Articles Posted in Writ of Mandamus

You just finished the first big hearing in all family law cases that sets the status quo of the case and gives you an idea as to how the judge is leaning in your situation—the temporary orders hearing.  You do not like the outcome and you feel that the judge was wrong in their decision.  But, what do you do about it?  Are you stuck with this ruling or can you appeal it?  Unfortunately, the answer is “it depends.”  Like all family law cases, the outcome will depend upon the venue and court you are located in.

If you are located in Dallas County, the answer is yes.  There are district and associate judges in all family courts in Dallas County and all temporary orders hearings are held in front of the associate judges.  Therefore, if you do not like the associate judge’s ruling on your temporary orders hearing you can take another bite at the apple in front of the district judge by requesting a “de novo hearing.”  The key is, however, that you have an extremely limited time in order to do so and many people miss their deadline.  Specifically, the legislature amended Texas Family Code Section 201.015(a) this past year to now state that “a party may request a de novo hearing before the referring court by filing with the clerk of the referring court a written request not later than the third working date after the date the party receives notice of the substance of the associate judge’s report.”  So, basically the day that the associate judge renders their judgment—you must have your de novo on file within three working days from that date.  If your de novo hearing request is timely and properly filed (there are specifics on its contents also), then the referring court (the district judge) will set your de novo hearing.  This is your second chance where the district judge will re-hear the issues and evidence that are on appeal from the associate judge’s ruling.  Just a side note that many people are confused on—the associate judge’s ruling remains in full force and effect until it is changed by the district judge. Therefore, you do need to comply with it until or when/if the district judge changes it.

If your case is in Rockwall County or Kaufman County, the answer is yes; but it is a higher hurdle and burden.  You cannot appeal temporary orders hearings in these actual counties because you only have one judge—the district judge.  But, you can appeal the decision of the district judge to the appellate courts on a temporary orders level through a petition for writ of mandamus.   The legislature did not want to leave people without a vehicle to appeal temporary orders and so this option is available.  The only problem with this type of pleading or action is that the burden is very high.  In fact, if you are going to try to appeal it will most likely be based upon the “abuse of discretion” prong which is extremely difficult to prove.  This is basically claiming that the district judge abused their discretion when making the ruling in the temporary orders.  Therefore, you might just be spinning your wheels and many people do not end up filing a mandamus for several reasons (including the fact that you still have to have your final trial in front of the same district judge who will then know you filed a mandamus on them).

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