in Re Bennie Ray Smith

Opinion issued October 22, 2002

In The

Court of Appeals

For The

First District of Texas

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NO. 01-02-01087-CV

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IN RE BENNIE RAY SMITH, Relator

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Original Proceeding on Petition for Writ of Mandamus

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O P I N I O N

Relator, Bennie Ray Smith, has filed a petition for writ of mandamus complaining of Judge Ernst's ⁽¹⁾ October 9, 2002 order, dismissing his petition for divorce. We deny relator's petition because relator has an adequate remedy by appeal.

To be entitled to relief by writ of mandamus, relator must demonstrate that the trial judge has committed a clear abuse of discretion or violated a legal duty, and that relator lacks an adequate remedy by appeal. See Walker v. Packer, 827 S.W.2d 833, 842 (Tex. 1992) (orig. proceeding). Here, relator has an adequate remedy by appeal. Relator may appeal the dismissal of his petition for divorce by filing a notice of appeal containing the information specified in Tex. R. App. P. 25.1(c) with the trial court clerk by the 30th day following the signing of the dismissal and serving a copy of the notice on all parties. See Tex. R. App. P. 26.1. Relator must also file with the trial court clerk, with or before filing his notice of appeal, an affidavit of indigence containing all of the information specified in Tex. R. App. P. 20.1(b).

Because relator has an adequate remedy by appeal, we deny the petition for writ of mandamus.

PER CURIAM

Panel consists of Justices Hedges, Keyes, and Evans. ⁽²⁾

Do not publish. Tex. R. App. P. 47.

1.

The Honorable Erwin Ernst, Senior Judge of the 12th/278th District Court of Walker County. The underlying suit is trial court cause no. 14,526, styled In the Matter of the Marriage of Bennie Ray Smith and Regina Gay Smith, and in the Interest of Kory Jurae Smith and Te'Ann Larae Smith, Minor Children.

2.

The Honorable Frank Evans, former Chief Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.