NUMBER CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG MEMORANDUM OPINION

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1 NUMBER CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG IN RE CHRISTINA MARES, GUARDIAN OF THE PERSON AND ESTATE OF EMANUEL OLVERA, AN INCAPACITATED PERSON On Petition for Writ of Mandamus. MEMORANDUM OPINION Before Chief Justice Valdez and Justices Rodriguez and Perkes Memorandum Opinion by Justice Perkes 1 Relator, Christina Mares, guardian of the person and estate of Emanuel Olvera, 2 an incapacitated person, filed a petition for writ of mandamus in the above cause on November 20, Through this original proceeding, relator seeks to compel the district 1 See TEX. R. APP. P. 52.8(d) ( When denying relief, the court may hand down an opinion but is not required to do so. When granting relief, the court must hand down an opinion as in any other case. ); id. R (distinguishing opinions and memorandum opinions). 2 We note that Emanuel Olvera s name is spelled differently in various parts of the record presented to this Court. We utilize the spelling contained in the petition for writ of mandamus in this opinion.

2 court 3 to vacate a divorce decree and transfer the case to the Probate Court No. Two of Tarrant County, Texas. We conditionally grant the petition for writ of mandamus. I. BACKGROUND On August 25, 2014, in County Court at Law Number Two of Cameron County, Texas, Regina Jill Olvera filed an application for appointment of a permanent guardian of the person and estate of her husband, Emanuel Olvera, on grounds that he has a total and permanent disability due to a brain injury resulting from a motor vehicle accident. Regina sought to have Emanuel s daughter, Mares, appointed as Emanuel s guardian. On December 3, 2014, the trial court appointed Mares as the permanent guardian of the person and estate of Emanuel. On January 29, 2015, in the 138th District Court of Cameron County, Texas, Regina filed an original petition for divorce against Emanuel. On May 27, 2015, the County Court at Law Number Two of Cameron County transferred Emanuel s guardianship proceedings to the statutory probate court in Tarrant County, Texas pursuant to section of the Texas Estates Code. See TEX. EST. CODE ANN (West, Westlaw through 2015 R.S.) ( When a guardian or any other person desires to transfer the transaction of the business of the guardianship from one county to another, the person shall file a written application in the court in which the guardianship is pending stating the reason for the transfer. ). On July 31, 2015, Mares filed an answer on behalf of Emanuel to the petition for divorce filed by Regina in the 138th District Court of Cameron County, Texas. 3 This original proceeding arises from trial court cause number 2015-DCL in the 138th District Court of Cameron County, Texas, and the respondent in this case is the Honorable Arturo Cisneros Nelson. See TEX. R. APP. P

3 On August 13, 2015, the statutory probate court in Tarrant County, Texas, entered an order transferring the divorce proceedings pending in the 138th District Court of Cameron County to itself: On the [13th day of August, 2015], came on to be considered the request of Christina Mares, Guardian of the Person and Estate of Emanuel Olvera, to transfer proceedings in Cause no DCL in the 138th Judicial District Court, in Cameron County, Texas, pursuant to of the Texas Estates Code. Christina Mares, Applicant, appeared through attorney of record, Jerome A. Styrsky. Regina Olvera, Respondent, appeared/did not appear in person and represented by Adolfo E. Cordova, Jr. Also appearing was R. Dyann McCully, Guardian Ad Litem for the Ward, Emanuel Olvera. The Court, after reviewing the pleadings, considering the evidence presented, and hearing arguments of all counsel finds that the allegations contained in the Motion to Transfer appear to be true and that the proceedings now pending in Cause no DCL in the 138th Judicial District Court in Cameron County, Texas, should be transferred pursuant to of the Texas Estates Code to this court for consideration with all other matters pending in this Guardianship. IT IS THEREFORE ORDERED that the Motion of Christina Mares for transfer and consolidation of proceedings pursuant to of the Texas Estates Code is GRANTED. That the lawsuit styled In the Matter of the Marriage of Regina Olvera and Emanuel Olvera, and bearing cause no DCL currently pending in the 138th Judicial District Court, in Cameron County, Texas, is transferred to the Probate Court No. 2, in Tarrant County, Texas, and consolidated with the guardianship proceedings currently pending in this Court in Cause No GD , as Cause No. [to be assigned upon receipt of file]. IT IS FURTHER ORDERED that the Court Clerk of the 138th Judicial District Court, of Cameron County, Texas, shall immediately make up a transcript of all pleadings and orders made in Cause No DCL-00613, certify the transcript officially under the seal of that Court, and send it with the original papers in the Cause No DCL to the Clerk of this Court for consolidation with this pending guardianship proceeding. 3

