In re K.D.H. — Memorandum Opinion by Justice Trotter

Opinion filed October 22, 2026
In The
Eleventh Court of Appeals
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No. 11-26-00240-CV
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IN RE K.D.H.
Original Mandamus Proceeding
M E M O R A N D U M 	O P I N I O N
Relator, K.D.H., filed a petition for writ of mandamus requesting that we
direct the Honorable David Hall, the presiding judge of the 1st Multicounty Court at
Law, Nolan County, Texas, to (1) vacate his orders that granted managing
conservatorship to Real Party in Interest (RPI), R.M.G., and (2) dismiss all claims
asserted by RPI for lack of standing. 	For the reasons discussed below, we
conditionally grant Relator’s petition.
I. Factual and Procedural History
Relator became pregnant with N.R.H. when she was sixteen. After N.R.H.’s
birth, Relator and N.R.H. resided with Relator’s mother, M.G.H. Relator relied on

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M.G.H. to help care for N.R.H. until M.G.H. became ill and was hospitalized. RPI
is M.G.H.’s brother, and he and his wife visited M.G.H. during her hospitalization.
During this visit, M.G.H. called Relator to inquire if N.R.H. could stay temporarily
with RPI and his wife. Relator initially refused unless she was given wine coolers.
However, later that same day, Relator recognized that she could not care for N.R.H.
without assistance and she decided that N.R.H. could live with RPI. 	RPI took
possession of N.R.H. in June 2024.
On October 22, 2024, RPI and his wife filed his original petition in a suit
affecting the parent-child relationship (SAPCR) seeking appointment as N.R.H.’s
managing conservators. 	RPI and his wife alleged that they had standing to be
appointed N.R.H.’s managing conservators because appointing N.R.H.’s parents as
sole managing conservators or joint managing conservators would significantly
impair N.R.H.’s physical health or emotional development. 	Further, they asserted
that they had standing to request this appointment because they were N.R.H.’s
maternal great-uncle and great-aunt. 	Approximately four months passed between
when RPI took possession of N.R.H. and the date that his original SAPCR petition
was filed.
On November 4, 2024, Relator filed a cross-petition in the SAPCR and an
Original Petition to Adjudicate Parentage. 	On the same day, the trial court held a
temporary hearing on the parties’ pending requests. The trial court granted Relator’s
motion to strike RPI’s wife’s pleadings and dismissed her from the suit. However,
on the record, Relator did not challenge RPI’s standing under Section 102.004(a) of
the Family Code and confirmed that there was no “dispute over whether [RPI was]
related to this child within the third degree of consanguinity.” See T EX. FAM . CODE
A NN. § 102.004(a) (West Supp. 2025). 	At the conclusion of the hearing, the trial
court orally found that the appointment of N.R.H.’s parents as conservators would

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“presently 	and 	significantly 	impair 	the 	child’s 	physical 	health 	or 	emotional
development” and it rendered temporary orders that appointed RPI as N.R.H.’s
managing conservator and Relator as possessory conservator.
Over one year later, on February 13, 2026, Relator filed a motion to dismiss
RPI’s SAPCR for lack of jurisdiction asserting that RPI lacked conservatorship
standing under Sections 102.003, 102.0031, and 102.004. See id. §§ 102.003, .0031,
.004. On February 17, Relator also filed a plea to the jurisdiction, asserting that RPI
lacked standing under Section 102.004(a) and that he never executed or filed an
affidavit as required by Section 102.0031. 	See id. §§ 102.004(a), .0031. 	Relator
requested that the trial court grant her plea to the jurisdiction and in turn dismiss the
case for lack of subject-matter jurisdiction. On March 18, RPI filed his first amended
petition, in which he reasserted the basis for his standing as he had alleged in his
original filing and further asserted that N.R.H. had been in his sole care, custody,
and control since June 22, 2024.
The trial court held a hearing on Relator’s motions on April 23, 2026, and
after the hearing, took the motions under advisement. Later that same day, Relator
nonsuited her cross-petition and Petition to Adjudicate Parentage. 	On April 24,
2026, the trial court signed an order denying Relator’s plea to the jurisdiction. The
trial court’s order included findings of fact, which, among other things, stated that:
(1) RPI is related to N.R.H. within the fourth degree of consanguinity; (2) Relator
previously consented to RPI’s standing; and (3) there were no defects in the
pleadings or allegations in RPI’s most recent pleading that would serve as an
impediment to the continuation of the suit.
On June 6, 2026, the trial court signed temporary orders that incorporated the
rulings it previously rendered on November 4, 2024, and the modified temporary
orders that were issued following the April 23, 2026, hearing. Both temporary orders

