IN RE: Sandra Sandoval (2016)

MEMORANDUM OPINION

On April 23, 2015, relator Sandra Sandoval filed a petition for writ of mandamus, complaining of the trial court's order denying her plea to the jurisdiction in the underlying suit to adjudicate parentage.  The panel issued an opinion conditionally granting mandamus relief on August 12, 2015.  The real party in interest filed a motion for en banc reconsideration on August 26, 2015.  By separate order, the court has voted to deny the motion for en banc reconsideration;  however, we withdraw our prior opinion and substitute this opinion in its stead to clarify the panel's reasoning.  We conclude the challenged order in this instance constitutes a clear abuse of the trial court's discretion which is appropriate for mandamus review because of the extraordinary circumstances presented.  See In re Prudential Ins. Co. of Am., 148 S.W.2d 124, 136 (Tex.2007) (mandamus review available to correct significant rulings in exceptional cases).  Therefore, we conditionally grant mandamus relief.

BACKGROUND

In 2002, Sandra Sandoval adopted a baby, N.I.V.S., shortly after birth.  Two years later, she adopted a second baby, M.C.V.S. The parental rights of the children's biological parents were terminated and Sandoval adopted both children by herself.  At the time of both adoptions, Sandoval was in a romantic relationship with Dino Villarreal, the real party in interest in this original proceeding.

Dino was bom a female, named Diana, but was raised as a boy and has self-identified as a male for all of his adult life.  Dino moved in with Sandoval in 1994 and lived with her, and later the two children, until January 2011 when Dino and Sandoval separated.

In December 2013, Dino filed a petition to adjudicate parentage and a motion for temporary orders after Sandoval allegedly refused to allow any further contact between Dino and the children.²  On January 3, 2014, in a separate cause of action, Dino obtained an Order Granting Change of Identity, which acknowledged his name change from Diana to Dino ³ , and included the following finding:  “3. Petitioner's sex is male.”  Following the trial court's findings, the order concluded, “IT IS ORDERED that Petitioner's identity is changed from female to male.” ⁴

Sandoval filed a plea to the jurisdiction in Dino's suit to adjudicate parentage, challenging Dino's standing to maintain the suit.  The trial court granted Sandoval's plea to the jurisdiction, finding that Dino lacked standing to bring a suit to adjudicate parentage and lacked standing to seek conservatorship, possession and access to the children.  Dino appealed and this court affirmed the trial court's judgment granting Sandoval's plea to the jurisdiction on March 11, 2015.  In the Interest of N.I.V.S., No. 04–14–00108–CV, 2015 WL 1120913, at *1 (Tex. App–Mar. 11, 2015, no pet.).

Five days after this court issued its opinion, Dino filed a second suit to adjudicate parentage.  In his petition, Dino asserts that he has statutory standing to bring suit as, “a man alleging himself to be the father of the minor children.”  See Tex. Fam.Code Ann. § 102.003(a)(8) (West 2014).  Dino requested, among other things, temporary orders appointing him joint managing conservator of the two minor children, and equal periods of possession and access with Sandoval.

Sandoval again filed a plea to the jurisdiction challenging Dino's standing to bring suit.  The trial court signed an order on April 17, 2015, denying Sandoval's plea to the jurisdiction, as well as her request for genetic testing and motion for sanctions.  The trial court then proceeded to a hearing on temporary orders, eventually allowing Dino possession and access to the minor children, appointing an amicus attorney, and enjoining the parties from initiating any proceedings for the adoption of the children by any party.

Sandoval filed this original proceeding challenging the trial court's order denying her plea to the jurisdiction.