4 On September 3, 2015, the 138th District Court of Cameron County issued an order setting the divorce between Emanuel and Regina for trial on October 6, On September 8, 2015, the District Clerk of Cameron County received the transfer order issued by the Tarrant County probate court. The docket sheet for the 138th District Court reflects an entry stating that the case [is] not to be transferred per judge. 4 On October 2, 2015, in the 138th District Court of Cameron County, Mares filed a plea to the jurisdiction on grounds that the Probate Court Number Two of Tarrant County had assumed subject matter jurisdiction of the divorce proceeding pursuant to section of the Texas Estates Code. See TEX. EST. CODE ANN (West, Westlaw through 2015 R.S.). In the alternative, Mares sought a continuance of the divorce trial. On October 8, 2015, the 138th District Court issued an order setting the divorce for trial on October 20, On October 20, 2015, that same court rendered a final decree of divorce between Emanuel and Regina. 5 This original proceeding ensued. By two issues, Mares contends: (1) the respondent s order granting a divorce and dividing community property is void; and (2) the respondent abused his discretion in proceeding to trial after the statutory probate court 4 A docket sheet entry ordinarily forms no part of the record that may be considered; rather, it is a memorandum made for the trial court and clerk s convenience. See In re Bill Heard Chevrolet, Ltd., 209 S.W.3d 311, 315 (Tex. App. Houston [1st Dist.] 2006, orig. proceeding). In this case, the docket sheet entry referenced here forms no part of our analysis but is instead merely utilized to furnish context for the relevant trial court proceedings discussed herein and evidenced by materials that are properly part of the record before this Court. 5 The divorce was orally rendered. An oral order may be the subject of mandamus relief if the court's ruling is a clear, specific, and enforceable order that is adequately shown by the record. See TEX. R. APP. P. 52.3(k)(1)(A); In re State ex rel. Munk, 448 S.W.3d 687, 690 (Tex. App. Eastland 2014, orig. proceeding); In re Bledsoe, 41 S.W.3d 807, 811 (Tex. App. Fort Worth 2001, orig. proceeding). The order at issue meets these requirements under the circumstances at issue in this case. 4

5 ordered the case to be transferred. This Court requested that Regina, or any others whose interest would be directly affected by the relief sought, file a response to the petition for writ of mandamus. See TEX. R. APP. P. 52.2, 52.4, Regina filed a response to the petition for writ of mandamus in which she contends that the Texas Estates Code provides that a probate court may transfer a divorce proceeding, but is not required to do so, and therefore the district court had jurisdiction to handle the divorce proceeding. II. STANDARD OF REVIEW Mandamus relief is proper to correct a clear abuse of discretion when there is no adequate remedy by appeal. In re Frank Motor Co., 361 S.W.3d 628, 630 (Tex. 2012) (orig. proceeding); see In re Olshan Found. Repair Co., 328 S.W.3d 883, 887 (Tex. 2010) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable that it amounts to a clear and prejudicial error of law or if it clearly fails to correctly analyze or apply the law. In re Olshan Found. Repair Co., 328 S.W.3d at 888; Walker, 827 S.W.2d at 840. In determining whether appeal is an adequate remedy, we consider whether the benefits outweigh the detriments of mandamus review. In re BP Prods. N. Am., Inc., 244 S.W.3d 840, 845 (Tex. 2008) (orig. proceeding); In re Prudential Ins. Co., 148 S.W.3d at In the instant case, two different courts are attempting to exercise jurisdiction over the divorce proceeding between Regina and Emanuel. Mandamus relief is appropriate when one court interferes with another court s jurisdiction. See In re SWEPI, L.P., 85 5

