Dancy v. Daggett

• Court: Texas Supreme Court
• Writing for the Court: PER CURIAM
• Citation: Dancy v. Daggett, 815 S.W.2d 548 (Tex. 1991)
• Decision Date: 18 September 1991
• Docket Number: No. D-1069,D-1069
• Parties: Leonard Charles DANCY, Sr., Relator, v. The Honorable Allen J. DAGGETT, Judge, Respondent.

Page 548

815 S.W.2d 548

Leonard Charles DANCY, Sr., Relator, v. The Honorable Allen J. DAGGETT, Judge, Respondent.

No. D-1069.

Supreme Court of Texas.

Sept. 18, 1991.

Gerald E. Bourque, Houston, for relator.

Ivy V. Ricketts, Houston, for respondent.

ON MOTION FOR REHEARING

PER CURIAM.

We grant Relator's motion for rehearing and issue the following opinion.

Leonard Dancy seeks mandamus relief from temporary orders issued in his divorce proceeding. We conditionally grant the requested relief.

The 310th Judicial District Court, Daggett, J., set a hearing on temporary orders in Dancy's divorce action for April 16, 1991. After that setting, Dancy's counsel, Gerald Bourque, received notice of an April 16, 1991 hearing in federal court on a separate matter: a criminal case in which Bourque was the defendant's counsel of record. Bourque promptly filed a motion to reset the hearing in the divorce case, attaching a copy of the notice he had received from the federal court.

Bourque appeared as scheduled at the April 16 hearing in federal court. On the same date, Judge Daggett reset the hearing in the divorce case for 9:00 a.m. on April 17.

On the morning of April 17, Bourque's secretary informed the 310th Judicial District Court that the federal case had been continued, and that Bourque would be unable to appear for the hearing in the divorce action. Subsequently, the judge in the federal case telephoned Judge Daggett and informed him that Bourque's attendance was still required in federal court. Nonetheless, Judge Daggett refused to postpone the hearing. At the close of the hearing, Judge Daggett awarded Dancy's wife custody of the couple's children and possession of the family home, and ordered Dancy to pay approximately $1,000 per month in child support and spousal maintenance.

After the trial court overruled his motion for rehearing, Dancy sought mandamus relief in the court of appeals. The court of appeals noted its strong disapproval of the trial court's actions, but still denied leave to file, stating, "We do not have the discretion to find that the trial court abused his discretion." 809 S.W.2d 629, 630 (citing Hooks v. Fourth Court of Appeals, 808 S.W.2d 56 (1991)).

In Hooks, we held that "a court of appeals does not possess independent discretion to grant or deny mandamus against a trial court." 808 S.W.2d at 59 (emphasis added). Rather, "[a]ny discretion is vested in the trial court, and the question before this court is whether the court of appeals erred in granting the writ of mandamus." Id. (citing Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917-18 (Tex.1985)). Our holding in Hooks did not alter the long-standing rule that mandamus may issue to correct a clear abuse of discretion by a trial court. See, e.g., Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434, 440 (1959).

In the present case, the trial court's actions violated local rules regarding conflicts in docket settings, ¹ and effectively deprived Dancy of representation at the hearing on his divorce case. Under these circumstances, we hold that the trial court abused its discretion by refusing to continue the proceedings until such time as Dancy's counsel was available. We further hold that mandamus is an appropriate remedy under these facts...