ANALYSIS

The improper denial of a plea to the jurisdiction is generally not reviewable by mandamus because it involves a question of law which can be addressed by ordinary appeal.  See In re State Bar of Tex., 113 S.W.3d 730, 734 (Tex.2003) (orig.proceeding).  “There are nevertheless several exceptions to this general prohibition against mandamus review of a trial court's order denying a plea to the jurisdiction.  In short, a remedy by appeal may be an inadequate remedy when there are extraordinary circumstances present.”  In re First Mercury Ins. Co., 437 S.W.3d 34, 38 (Tex. App.–Corpus Christi 2014, orig. proceeding).  The Texas Supreme Court has held that mandamus review is appropriate when the trial court's jurisdiction is challenged in a proceeding involving child custody issues.  See Geary v. Peavy, 878 S.W.2d 602, 603 (Tex.1994) (orig.proceeding);  see also In re Green, 352 S.W.3d 772, 774 (Tex.App.–San Antonio 2011, orig. proceeding).  This is due to the unique and compelling circumstances presented when the trial court decides issues pertaining to child custody.  See Geary, 878 S.W.2d at 603;  see also In re Derzapf, 219 S.W.3d 327, 334 (Tex.2007) (exceptional circumstances presented by challenge to temporary orders in suit for access to children support availability of mandamus review).  We conclude that eventual review of the jurisdictional question on appeal from a final judgment would be inadequate in this instance.  Mandamus review is therefore appropriate.  See Derzapf, 219 S.W.3d at 335.

The Texas Legislature has established a comprehensive statutory framework for determining standing in suits affecting the parent-child relationship.  See Tex. Fam.Code Ann. §§ 102.003–.006 (West 2014).  Standing to file suit under the Texas Family Code is limited.  A suit to establish a parent-child relationship may only be brought by certain individuals falling within identified categories.  See In re Sullivan, 157 S.W.3d 911, 915 (Tex.App.–Houston [14th Dist.] 2005, orig. proceeding).  In statutory standing cases, “the analysis is a straight statutory construction of the relevant statute to determine upon whom the Texas Legislature conferred standing and whether the claimant in question falls in that category.”  Id.

In his second petition to adjudicate parentage, Dino asserts that he has statutory standing to maintain his suit under section 102.003(a)(8) of the Texas Family Code, which provides:

(a) An original suit may be filed at any time by:

(8) a man alleging himself to be the father of a child filing in accordance with Chapter 160, subject to the limitations of that chapter, but not otherwise;․

Tex. Fam. Code Ann. § 102.003(a)(8).

Standing to file a suit to adjudicate parentage under Chapter 160 of the Family Code is also expressly limited.  Such a suit may only be maintained by:

(1) the child;

(2) the child's mother;

(3) “a man whose paternity of the child is to be adjudicated;”

(4) an authorized governmental agency;

(5) an adoption or child-placing agency;

(6) a legal representative of an authorized individual who is incapacitated;

(7) a relative of the mother if the mother is deceased;  or

(8) an intended parent under a gestational agreement.

Tex. Fam.Code Ann. § 160.602(a)(3) (West 2014) (emphasis added).

As this court stated in affirming the trial court's dismissal of Dino's first suit on the basis of standing:

“Standing must exist at the time a plaintiff files suit and must continue to exist between the parties at every stage of the legal proceedings, including the appeal;  if the plaintiff lacks standing at the time suit is filed, the case must be dismissed, even if the plaintiff later acquires an interest sufficient to support standing.”  La Tierra de Simmons Familia, Ltd. v. Main Event Entm't, L.P., 03–10–00503–CV, 2012 WL 753184, at *4 (Tex.App.–Austin Mar. 9, 2012, pet. denied) (mem.op.) (citing, in part, Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 n.9 (Tex.1993));  Martin v. Clinical Pathology Labs., Inc., 343 S.W.3d 885, 888 (Tex.App.– Dallas 2011, pet. denied).

In the Interest of N.I.V.S., 2015 WL 1120913, at *2.

This court concluded that Dino did not have standing to bring his first suit under subsection 102.003(a)(8) because he was not a man at the time he filed his suit.  Id. at *5.

Dino contends in this mandamus proceeding, as he did in the trial court when opposing Sandoval's plea to the jurisdiction, that because the Order Granting Change of Identity, signed on January 3, 2014, was in place prior to his filing the second suit to adjudicate parentage, he now has standing to maintain suit.  Dino contends that his Order Granting Change of Identity is legally sufficient to confer statutory standing to adjudicate his legal paternity to Sandoval's adopted children under subsection 160.602(a)(3).  We disagree.