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found that all necessary prerequisites of the law had been legally satisfied and that
the trial court had jurisdiction of the case and all parties. The initial temporary orders
also contained an express finding that RPI had standing to bring the underlying
SAPCR.
II. Standard of Review
Mandamus is an extraordinary remedy that is available only in limited
circumstances. See In re Sw. Bell Tel. Co., 235 S.W.3d 619, 623 (Tex. 2007) (orig.
proceeding); Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding).
For mandamus to issue, the relator must show that (1) the trial court clearly abused
its discretion, and (2) the relator has no adequate remedy on appeal. See In re C.J.C.,
603 S.W.3d 804, 811 (Tex. 2020) (orig. proceeding); In re Prudential Ins. Co. of
Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). While we defer to the
trial court’s factual determinations, mandamus may issue when the trial court “fails
to correctly analyze or apply the law.” 	C.J.C., 603 S.W.3d at 811 (quoting In re
Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005) (per curiam) (orig. proceeding)).
Mandamus will issue if a trial court erroneously denies a motion to dismiss a
SAPCR for lack of standing. In re S.N., No. 02-25-00525-CV, 2025 WL 3713587,
at *2 (Tex. App.—Fort Worth Dec. 22, 2025, orig. proceeding) (citing In re A.G.,
No. 02-24-00548-CV, 2025 WL 294159, at *2 (Tex. App.—Fort Worth Jan. 24,
2025, orig. proceeding) (mem. op.)); In re Clay, No. 02-18-00404-CV, 2019 WL
545722, at *3 (Tex. App.—Fort Worth Feb. 12, 2019, orig. proceeding [mand.
denied]) (mem. op.); In re McDaniel, 408 S.W.3d 389, 396 (Tex. App.—Houston
[1st Dist.] 2011, orig. proceeding). Standing, like other issues that implicate a trial
court’s subject-matter jurisdiction, is a question of law that we review de novo. 	In
re Gandy, 649 S.W.3d 921, 924–25 (Tex. App.—Eastland 2022, no pet.) (citing In
re H.S., 550 S.W.3d 151, 155 (Tex. 2018)). 	Further, we review the trial court’s

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interpretation of applicable statutes de novo. In re E.C., No. 02-13-00413-CV, 2014
WL 3891641, at *1 (Tex. App.—Fort Worth Aug. 7, 2014, no pet.) (mem. op.).
Mandamus is a proper remedy to challenge the issuance of a temporary order
in a SAPCR, because such orders are interlocutory and there is no statutory provision
that provides for an appeal of these orders. F AM . § 105.001(e); see, e.g., Little v.
Daggett, 	858 	S.W.2d 	368, 	369 	(Tex. 	1993) 	(orig. 	proceeding) (holding 	that
mandamus is an appropriate remedy because a temporary order granting visitation
is not appealable); Dancy v. Daggett, 815 S.W.2d 548, 549 (Tex. 1991) (orig.
proceeding) (holding that mandamus is an appropriate remedy because “the trial
court’s issuance of temporary orders is not subject to interlocutory appeal”); In re
Walser, 648 S.W.3d 442, 445 (Tex. App.—San Antonio 2021, orig. proceeding).
III. Analysis
Although RPI’s pleadings do not cite the statutory provision(s) upon which
he relies for his standing, the substance of his allegations mirror the standing
requirements 	found 	in 	Sections 	102.003(a)(9) 	and 	102.004(a).1 See 	FAM .
§§ 102.003(a)(9), .004(a).
A. 	Standing under Section 102.003(a)(9)
Section 102.003(a)(9) grants standing to file an original suit to a person, other
than a foster parent, who had “actual care, control, and possession of the child for at
least six months ending not more than 90 days preceding the date of the filing of the
petition.” 	Id. at § 1 (current version at F AM . § 102.003(a)(9)). 	The period for
determining the length of the petitioner’s care, custody, and control of the child is
1We note that the legislature amended Sections 102.003(a)(9) and 102.004(a), effective
September 1, 2025. Act of May 23, 2025, 89th Leg., R.S., ch. 402, §§ 1, 3, 4, 2025 Tex. Sess. Law Serv.
981, 981–83 (codified at FAM . §§ 102.003(a)(9), 102.004(a)). 	These statutory changes only apply to
SAPCRs that are filed on or after the effective date of the statutory amendments. Id. §§ 7–8. Because RPI
filed the underlying SAPCR on October 22, 2024, we apply the law in effect at the time of filing.

