions have occurred
in the trial court.

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discretion in issuing temporary orders in a suit affecting the parent-child relationship. In

re Derzapf, 219 S.W.3d 327, 335 (Tex. 2007) (orig. proceeding) (per curiam).

Petition for Writ of Habeas Corpus

In his first issue, Relator complains of the denial of his petition for habeas corpus.

He asserts that he established a legal right to possession of P.J.W.B. because he is the

biological father and through the Missouri court order that named Relator and the child's

mother joint custodians. He further argues that, in the absence of a dire emergency, the

court was required to grant his petition. Finally, Relator contends that he did not

voluntarily relinquish possession of P.J.W.B.

If the right to possession of a child is governed by a court order, the court in a

habeas corpus proceeding involving the right to possession of the child shall compel

return of the child to the relator only if the court finds that the relator is entitled to

possession under the order. TEX. FAM. CODE ANN. § 157.372(a). Chapter 157 provides

exceptions where: (1) the relator has by consent or acquiescence relinquished actual

possession and control of the child for not less than six months or (2) there is a serious

immediate question concerning the welfare of the child. Id. §§ 157.373(a), 157.374.

Assuming Relator demonstrated the bare legal right to possession of the child,

issuance of a writ of habeas corpus should be automatic pursuant to Section 157.372(a)

unless one of the statutory exceptions apply. See Schoenfeld v. Onion, 647 S.W.2d 954, 955

(Tex. 1983) (orig. proceeding) (per curiam). The trial court found that Relator has

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relinquished possession of the child for almost nine years prior to filing the petition for

habeas corpus. We consider whether the record supports this finding which would

satisfy the exception in Section 157.373(a).

At the hearing, Relator testified that he and his older son moved to Missouri in

2013. His wife remained in Texas. Relator has seen P.J.W.B. only once in his life for about

two hours. That was during the divorce proceedings in 2015 when P.J.W.B. was a year

or year and one half old. The divorce was granted in March 2016. During the divorce

proceedings, Relator's attorney attempted unsuccessfully to find Alicia. After the divorce

was granted, Relator never found out where she lived. He did not have a valid phone

number for her. Regarding his attempts to find her, he explained:

We kind of searched you know we checked Facebook things
like that to see if we could get anything. Family members
would hear rumors that she was in various places. And we
would start trying to check around to see if we could locate
her, but we wasn't able to.

He also explained that, after he remarried, he wanted to have Alicia's parental rights

terminated so his second wife could adopt A.W.J.S. Also, he wanted to enforce his

visitation rights to see P.J.W.B. In the spring of 2017, he asked his attorney to locate her.

He testified that he did not know where to look for Alicia and had no idea where

to find her. He and his wife checked Facebook from time to time to see if there was any

indication of her location. After 2017, he and his wife started saving to hire a private

investigator and an attorney to locate Alicia and get visitation rights to see P.J.W.B.

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Relator did not know where Alicia's family was living, and he did not know she had

remarried. He never attempted to go to Alicia's mother's house. He was able to find

Alicia's parents on Facebook a couple of times, but he never sent a message to Alicia's

family or friends or posted to their Facebook page. He did not drive to any of their

houses, try to get a telephone number for any of them, or send any sort of communication

to any of them.

Based on the facts shown in this record, we conclude the trial court could only

have reached the decision that Relator, by acquiescence, relinquished possession of

P.J.W.B. for almost nine years. See Walker, 827 S.W.2d at 839-40. Therefore, the trial court

did not abuse its discretion in denying Relator's petition for habeas corpus or his motion

to reconsider his petition for habeas corpus. See TEX. FAM. CODE ANN. § 157.373(a). We

overrule Relator's first issue.

Temporary Emergency Jurisdiction

In his second issue, Relator asserts that the trial court could not have obtained

temporary emergency jurisdiction. Specifically, he argues that the child was not

abandoned or subjected to or threatened with mistreatment or abuse as required by the

Texas Family Code.

Texas Family Code Section 152.204 permits a Texas court to obtain temporary

emergency jurisdiction over a child in custody matters if the child is present in Texas and

the child has been abandoned or it is necessary in an emergency to protect the child

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because the child, or a sibling or parent of the child, is subjected to or threatened with

mistreatment or abuse. TEX. FAM. CODE ANN. § 152.204(a). The exercise of temporary

emergency jurisdiction under Section 152.204 is reserved for extraordinary

circumstances. See In re Salminen, 492 S.W.3d 31, 40 (Tex. App.—Houston [1st Dist.] 2016,

orig. proceeding).

The trial court, pursuant to Family Code Section 152.204, took temporary

emergency jurisdiction of P.J.W.B. and ordered that he "shall remain in Johnson County,

Texas with Kelvin Burgess." The record shows that Burgess filed his petition because his

wife, the mother of P.J.W.B., died. The evidence shows, and the trial court found, that

prior to Alicia's death the child resided with Alicia and Burgess for six years, and the

child's needs are currently being met by Burgess. There is no evidence of abandonment

or that anyone has been subjected to or threatened with mistreatment or abuse.

Accordingly, the trial court abused its discretion by exercising temporary emergency

jurisdiction and issuing the temporary order pursuant to Family Code Section 152.204.

See TEX. FAM. CODE ANN. § 152.204(a); Walker, 827 S.W.2d at 840.

Conclusion

We deny Relator's petition for writ of mandamus to the extent he complains of the

denial of his petition for habeas corpus and motion for reconsideration of his petition for

habeas corpus. We conditionally grant his petition for writ of mandamus to the extent

he complains of the trial court's exercise of temporary emergency jurisdiction and entry

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of a temporary order. We direct the trial court to vacate its temporary order requiring

P.J.W.B. to remain in Johnson County. We are confident the trial court will comply, and

our writ will issue only if it does not.

STEVE SMITH
Justice

Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
(Chief Justice Gray dissents to judgment ruling on Habeas Corpus)
(Chief Justice Gray concurs with judgment ruling on Temporary Emergency Jurisdiction)
Petition denied in part and conditionally granted in part
Opinion delivered and filed April 25, 2024
[CV06]

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