The Legislature amended the Family Code in 2009 to add a provision which allows a court order relating to an individual's sex change as an acceptable form of identification to establish a person's identity and age for the purpose of obtaining a marriage license.  See Tex. Fam. Code Ann. § 2.005(b)(8) (West Supp.2014).  The family code contains no further provision defining the terms used in this subsection, and offers no rules or standards with respect to its application.  See In re Estate of Araguz, 443 S.W.3d 233, 245 (Tex.App.–Corpus Christi 2014, pet. filed).

The Order Granting Change of Identity was not challenged in the proceeding in which it was obtained.  While the clear language of the Family Code recognizes such an order as sufficient to provide proof of Dino's identity and age for the purpose of obtaining a marriage license, we conclude that it is not sufficient to confer statutory standing to maintain a suit to adjudicate parentage under subsection 160.602(a)(3).  The Order Granting Change of Identity is a recognized form of proof of Dino's identity and age for the purpose of obtaining a marriage license.  It may also be sufficient to acknowledge Dino's legal status as a man.  However, we need not reach such a conclusion in this case because, even if considered a man from birth for legal purposes, Dino's status as a man is not sufficient to confer statutory standing as, “a man whose paternity of the child is to be adjudicated.”  Tex. Fam. Code Ann. § 160.602(a)(3).  If all that was required for standing was to be a man, then any man could maintain a suit to adjudicate parentage to any child.  We do not believe that to be what the Texas Legislature intended.

For a man to maintain a suit to adjudicate parentage, he must fall into one of the categories established by the statutory framework.  Dino has alleged standing as “a man whose paternity of the child is to be adjudicated.”  In this case, Sandoval's children are adopted and there is no contention that Dino is the biological father.  A man alleging “paternity” is a man asserting standing as the biological father of the subject children.  See Tex. Fam. Code Ann. § 160.102(12), (14) (defining “paternity index” and “probability of paternity” in relation to the determination the likelihood that a man is the biological father of a child).  Dino does not contend that he is the biological father of the children because all parties recognize that the parental rights of the children's biological parents were terminated in order for Sandoval to adopt.  Nor does Dino qualify for statutory standing as a presumed father, or meet the requirements to be an acknowledged father.  See Tex. Fam. Code Ann. §§ 160.102(13), 160.204(a) (West 2014) (presumed father);  Tex. Fam. Code Ann. §§ 101.0010, 160.301 (West 2014) (acknowledged father).  The only basis under which Dino attempts to assert that he has statutory standing as “a man whose paternity of the child is to be adjudicated,” is that he acted as a parent to the children and provided actual daily care for them from the time of their adoption until his relationship with Sandoval ended in 2011.  Dino's status as a person with actual care, control and possession of the children may have conferred standing to file suit had he done so within ninety days of the date on which his actual care, control and possession of the children terminated.  See Tex. Fam. Code Ann. § 102.003(a)(9) (West Supp.2015).  However, that is not the basis on which Dino has asserted standing and he does not argue that his suit was timely under this provision.

Dino's history as a caregiver to the children and the fact that he may have developed a close relationship to them while he resided with them is not sufficient to confer statutory standing.  The Texas Legislature has conferred standing to maintain this type of case by statute.  When such a comprehensive statutory framework exists, that is the sole means of establishing standing to maintain suit.  See Sullivan, 157 S.W.3d at 915 (citing Tex. Dep't of Protective and Regulatory Servs. v. Sherry, 46 S.W.3d 857, 859–61 (Tex.2001)).

CONCLUSION

Under the unique set of facts present in the case underlying this mandamus proceeding, we conclude that the trial court abused its discretion in denying Sandoval's plea to the jurisdiction and that any available remedy by appeal would be inadequate given the nature of the issues involved. See Geary, 878 S.W.2d at 603.  Accordingly, we conditionally grant the petition for writ of mandamus and direct the trial court to set aside its April 17, 2015 order denying the plea to the jurisdiction and enter an order granting the plea to the jurisdiction and dismissing the lawsuit for lack of subject matter jurisdiction.  The writ will issue only if we are advised the trial court has failed to act in accordance with this opinion.

Original Proceeding 1

Concurrence with Denial of Motion for en banc Reconsideration

Although I agree with the en banc court's denial of the real party in interest's motion for reconsideration, I write separately for the following reasons:  (1) to acknowledge our limitations as an appellate court bound by the law and not our emotions;  and (2) to ask the Texas Legislature to remedy the unfair situation in which people like Dino Villarreal find themselves.