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measured from the date that the petitioner’s original pleading was filed. E.C., 2014
WL 3891641, at *2.
It is undisputed that RPI exercised possession of N.R.H. for four months at
the time he filed his original SAPCR petition. Nevertheless, and although RPI filed
an amended petition after his care, custody, and control of N.R.H. had exceeded six
months, the requisite time for purposes of standing under Section 102.003(a)(9) is
calculated as of the date that the petitioner’s initial pleading is filed. See id. Thus,
because RPI did not have actual care, custody, and possession of N.R.H. for at least
six months before he filed his SAPCR, he does not have standing to be appointed
the managing conservator of N.R.H. under Section 102.003(a)(9).
B. 	Standing under Section 102.004(a)
The version of Section 102.004(a) in effect when RPI filed his SAPCR
provides that one had standing to request managing conservatorship if the petitioner
was a relative of a child and related to the child within the third degree by
consanguinity. Act of May 23, 2025, 89th Leg., R.S., ch. 402, § 4, 2025 Tex. Sess.
Law Serv. 981, 982–83 (current version at FAM .§ 102.004(a)). 	Upon establishing
the requisite degree of consanguinity, the relative must then prove either that (1) the
requested appointment as managing conservator is necessary because the child’s
present circumstances would significantly impair the child’s physical health or
emotional development, or (2) the child’s parents filed the petition or consented to
the relative’s conservatorship appointment. Id.
Here, because RPI is N.R.H.’s great-uncle, he is only related to N.R.H. within
the fourth degree of consanguinity. 	See T EX. G OV’ T CODE ANN. § 573.023 (West
2021). 	Therefore, RPI does not have standing to file a suit for managing
conservatorship of N.R.H. under Section 102.004(a).

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C. 	RPI’s Response
RPI asserts in his response that Relator is estopped from challenging his
standing because of her undue delay in raising these complaints. 	He notes that
Relator waited more than fifteen months before filing her motion to dismiss and plea
to the jurisdiction, and four months after the trial court ruled on RPI’s standing
before seeking mandamus relief. 	Further, RPI argues that the trial court did not
clearly abuse its discretion because it relied on Relator’s representation that she
consented to RPI’s standing.
We construe RPI’s argument to be that laches bars Relator’s request for relief.
Indeed, at times, mandamus may be denied when the record does not reveal a
justification for delay. 	Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex.
1993); In re Rino-K&K Compression, Inc., 656 S.W.3d 153, 161 (Tex. App.—
Eastland 2022, orig. proceeding) (because mandamus proceedings are guided by
equitable principles, the circumstances of the case dictate whether a mandamus
proceeding is subject to a laches bar); see also In re Clear Fork, Inc., No. 11-25-
00136-CV, 2025 WL 2484926, at *3 (Tex. App.—Eastland Aug. 29, 2025, orig.
proceeding) (laches did not bar the relator’s request for mandamus relief where the
real party in interest failed to demonstrate that it was prejudiced by the delay).
However, the issue before us concerns standing and subject-matter jurisdiction.
Standing is a prerequisite to the invocation of the trial court’s subject-matter
jurisdiction and therefore essential to its power to act. See Bland Indep. Sch. Dist. v.
Blue, 34 S.W.3d 547, 553–54 (Tex. 2000) (citing Texas Ass’n of Business v. Texas
Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993)). “Standing cannot be conferred
by consent or waiver and may be raised for the first time on appeal.” In re A.C.F.H.,
373 S.W.3d 148, 150 (Tex. App.—San Antonio 2012, no pet.). Even an agreed order
in a SAPCR is void as to any party that lacks standing. 	In re A.M.S., 277 S.W.3d

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92, 99 (Tex. App.—Texarkana 2009, no pet.) (citing In re Smith, 262 S.W.3d 463,
467 (Tex. App.—Beaumont 2008, no pet.)).
One cannot consent to standing where none exists. In this instance, Relator
could not validly consent to RPI’s standing to be appointed N.R.H.’s managing
conservator because there was no statute in effect at the time that RPI filed his
original SAPCR that granted standing to him to seek that appointment. Therefore,
the trial court’s orders are void.
D. 	Other requests
As an additional basis for relief, Relator raised jurisdictional complaints under
Section 102.0031. See FAM . § 102.0031. Section 102.0031 was enacted during the
pendency of this custody proceeding and requires that a nonparent file an affidavit
that is sufficient for the trial court to determine that denying the nonparent’s relief
would significantly impair the child’s physical health or emotional development.
See Act of May 15, 2025, 89th Leg., R.S., ch. 920, §§ 1, 4, 5, 2025 Tex. Sess. Law.
Serv. 609, 609–10 (codified at F AM . § 102.0031). 	To reach the merits of this
argument, RPI would first need to establish his standing in the underlying SAPCR.
See F AM . §§ 102.003(a), 102.004(a), 102.0031(a); S.N., 2025 WL 3713587, at *5
(The nonparent had to comply with Section 102.0031’s affidavit requirement to
maintain standing.). Because he cannot, we need not address this complaint.
IV. This Court’s Ruling
We conclude that the trial court clearly abused its discretion when it denied
Relator’s plea to the jurisdiction and signed temporary orders that granted RPI
managing conservatorship of N.R.H. Accordingly, we conditionally grant Relator’s
petition for writ of mandamus and direct the trial court to: (1) vacate its order that
granted managing conservatorship to RPI; (2) vacate its order that denied Relator’s
plea to the jurisdiction; and (3) dismiss RPI’s SAPCR for want of jurisdiction. See

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In re Brice, 648 S.W.3d 293, 298 (Tex. App.—San Antonio 2019, orig. proceeding).
A writ of mandamus will issue only if the trial court fails to act by November 6,
2026.
W. STACY TROTTER
JUSTICE
October 22, 2026
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.