dissenting.
I dissent from the opinion denying the motion for leave to file the petition for writ of mandamus. The underlying lawsuit is a will contest pending before Judge Black-stock, the respondent, in County Court at Law Number Three and Probate Court of Brazoria County. William E. Frink, the relator, filed a motion for leave to file a petition for writ of mandamus, complaining that Judge James Blackstock ordered him to appear at every contested hearing. The real party in interest is Julia Loraine Pickle Kleiber, the other party in the suit below.
Mr. Frink is a resident of Kansas and says that the court’s order will cause him great inconvenience and expense. Mr. Frink argues that the court’s order violates his right to equal protection under the United States Constitution because Ms. Kleiber, who is a resident of Texas, is not required to attend every hearing.
To prove the substance of the trial court’s order, Mr. Frink filed an excerpt from a hearing, quoted in the majority’s opinion. At that hearing, Judge Black-*605stock stated he was of the opinion that the situation between the two parties was not equal because Frink enjoyed “the luxury of appearing through counsel,” which he did not think fair. It is not a “luxury” to appear by counsel. It is a right, granted by our rules of procedure and protected by the Constitution of the United States.
Rule 7 of the Texas Rules of Civil Procedure states:
Any party to a suit may appear and prosecute or defend his rights therein, either in person or by an attorney of the court.
The trial court’s ruling violates rule 7. See Rainwater v. Haddox, 544 S.W.2d 729, 732 (Tex.App.—Amarillo 1976, no writ) (whatever a person has the legal capacity to do, he may do through his attorney). I cannot imagine any situation that could possibly justify such a ruling.
Rule 121(c) of the Texas Rules of Appellate Procedure states that we should grant leave to file if we are of the tentative opinion that relator is entitled to the relief he seeks. I am of the tentative opinion that Mr. Frink is entitled to the relief he seeks. Rule 121(c) also states that we may request the respondent or the real party in interest to reply to the motion for leave to file the petition for writ of mandamus. We may ask for a reply without granting leave to file; rule 121 does not require that we first grant leave to file. We should, at a minimum, invite a response to the petition for leave to file to explain Judge Black-stock’s ruling.
The majority faults Mr. Frink for not providing us with a written order. More than once, we have granted mandamus on an oral order when the party has provided a transcript of the hearing where the order was pronounced. See, e.g., Hardy v. McCorkle, 765 S.W.2d 910, 914 (Tex.App.—Houston [1st Dist.] 1989) (orig. proceeding) (writ of prohibition issued on oral order). The majority faults Mr. Frink for not providing us with the context of the order. By its very nature, a mandamus action is a slice of what happened at the trial. Today’s opinion will require future relators to provide a full transcription of a large part of a case. The majority faults Mr. Frink because he has not shown that the order is enforceable. If the majority is taking the position that an oral order, pronounced in open court and on the record, is not enforceable until it is reduced to writing, today’s opinion will have consequences far beyond this mandamus proceeding.
The majority states that To hold that respondent abused his discretion, without knowing the context in which this issue arose, we would be constrained to conclude that such action constitutes an abuse of discretion in every conceivable situation that might be confronting the respondent.
With all due respect, the majority is wrong. If we granted a mandamus on this record, the majority would be correct. This, however, is not a mandamus; this is merely the motion to grant leave to file the petition for the mandamus.