A. Role of the Appellate Courts

“As an intermediate appellate court, we are not free to mold Texas law as we see fit but must instead follow the precedents of the Texas Supreme Court unless and until the high court overrules them or the Texas Legislature supersedes them by statute.”  Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554, 565 (Tex.App.–Austin 2004, no pet.).  As this court stated in its March 11, 2015 opinion disposing of VillarreaTs original appeal, “[w]hile we do not take lightly the evidence of VillarreaTs significant involvement in the children's lives, we are once again constrained by the Family Code.” In the Interest of N.I.V.S., No. 04–14–00108–CV, 2015 WL 1120913, at *5 (Tex.App.–San Antonio Mar. 11, 2015, no pet.) (mem.op.) (citing Tex. Fam.Code Ann. § 102.003(a)(9)).  That statement was correct on March 11, 2015, and is still correct today.  Villarreal did not have standing then and does not have standing now.

B. Standing

“Standing focuses on who is entitled to bring an action and is determined at the time suit is filed in the trial court.”  In re M.P.B., 257 S.W.3d 804, 808 (Tex.App.–Dallas 2009, no pet.) (citing M.D. Anderson Cancer Ctr. v. Novak, 52 S.W.3d 704, 708 (Tex.2001)).

1. Texas Family Code section 160.602

In the mandamus pending before this court, Villarreal attempted to assert standing pursuant to Texas Family Code section 160.602(a)(3) as “a man whose paternity of the child is to be adjudicated.”  See In re Sandoval, No. 04–15–00244–CV, 2015 WL 4759972, at *2 (Tex.App.– San Antonio Aug. 12, 2015, no pet. h.) (citing Tex. Fam.Code Ann. § 160.602(a)(3) (West 2014)).  Villarreal relied on the trial court's order “that [Villarreal]'s identity [be] changed from female to male.”  However, that order does not mention the Texas Family Code or address its effect under the Texas Family Code.

The Texas Family Code defines “man” as “a male individual of any age.”  In the Interest of N.I.V.S., 2015 WL 1120913, at *3 (citing Tex. Fam.Code Ann. § 160.102(10)).  The Texas Family Code does not, however, define the term “male.”  “When the legislature fails to define a word or term, we will apply its ordinary meaning.”  Id. In this court's March 11, 2015 opinion, we cited Webster's Dictionary which defines ‘male’ as ‘an individual that produces small usually motile gametes ․ which fertilize the eggs of a female.’ ”  Id. That definition has not changed and is controlling in this mandamus.  Therefore, regardless of his possession of a court order changing his identity, Villarreal still does not meet the statutory definition of “man” under the Texas Family Code.

Although I agree that the Texas Family Code's definition of man results in an incredibly unfair situation for Villarreal, this court is bound by the language of the statute and not by what we think is fair.  See Petco Animal Supplies, Inc., 144 S.W.3d at 565.  In my opinion, this is an issue that should be addressed by the Legislature, and I would implore the Texas Legislature to do so.

2. Texas Family Code section 102.003(a)(9)

I also write to reiterate that Villarreal previously possessed an avenue to establish standing, at the time of the parties' separation, and he failed to do so.  See In the Interest of N.I.V.S., 2015 WL 1120913, at *4–5.  There is no question that at the time of the parties' separation in January of 2011, Villarreal possessed standing to file regardless of gender.  Under section 102.003(a)(9), any person “who has had actual care, control, and possession of [a] child for at least six months ending not more than 90 days preceding the date of the filing of the petition” has standing to file an original suit affecting the parent-child relationship.  Tex. Fam.Code Ann. § 102.003(a)(9);  see also In the Interest of N.I.V.S., 2015 WL 1120913, at *5. Villarreal either failed or chose not to act at that time.  By waiting until November of 2013 to file, Villarreal missed his opportunity because he could no longer meet the statutory requirement of having had care, control, and custody of the children for at least six months ending not more than 90 days before he filed his petition.

C. Conclusion

Although Villarreal's inability to legally establish standing to assert his parental rights over these children is heart-wrenching and sad, an appellate court is bound by the law and not emotions.  I, therefore, agree with the majority's conclusion denying Villarreal's motion for en banc reconsideration.