6 S.W.3d 800, 809 (Tex. 2002) (orig. proceeding) ( [B]ecause the probate court transferred the Bailey suit to itself without statutory authority and thereby actively interfered with the Harris County court s jurisdiction over the case, mandamus relief is appropriate. ); Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex. 1974) (orig. proceeding) ( If the second court... attempts to interfere with the prior action, this court has the power to act by mandamus or other appropriate writ to settle the conflict of jurisdiction. ); see also Perry v. Del Rio, 66 S.W.3d 239, 258 (Tex. 2001) (orig. proceeding) (holding that mandamus relief was appropriate when one court actively interfered with the dominant jurisdiction of another court by setting its case for trial at the same date and time); Abor v. Black, 695 S.W.2d 564, 567 (Tex. 1985) (orig. proceeding) (stating that mandamus relief was proper where one court actively interfered with the jurisdiction of the other court by enjoining that court from proceeding). III. ANALYSIS The Texas Estates Code authorizes a statutory probate court to transfer to itself a matter related to a guardianship proceeding: A judge of a statutory probate court, on the motion of a party to the action or of a person interested in the guardianship, may: (1) transfer to the judge s court from a district, county, or statutory court a cause of action that is a matter related to a guardianship proceeding pending in the statutory probate court, including a cause of action that is a matter related to a guardianship proceeding pending in the statutory probate court and in which the guardian, ward, or proposed ward in the pending guardianship proceeding is a party; and (2) consolidate the transferred cause of action with the guardianship proceeding to which it relates and any other proceedings in the statutory probate court that are related to the guardianship proceeding. 6

7 TEX. EST. CODE ANN (West, Westlaw through 2015 R.S.). Under the Texas Estates Code, a matter related to a guardianship proceeding includes, inter alia, the settling of an account of a guardian and all other matters relating to the settlement, partition, or distribution of a ward s estate; a claim brought by or against a guardianship estate; an action for trial of title to real property that is guardianship estate property, including the enforcement of a lien against the property; and an action for trial of the right of property that is guardianship estate property. Id (a)(2)-(5) (West, Westlaw through 2015 R.S.). In a case under the analogous provisions of the now-repealed Texas Probate Code, codified in our current Texas Estates Code, the Texas Supreme Court conditionally granted mandamus relief on grounds that a statutory probate court has the authority to transfer to itself, from district court, a divorce proceeding when one party to the divorce is a ward of the probate court. See In re Graham, 971 S.W.2d 56, 60 (Tex. 1998) (orig. proceeding). In that case, the court of appeals conditionally issued a writ of mandamus compelling the probate court to vacate its order transferring a divorce, filed in a Travis County district court, to Travis County Probate Court Number One, where a guardianship of the husband s estate and person was pending. See id. The Texas Supreme Court concluded that the divorce proceeding was a matter appertaining and incident to the husband s guardianship estate and conditionally granted a petition for writ of mandamus directing the court of appeals to vacate its order. Id. Specifically, the supreme court held that the outcome of the divorce proceeding necessarily appertained to the husband s estate, so as to fall within the jurisdiction of the statutory probate court, because (1) the proceeding would directly impact the assimilation, distribution, and settlement of the 7

8 husband s estate, and (2) the fact that the case involved child support issues did not obviate the authority of the statutory probate court to transfer the divorce proceedings from district court to itself. See id. Following the analysis in Graham, we conclude that the same result applies under the current Texas Estates Code. Under the Texas Estates Code, a divorce proceeding is a matter related to a guardianship proceeding for the husband of the estate. See TEX. EST. CODE ANN ; id (a)(2)-(5); In re Graham, 971 S.W.2d at 60. Accordingly, we hold that the Tarrant County statutory probate court had the authority under the estates code to transfer a divorce proceeding to itself from the district court when one party to the divorce is a ward of the probate court. See, e.g., In re Graham, 971 S.W.2d at 60. Thus, the respondent abused its discretion in granting a divorce and dividing community property after the case was ordered transferred to the statutory probate court. We sustain relator s issues. IV. CONCLUSION We conditionally grant the writ of mandamus and direct the respondent to vacate the divorce decree rendered on October 20, 2015, proceed no further in the case, and transfer the case to the Probate Court No. Two of Tarrant County, Texas. Our writ will issue only if the respondent fails to comply. Delivered and filed the 28th day of January, JUSTICE GREGORY T. PERKES 8