Court of Appeals
Tenth Appellate District of Texas
10-26-00321-CV
In re Mackinsey Lynn Johnson
Original Proceeding
JUSTICE SMITH delivered the opinion of the Court.
MEMORANDUM OPINION
Mackinsey Lynn Johnson filed a petition for writ of mandamus
requesting this Court to direct the 85th Judicial District Court of Brazos
County, Texas to vacate the portions of its August 3, 2026 temporary order
requiring her to pay Samuel Austin Spivey’s attorneys’ fees and related
provisions. We conditionally grant the petition.
BACKGROUND
On March 27, 2026, the trial court rendered its order in the parties’ suit
to modify the parent-child relationship. The modification order revised the
possession schedule and required Johnson to pay Spivey’s attorneys’ fees.
Johnson filed a notice of appeal in this Court which has been assigned cause
number 10-26-00230-CV and remains pending. She also filed a motion for emergency relief in the trial court requesting the court suspend enforcement
of the possession provisions pending appeal. In Spivey’s response to Johnson’s
motion, he moved for temporary orders requiring Johnson to pay his appellate
attorneys’ fees. After a hearing, the trial court denied Johnson’s motion and
granted Spivey’s motion. The court ordered Johnson to pay attorneys’ fees of
$8,839.50 and $40,200 on or before 5:00 p.m. on August 10, 2026. The court
also awarded Spivey a money judgment in each amount.
With this petition for writ of mandamus, Johnson filed an emergency
motion for temporary relief requesting this Court enter an order staying the
August 10, 2026 payment deadline, the portions of the order requiring her to
pay attorneys’ fees, and the enforcement provisions in the order. On August
10, 2026, this Court granted the motion for emergency relief, issued a
temporary stay order, and ordered Spivey to file a response.
APPELLATE ATTORNEYS’ FEES
In her petition, Johnson asserts the trial court abused its discretion by
ordering her to pay Spivey’s appellate attorneys’ fees because the evidence does
not show that the payment is necessary to preserve or protect the child’s safety
or welfare during the appeal. She contends the record shows litigation
equalization and coercive appellate fee-shifting.
In re Johnson Page 2
In his response, Spivey asserted that Johnson failed to preserve her
complaint for mandamus review and contends that she has an adequate
remedy by appeal.
Preservation
Error-preservation rules generally apply to original proceedings, and
arguments not presented to the trial court cannot first be considered in a
mandamus proceeding. See TEX. R. APP. P. 33.1; In re Polymerica, LLC, 271
S.W.3d 442, 448 (Tex. App.—El Paso 2008, orig. proceeding). Spivey claims
that Johnson failed to preserve her complaint for review because she “did not
file a motion for reconsideration or any other motion in the trial court”
challenging the temporary order. He cites to In re Fredenberg, No. 12-26-00075-CV, 2026 WL 1191282, at *4 (Tex. App.—Tyler Apr. 30, 2026, orig.
proceeding) (mem. op.), in which the Tyler Court of Appeals denied mandamus
because the relator failed to make a predicate request challenging the
temporary order in the trial court. Unlike the relator in Fredenberg, Johnson
objected to the award of attorneys’ fees under Section 109.001 multiple times
on the basis of insufficient evidence to support a finding that the fees were
necessary to preserve and protect the child’s safety and welfare pending
In re Johnson Page 3 appeal. The trial court overruled Johnson’s objections and granted a running
objection on this ground. We find that Johnson preserved her complaint.
Standard of Review and Applicable Law
In a suit affecting the parent-child relationship, a trial court may render
temporary orders “necessary to preserve and protect the safety and welfare of
the child during the pendency of an appeal,” including an order that “require[s]
payment of reasonable and necessary attorney’s fees, court costs, and
expenses.” TEX. FAM. CODE ANN. § 109.001(a)(5). A party may seek review of
the trial court’s temporary order under Section 109.001 by petition for writ of
mandamus or by appeal. Id. § 109.001(b-5).
We grant the extraordinary relief of mandamus only when the trial court
has clearly abused its discretion, and the relator lacks an adequate appellate
remedy. In re H.E.B. Grocery Co. L.P., 492 S.W.3d 300, 302 (Tex. 2016) (orig.
proceeding) (per curiam). A trial court abuses its discretion if it reaches a
decision so arbitrary and unreasonable that it is a clear and prejudicial error
of law or if it fails to correctly analyze or apply the law to the facts. Id. at 302-03; Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding).
We defer to a trial court’s factual determinations that have evidentiary
In re Johnson Page 4 support, but we review the trial court’s legal determinations de novo. In re
Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding).
Inadequate Remedy By Appeal
When a trial court’s temporary orders under Section 109.001 require the
immediate payment of attorneys’ fees, review of the award during a pending
appeal does not provide an adequate remedy at law. In re Wiese, No. 03-15-00062-CV, 2015 WL 4907030, at *1 (Tex. App.—Austin August 12, 2015, orig.
proceeding) (mem. op.) (on reh’g). Spivey argues that Johnson now has an
adequate remedy on appeal because this Court granted her motion temporarily
staying payment of the attorneys’ fees pending disposition of her mandamus
petition, and the trial court signed an order abating the payment deadline to
fourteen days after this Court rules on the mandamus petition. We disagree
with Spivey’s contention.