Original Proceeding 1

Dissent from Denial of Motion for en banc Reconsideration

I dissent from the court's order denying the real party in interest's motion for reconsideration en banc.

Contested custody cases are among the most difficult to adjudge impartially.  Each party faces challenges posed by gender stereotyping.  Fathers are frequently judged by the availability of child-care provided by another, while mothers are judged by their own personal ability to care for the child and their decision to work outside the home assessed against what is deemed “acceptable” time away from her child.  We have advanced, I hope, from suffering a predisposition that often divides women and men into the respective gender roles of “nurturer” and “provider.”  We know that men can and often do perform the role of “nurturer,” a role that is not reserved to one who is bom anatomically a female.  For sure, women must balance both roles today.  Custody issues in the present world must enlarge a court's understanding of both “woman” and “man” to include those whose gender identity does not align with their anatomical sex.

This is particularly important in Texas, and specifically in this case.  What has been overlooked is that in 1985, the Texas Legislature enacted the Code Construction Act (“CCA”), which applies to “each code,” not excluding the Family Code, to aid in construing the state's statutes and codes.  See Tex. Gov't Code Ann. § 311.002 (West 2013).  The CCA provides, “[w]ords of one gender include the other genders.”  Id. § 311.012(c) (West 2013).  The Legislature's clear intent to apply its provisions gender-neutrally is the context within which our court should construe “each rule adopted under a code.”  Id. § 311.002(4).²  Further, the Texas Legislature had also previously adopted an understanding of gender that is broader than one's anatomy at birth by granting legal recognition as a “man” to a person bom anatomically female.  A court of law ordered legal recognition to Dino's identity as a man regardless of his anatomical sex, without exclusion to its applicability.  That he was bom female is now altogether secondary.  A majority of this court determines this case by addressing and viewing gender as inextricable from anatomy, by disregarding Dino's legally-recognized gender identity as male, and by forcing a narrow definition of being a “man” without specific and evident direction from the Legislature.  Dino asked for equal dignity in the eyes of the law, and both the Constitution and the trial court granted him that right.  There is no reasonable explanation to deny his identity under every provision of the law and, in particular, the Family Code. The statute does not impose biological sex as the fixed marker of gender identity, nor should it be interpreted to use it as a mechanism for discrimination.  That Dino lacks standing stems solely from the fact that he is transgender.

Questions regarding the retroactive effect of Obergefell ³ remain to be decided.  For example, whether an informal same-sex marriage can exist retroactive to a time when an informal same-sex marriage was not allowed.  Clearly, however, the United States Supreme Court, both in Windsor ⁴ and Obergefell, struck down laws which discriminated against same-sex couples, in part, because of the harm to their children, i.e., that by denying the recognition of marriage for their parents, these laws were telling the children that their parents were not really married and, further, that one of them is not really their parent.  The Supreme Court saw no reasonable explanation for that.  This should suggest to us that the Court's analysis would extend to cases not simply involving marriage, but also to eligibility for adoption and custody.  For our en banc court to read the statute to not encompass marriage and standing to bring suit to adjudicate parentage is thus problematic.

There is also a well-recognized line of federal fundamental rights and equal protection cases that may be relevant here.  See, e.g., Zobel v. Williams, 457 U.S. 55 (1982);  Mem'l Hosp. v. Maricopa Cnty., 415 U.S. 250 (1974);  Dunn v. Blumstein, 405 U.S. 330 (1972);  Shapiro v. Thompson, 394 U.S. 618 (1969).  I am reminded of these “right to travel” cases, and the idea that any classification that infringed on a fundamental right was unconstitutional because of the infringement.  While there is no direct challenge to a same-sex marriage in the case before us, the position this court has taken undermines the ability of an individual man, Dino Sandoval, to exercise his right to appear in court and assert a right of parentage.  What good is the right to same-sex marriage if it does not include a right to be a parent to your children?  Or, at a minimum, the right as a man to stand in court and ask to continue parenting the children who call him “Dad”? This case is, in my opinion, a case involving the right of access to the courts.  This court, in denying a man standing to file a suit to adjudicate parentage on the sole basis of his anatomical sex, falls backward to that time when the imposition of court fees, filing fees, and transcript fees violated the fundamental rights and equal protection due to all.  Dino has established the necessary elements of standing as a man in this case.  The substantive theory under which he asks the court to grant relief may be problematic for him, but at this stage of an interlocutory appeal from the denial of a plea to the jurisdiction, I believe it is error for this court not to recognize that Dino is a male, and not simply for purposes of applying for a marriage license.

