Ex parte Serenil

ON MOTION FOR REHEARING EN BANC CADENA, Chief Justice. The motion for rehearing filed by Alice B. Naranjo is overruled. However, the opinion previously filed is withdrawn and the following is substituted as the opinion of this Court: Relator, Jesse Serenil, seeks release from confinement imposed because of his failure to make child support payments as ordered in a divorce decree rendered by a Bexar County court on September 19,1978. Relator argues that the child support provisions of the decree cannot be enforced because, prior to the entry of the divorce decree ordering the child support payments, the Bexar County court, in which the divorce proceedings had been originally filed by Alice, signed an order, in response to a motion filed by her, transferring the “complete files in all matters affecting the child” to “one of the Family District Courts of Harris County.” Alice counters with the contention that, since none of the papers were ever transferred to the Harris County court by the clerk of the Bexar County court, the case never “left” Bexar County and remained on the docket of the Bexar County court. There is no evidence to support the conclusion that the Bexar County clerk did not obey the order of the court directing him to transfer the “files,” certified copies of all entries in the minutes, and a certified copy of any temporary order affecting the parties and their child, all in accordance with provisions of the Texas Family Code. During the preliminary discussions between counsel and the trial court, the attorney for Alice said that “for some unknown reason the Bexar county clerk never did transfer the case to Harris County.” This unsworn statement proves nothing. Jesse’s attorney did not concede that the transfer had not taken place. After Alice had testified on direct examination that her attorney had “attempted” to get the case transferred to Harris County, she was asked: “[D]o you know if the case was ever transferred to Harris County?” She answered: “No, it wasn’t because a while later we got papers from Jesse’s lawyer.” She apparently believed that when a case was transferred from one county to another the attorneys stopped all communication with each other. Her assumption that the case had not been transferred because Jesse’s lawyer, wherever he might have been located at the [73] time, sent “us” some papers, is, of course, a complete non sequitur, and it is painfully apparent that she had no knowledge concerning the transfer or transmission of any papers from Bexar County to Harris County. Such “evidence,” based on a completely unwarranted inference, cannot, in good conscience, be accepted as a sufficient basis for depriving relator of his liberty. It falls woefully short of establishing that the child support order entered by the Bexar County court was entered in a suit affecting the parent-child relationship then pending in that court. TEX.FAM.CODE ANN. § 3.55(c) and (d) (Vernon 1975) permits transfer of causes of action upon dissolution of marriage when there are children. The order transferring “the complete files in all matters affecting the child” and directing the transmission of certified copies of all minute entries and temporary orders affecting the parties and the child tracks the language of TEX.FAM. CODE ANN. § 11.06(g) in effect at the time of the order transferring the case to Harris County. In the absence of evidence of probative force to the contrary, we must assume that the clerk of the Bexar County court performed the duty imposed on him by statute and by the court order. In Faulk v. White, 79 S.W.2d 910, 911 (Tex.Civ.App. — Dallas 1935, writ dism’d), the Wichita County court, after sustaining a plea of privilege, ordered the case transferred to Dallas County and directed the clerk to prepare a transcript of all orders in the case certify to it and sent it with the original papers to the clerk of the Dallas court. The Witchita County clerk sent the order sustaining the plea of privilege, together with the original papers in the case to the clerk of the Dallas County court, but did not make up a certified copy of all the orders. Nine months after the plea of privilege was sustained and the cause transferred, defendant filed in the Dallas court a motion to dismiss. The order of the Dallas court dismissing plaintiff’s suit was affirmed. In its affirming opinion, the Dallas Court of Civil Appeals said that after a plea of privilege is sustained it is “incumbent on the plaintiff” to cause the case to be transferred to the receiving court “and to cause the filing in that court of a proper transcript.” In the absence of the filing of a proper transcript in the receiving court, the defendant is entitled to assail “the transfer on the failure to have in [the receiving] court a proper transcript” and to have the case dismissed. We must be careful to avoid overlooking what was done in Faulk and not pay inordinate attention to the language of the opinion. What was affirmed was an order of the receiving court dismissing the case which had been ordered transferred to it. It is extremely difficult to understand how the receiving court can dismiss a case which, because of the failure of the clerk of the transferring court to perform his ministerial duty, has not really been “transferred” to such court and is, because of such clerical failure, still pending on the docket of the transferring court. A court has no power to dismiss a case pending on the docket of a court in a different county. The order transferring the case to Harris County became a final order 30 days after July 13, 1979, the date it was signed. Wichita Falls & S.R. Co, v. McDonald, 141 Tex. 555, 174 S.W.2d 951, 953 (1943). When the order transferring the case became final, the case stood as though it had originally been filed in Harris County and the Bexar County district court was powerless to deal with the subject matter of the case which it had ordered transferred. See Sherrill v. Sherrill, 359 S.W.2d 330, 332 (Tex.Civ.App. — Waco 1962, writ dism’d). If a court which orders a transfer of a case to another county lacks authority to permit a voluntary nonsuit after the order of transfer has become final, it cannot seriously be contended that such court can enter a judgment on the merits of the case, as the Bexar County court attempted to do in the divorce case which Alice originally filed in Bexar County and then had transferred to Harris County. If, as held in Faulk, the receiving court has power to dismiss the transferred case, despite the failure of the clerk of the transferring court to perform his ministerial duty, and [74] if, as held in Sherrill, the transferring court lacks power to enter a judgment of voluntary dismissal after the transfer order has become final, the unavoidable conclusion is that, given a final order of transfer, the case is pending on the docket of the receiving court and not pending on the docket of the transferring court. If a case is not pending on the docket a court obviously has no jurisdiction to do anything concerning the subject matter of such non-pending case. This is clearly a case of lack of jurisdiction over the subject matter, a jurisdiction which cannot be conferred by estoppel or by waiver. To permit the court clerk, simply by failing to perform his ministerial duty, to, in effect, set aside the order of transfer after such order has become final and restore the case to the docket of the transferring court, is to permit such clerk to do that which the transferring court cannot accomplish. CHAPA, J., concurs. BUTTS, J., dissents.