in Re: Robert Houser

6-96-028-CV Long Trusts v. Dowd

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-06-00083-CV

______________________________

IN RE: ROBERT HOUSER

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Original Mandamus Proceeding

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

            Robert Houser has filed a petition for writ of mandamus asking this Court to order the district court to "move upon the case" in his divorce filed against Jeri Houser. Robert Houser is presently incarcerated in the Telford Unit in New Boston, Texas, and is attempting to divorce his wife, who is evidently a resident of Louisiana. He states that she refused to waive service, and asks this Court to order the trial court to grant his petition for divorce since he has used every effort to obtain service on her.

            Mandamus issues only when the mandamus record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law and (2) the absence of a clear and adequate remedy at law. Cantu v. Longoria, 878 S.W.2d 131 (Tex. 1994); Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992).

            Houser argues that, since he has followed all court rules concerning service, he is entitled to have his petition placed on the court docket for processing, and asks us to order the trial court to do so. There are a number of rules that explain how service must be made on a defendant. In Houser's case, he states only that he attempted to contact his wife by mail and that his wife refused to respond to his request for waiver. In all cases, service or waiver must be obtained in order for the suit to proceed.

            Houser is thus required to attempt to obtain actual service on Jeri as set out in Tex. R. Civ. P. 106, by a person authorized pursuant to Tex. R. Civ. P. 103. See State Farm Fire & Cas. Co. v. Costley, 868 S.W.2d 298, 298–99 (Tex. 1993). There is no indication that Houser has made any effort to obtain service on his wife. His petition states only that he could not obtain a waiver of service.

            The trial court's jurisdiction is invoked by the party's appearance before the court, or by the lawful service of process on the party. TAC Am., Inc. v. Boothe, 94 S.W.3d 315, 318–19 (Tex. App.—Austin 2002, no pet.); see also Tex. R. Civ. P. 120, 124; Bird v. Kornman, 152 S.W.3d 154, 160 (Tex. App.—Dallas 2004, pet. denied). The trial court has acted within the bounds of the applicable law, and no abuse of discretion has been shown.

            We deny the petition.

 

                                                                        Jack Carter

                                                                        Justice

 

Date Submitted:          July 31, 2006

Date Decided:             August 1, 2006

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In The

  Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

 

                                                ______________________________

 

                                                             No. 06-10-00087-CV

                                                ______________________________

 

 

 

                IN THE INTEREST OF H.G., C.G., AND F.G., CHILDREN

 

 

                                                                                                  

 

 

                                       On Appeal from the 62nd Judicial District Court

                                                           Hopkins County, Texas

                                                          Trial Court No. CV39152

 

                                                                                                   

 

 

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                            Memorandum Opinion by Justice Moseley

                                                     MEMORANDUM  OPINION

 

            Suzette Prewitt, the sole appellant in this case, has filed a motion seeking to dismiss her appeal.  Pursuant to Rule 42.1 of the Texas Rules of Appellate Procedure, her motion is granted.  Tex. R. App. P. 42.1.

            We dismiss the appeal.

 

                                                                        Bailey C. Moseley

                                                                        Justice

 

Date Submitted:          October 13, 2010

Date Decided:             October 14, 2010