If we were to apply the federalized test for standing, Dino could certainly generate a particularized harm, traceable to government action, and an effective remedy.  See, e.g, Whitmore v. Arkansas, 495 U.S. 149, 155 (1990) (discussing Article III standing requirements).  What the en banc court has indicated, dangerously in my opinion, is that an individual who the law recognizes as male is not a man because of his anatomical sex unless and until he seeks to unite in matrimony with a female or male.  The court fails to consider the effect of its rationale on the plethora of unique circumstances involving transgendered individuals in custody disputes.  I dissent for all the reasons articulated by the United States Supreme Court in every fundamental rights and equal protection case that mandates against any classification that unconstitutionally infringes on a fundamental right.  While I recognize that the Supreme Court has yet to apply heightened scrutiny to cases involving sexual orientation and gender identity, I anticipate that those cases addressing sex education curriculum in public schools will bring the issue before it.

There is no prohibition against applying Dino's legal identity as male to every other provision of the law, and this court is without license to limit the consideration of one's gender identity exclusively for purposes of marriage.  This court cannot create a separate entrance to the courthouse for Dino, nor close the door to him as I believe the court's opinion does.  It disappoints me that we would sanction treating an individual differently than how the law allows, and I therefore encourage further review of this decision.  Dino is a male as a matter of law.  Whether he can meet his burden to prove his allegation of paternity which is to be adjudicated is not yet before us to review.

For the above reasons, I dissent.

Original Proceeding 1

Opinion Dissenting from the Denial of Real Party in Interest's Motion for en banc Reconsideration

Because the trial court's order denying relator Sandra Sandoval's plea to the jurisdiction does not award real party in interest Dino Villarreal possession of Sandra's children, I respectfully dissent.  First, the panel's holding that mandamus is appropriate to correct a denial of a plea to the jurisdiction in any child-custody case to prevent any delay directly conflicts with a prior decision of this court and is not supported by the authority the panel cites.  Second, due to the extraordinary number of child-custody disputes in this court's jurisdiction—including those involving termination of parental rights—mandamus cannot be appropriate merely to correct any incidental ruling that would cause any delay in a child-custody dispute.

Direct Conflict with a Prior Decision

This court has a policy and practice of sitting en banc to decide a case in direct conflict with a prior decision of this court.  Furthermore, Texas Rule of Appellate Procedure 41.2(c) provides en banc consideration is appropriate when “necessary to secure or maintain uniformity of the court's decisions.”  Tex.R.App. P. 41.2(c).  The panel's holding that Sandra lacks an adequate remedy by appeal directly contradicts this court's holding in In re Texas Department of Family & Protective Services, No. 04–04–00834–CV, 2004 WL 2965434 (Tex.App.—San Antonio Dec. 22, 2004, orig. proceeding) (mem.op.).  The panel in that proceeding, which also involved child-custody issues, concluded “that relator is not entitled to mandamus relief because it has an adequate remedy by appeal.”  Id. at *1. The relator sought mandamus relief after the trial court denied its plea to the jurisdiction, which asserted the real parties in interest lacked standing to maintain a suit to establish parental rights.  Id. This court reasoned that mandamus is inappropriate “to supervise or correct incidental rulings of a trial court when there is an adequate remedy on appeal.”  Id. Here, the trial court denied Sandra's plea to the jurisdiction, which asserted Dino lacked standing to maintain a suit to establish parental rights, but the panel holds Sandra lacks an adequate remedy by appeal and concludes Sandra is entitled to mandamus relief.