The appellate-adequacy inquiry does not turn upon on whether a court
has granted temporary relief to prevent the very harm that makes direct
appeal inadequate; rather, it turns upon the character of the underlying
order—here, an order mandating immediate fee payment—and the practical
impossibility of reversing compliance after the fact. See id. at *1-3. As
illustrated by Wiese, courts may order temporary relief and still reach the
In re Johnson Page 5 merits of the mandamus petition as to fee awards in Section 109.001 temporary
orders. See id. Mandamus is therefore appropriate to review and, if
warranted, correct the fee component of the temporary order despite the
existence of a temporary stay.
We find that Johnson has no adequate appellate remedy.
Abuse of Discretion
Challenges to the legal and factual sufficiency of the evidence are
relevant factors in our assessment of whether or not the trial court abused its
discretion. In re Rogers, 370 S.W.3d 443, 445 (Tex. App.—Austin 2012, orig.
proceeding). In reviewing the evidence in the context of an abuse-of-discretion
standard, we engage in a two-pronged inquiry: “(1) whether the trial court had
sufficient information on which to exercise its discretion; and, if so, (2) whether
the trial court erred in its application of discretion based on that information.”
Id.
Johnson asserts that Spivey’s evidence shows no present threat to the
child’s well-being or security from harm, loss, or the threat of harm or loss
during the appeal. She contends that Spivey identified no present child need
that would go unmet, and his witnesses tied the requested award to litigation
expense, appeal defense, and stopping continued litigation. In short, she
In re Johnson Page 6 argues that Spivey’s evidence does not prove that requiring Johnson to pay
$49,039.50 by August 10, 2026 is necessary to preserve and protect the child’s
safety or welfare during the appeal.
Spivey testified that he borrowed money from his parents to pay his
attorneys’ fees. They executed written loan documents showing that his
payments begin August 1, 2027. He testified that taking out the loans was
necessary and in the child’s best interest. He explained that, if he has to pay
the fees, clothing for the child “is not the first area I would cut” and that “no
matter what happens she will be clothed and fed.” He said it is a question of
“quality of life.” He testified that he will still provide her with school supplies
and medical care, and she will not become homeless. But, if he has to pay the
fees, there will be a cost to himself. While he could not point to a specific need
that he would not be able to meet, he expected a “standard of living decrease”
if Johnson did not pay his appellate fees. When there is “less money to provide”
he would spend less on entertainment and buy cheaper food and cheaper
clothes. However, he would make certain the child’s needs are met. He
explained that payment of appellate fees would “cut into my life, my daughter’s
life, my household” because “you only have such a pool to draw from” and there
would be “smaller and smaller pieces of the pie.” When asked how shifting his
In re Johnson Page 7 attorney’s fees to Johnson is necessary to protect the child’s safety and welfare
during the appeal, Spivey replied, “[b]ecause otherwise we’re going to be in
court until the end of time.”
Both of Spivey’s attorneys testified as to the fees they are charging,
saying the fees are reasonable, necessary and customary in the community.
His appellate attorney testified that when her $30,000 retainer runs out, if
Spivey cannot replenish it, she will no longer represent him. She explained
that, if he cannot pay an attorney, it affects his ability to win.
The best interest of the child is not the proper standard under Section
109.001. In re Jenkins, No. 10-21-00169-CV, 2021 WL 4080260, at *2 (Tex.
App.—Waco Sept. 8, 2021, orig. proceeding) (mem. op.). Spivey had the burden
of showing that the requested temporary order to pay his attorneys’ fees is
necessary to preserve and protect the safety and welfare of the child during the
pendency of the appeal. TEX. FAM. CODE ANN. § 109.001(a); In re Jenkins, 2021
WL 4080260, at *2. Spivey testified that if he paid his own attorneys’ fees the
family’s standard of living would decrease, but he would make certain the
child’s needs were met. He did not explain how the child’s safety and welfare
would be impacted if he had to pay the fees. When asked how ordering Johnson
to pay his fees is necessary to protect the child’s safety and welfare during the
In re Johnson Page 8 appeal, Spivey’s response centered on his concern that the litigation would
continue indefinitely.
We find that the evidence is insufficient for the trial court to find that
ordering Johnson to pay Spivey’s appellate attorneys’ fees was necessary to
preserve and protect the safety and welfare of the child during the pendency of
the appeal. See TEX. FAM. CODE ANN. § 109.001; In re Jenkins, 2021 WL
4080260, at *3.
CONCLUSION
We conditionally grant Johnson’s petition for writ of mandamus and
direct the trial court to vacate the portion of its August 3, 2026 order ordering
Johnson to pay $8,839.50 and $40,200 in appellate attorneys’ fees on or before
5:00 p.m. on August 10, 2026 and the money judgments awarded to Spivey in
the amounts of $8,839.50 and $40,200. The writ will issue only if the trial court
fails to act as directed herein within twenty-one days of this opinion. We lift
this Court’s August 10, 2026 order staying the underlying order for attorneys’
fees.
STEVE SMITH
Justice
In re Johnson Page 9 OPINION DELIVERED and FILED: September 10, 2026
Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Writ conditionally granted
OT06
In re Johnson Page 10