The panel relies on two lines of authority, neither of which is on point as is this court's holding in In re Texas Department of Family & Protective Services.  The panel's substituted opinion relies on cases in which we and the supreme court conditionally granted mandamus relief in child-custody cases to avoid a “jurisdictional dispute” involving conflicting custody orders from courts in different territorial jurisdictions.  See Geary v. Peavy, 878 S.W.2d 602, 603–04 (Tex. 1994) (orig.proceeding) (per curiam) (Texas versus Minnesota);  In re Green, 352 S.W.3d 772, 774–75 (Tex.App.—San Antonio 2011, orig. proceeding) (Texas versus Germany).  However, Sandra has not presented a record to this court demonstrating there is any possibility of conflicting custody orders from different jurisdictions in this case.  “Jurisdiction,” as used in Geary and Green, does not generally refer to subject matter jurisdiction, it refers to conflicting orders from courts of different jurisdictions.  Therefore, the decisions in Geary and Green are not on point.

The panel also relies on In re Derzapf, 219 S.W.3d 327 (Tex.2007) (orig.proceeding) (per curiam).  The supreme court in Derzapf ordered the trial court to vacate its temporary orders that granted grandparents access to a child in violation of the father's parental rights.  Id. at 334–35.  The “extraordinary circumstances” in Derzapf were that the trial court divested a fit parent of possession of his children.  Id. at 335 (“Such a divestiture is irremediable, and mandamus relief is therefore appropriate.”) (emphasis added).  The supreme court's holding was expressly based on an order that erroneously divested the parent of his rights by awarding access to a non-parent.  Id. The supreme court cited two cases in support of its holding;  both awarded mandamus relief for an order that awarded a non-parent possession.  See id. (citing In re Mays–Hooper, 189 S.W.3d 777, 778 (Tex.2006) (orig.proceeding) (per curiam) (“direct[ing] the trial court to vacate its order ․ granting grandparent possession”);  Little v. Daggett, 858 S.W.2d 368, 369 (Tex.1993) (orig.proceeding) (ordering trial court to vacate “order granting visitation”)).  The trial court's order denying Sandra's plea to the jurisdiction does not award Dino possession of the children.  Therefore, the supreme court's decision in Derzapf is not on point.

Absent a decision from a higher court or this court sitting en banc that is on point and contrary to the prior panel decision or an intervening and material change in the statutory law, a panel should not ignore the prior holding of another panel of this court.  See Chase Home Fin., L.L.C. v. Cal W. Reconveyance Corp., 309 S.W.3d 619, 630 (Tex.App.—Houston [14th Dist.] 2010, no pet.).  A panel of this court has held that when a trial court erroneously denies a plea to the jurisdiction based on the lack of a party's standing to bring a suit involving child-custody issues, a relator has an adequate remedy by appeal.  There is no on-point and contrary decision from the supreme court or this court sitting en banc, and there has been no intervening, material change in the statutory law.  Thus, to be consistent with this court's policy and practice, this case should be decided en banc.  See id.

Extraordinary Circumstances under Rule 41.2(c)

The panel's holding also presents “extraordinary circumstances requir[ing] en banc consideration.”  Tex.R.App. P. 41.2(c).  The panel holds that a direct appeal is inadequate to correct any incidental ruling that delays the resolution of the child-custody dispute.  There are an extraordinary number of child-custody disputes—including proceedings to terminate parental rights—in counties over which this court has jurisdiction.  And many incidental rulings in a childcustody dispute could delay the dispute's resolution.

Although the panel suggests its holding is limited to “jurisdictional question [s]” based on Geary and Green, neither Geary nor Green holds that the lack of subject matter jurisdiction— without the possibility of conflicting custody orders—is sufficient to authorize mandamus relief.  Texas law is clear that there must be something more than a trial court's lack of subject matter jurisdiction to authorize mandamus relief.  Abor v. Black, 695 S.W.2d 564, 566 (Tex.1985) (orig.proceeding);  Pope v. Ferguson, 445 S.W.2d 950, 954 (Tex.1969) (orig.proceeding).  When understood in that context, the panel's holding is that a direct appeal is inadequate to correct any incidental ruling that delays the resolution of any child-custody dispute.

But the supreme court has held a direct appeal is not necessarily inadequate in a childcustody dispute simply because mandamus might resolve the dispute slightly faster.  In re Tex. Dep't of Family & Protective Servs., 210 S.W.3d 609, 614 (Tex.2006) (orig.proceeding) (holding fact that mandamus would be slightly faster than pursuing accelerated appeal of order in childcustody case was insufficient reason to authorize mandamus).  Whether a direct appeal is adequate “depends on a careful balance of the case-specific benefits and detriments of delaying or interrupting a particular proceeding.”  In re Gulf Expl., LLC, 289 S.W.3d 836, 842 (Tex.2009) (orig.proceeding).  Thus, the possibility of some delay in a child-custody proceeding cannot trump any and all other considerations regardless of “the case-specific benefits and detriments of delaying or interrupting a particular proceeding.”  See id.;  see also In re Tex. Dep't of Family & Protective Servs., 210 S.W.3d at 614.  Sandra has not demonstrated that any delay caused by the trial court's denial of her plea in this specific case would be sufficiently extraordinary to authorize mandamus relief.

In Pope v. Ferguson, the supreme court articulated the “sound reason why appellate courts should not have jurisdiction to issue writs of mandamus to control or to correct incidental rulings of a trial judge” when an appeal would be adequate:

Trials must be orderly;  and constant interruption of the trial process by appellate courts would destroy all semblance of orderly trial proceedings.  Moreover, with this type of intervention, the fundamental concept of all American judicial systems of trial and appeal would become outmoded.  Having entered the thicket to control or correct one such trial court ruling, the appellate courts would soon be asked in direct proceedings to require by writs of mandamus [that] trial judges enter orders, or set aside orders, sustaining or overruling (1) pleas to the jurisdiction, (2) pleas of privilege, (3) pleas in abatement, (4) motions for summary judgment, (5) motions for instructed verdict, (6) motions for judgment non obstante veredicto, (7) motions for new trial and a myriad of interlocutory orders and judgments;  and, as to each, it might logically be argued that the petitioner for the writ was entitled, as a matter of law, to the action sought to be compelled.

445 S.W.2d at 954.  Due to the extraordinary number of child-custody disputes in this court's jurisdiction, including those involving parental termination, mandamus cannot be appropriate to correct any incidental ruling that would cause a delay in a child-custody dispute.

Conclusion

The panel holds that mandamus is appropriate to correct any ruling delaying the resolution of a child-custody dispute—even when the challenged ruling is incidental and does not grant or deny possession of or access to a child.  This holding directly conflicts with a prior decision of this court and presents extraordinary circumstances that require en banc reconsideration.  See Tex.R.App. P. 41.2(c).  Because Rule 41.2(c) and the policy and practice of this court require this court sitting en banc to reconsider the panel's opinion, I respectfully dissent.

FOOTNOTES

2.   This suit was filed on December 9, 2013, in Cause No.2013–CI–20008, styled In the Interest of N.I.V.S. and M.C.V.S., Minor Children, in the 57th Judicial District Court, Bexar County, Texas.

3.   Dino had previously obtained an order granting his name change in November 2013.

4.   The Order Granting Change of Identity was signed in Cause No.2013–0–20403, styled In the Interest of Dino Villarreal, An Adult, filed in the 407th Judicial District Court, Bexar County, Texas.

1.   This proceeding arises out of Cause No.2015–0–04420, styled In the Interest of N.I.V.S. and M.C.V.S., Minor Children, pending in the 224th Judicial District Court, Bexar County, Texas, the Honorable Gloria Saldana presiding.

1.   This proceeding arises out of Cause No.2015–CI–04420, styled In the Interest of N.I.V.S. and M.C.V.S., Minor Children, pending in the 224th Judicial District Court, Bexar County, Texas, the Honorable Gloria Saldana presiding.

2.   The Uniform Parentage Act, which utilizes gendered terms, further contains a provision stating that the requirements for establishing paternity also apply to a determination of maternity.  Tex. Fam.Code. Ann. § 160.106 (West 2014).

3.   Obergefell v. Hodges, 135 S.Ct. 2584 (2015).

4.   United States v. Windsor, 133 S.Ct. 2675 (2013).

1.   This proceeding arises out of Cause No.2015–CI–04420, styled In the Interest of N.I.V.S. and M.C.V.S., Minor Children, pending in the 224th Judicial District Court, Bexar County, Texas, the Honorable Gloria Saldana presiding.

Opinion by: Jason Pulliam, Justice