in Re: Joseph Alarcon Gonzales, Relator ( 2004 )

NO. 07-04-0436-CV

NO. 07-04-0437-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

AUGUST 26, 2004

______________________________



IN RE JOSEPH ALARCON GONZALEZ, RELATOR



_________________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.

ON EMERGENCY MOTION FOR TEMPORARY RELIEF  

By our opinion of January 27, 2004, in Cause No. 07-03-0261-CV, we reversed the judgment of the trial court and rendered judgment in favor of Ashley Gutierrez and Joseph Alarcon Gonzalez. On August 13, 2004, the Texas Supreme Court denied a motion for rehearing of the petition for review, and on August 23, 2004, the Clerk of this Court issued mandate to the 181^st District Court of Randall County. ⁽¹⁾

Now, pending before this Court is a petition for writ of mandamus and petition for writ of prohibition filed on August 26, 2004, by relator Joseph Alarcon Gonzalez, a party in trial court cause numbers 51,715-B and 54,925-B, styled In the Interest of Savannah Sierra Gutierrez, A Child, wherein Jeffrey Donald Gurney and Alicia Munoz Gurney are respondents. By his emergency motion for temporary relief, relator Joseph Alarcon Gonzalez, the natural father of Savannah Sierra Gutierrez, requests this Court order the hearing set for Friday, August 27, 2004, at 1:30 p.m. before the Honorable James Anderson, Judge of the County Court at Law in and for Randall County, Texas, be stayed.

The motion for emergency relief is denied; however, counsel for Jeffrey Donald Gurney and Alicia Munoz Gurney are directed to file responses to the petition for writ of mandamus and petition for writ of prohibition no later than Thursday, September 2, 2004. This order is subject to further orders of the Court.

It is so ordered.

Per Curiam

1. See Harris County Children's v. Olvera, 971 S.W.2d 172 (Tex.App.-Houston 14^th Dist. 1998) holding when an appellate court renders a judgment in a case, the district court has no jurisdiction to review, interpret or enforce it. It must observe and carry out the mandate of the appellate court.

orig. proceeding).

Additionally, no bright-line demarcates the boundaries of a reasonable time period. Bates, 2001 WL 513450 at *1, at ___. Its scope is dependent upon a myriad of factors, not the least of which is the trial court's actual knowledge of the motion or request, its overt refusal to act on same, the state of the court's docket, and the existence of other judicial and administrative matters which must be addressed first. Id. So too must the trial court's inherent power to control its own docket be factored into the mix. See Ho v. University of Texas at Arlington, 984 S.W.2d 672, 694-695 (Tex. App.--Amarillo 1998, pet. denied) (holding that a court has the inherent authority to control its own docket). Finally, because it is the burden of the party requesting mandamus relief to prove his entitlement to same, Bates, 2001 WL 513450 at *1, at ___, Rey had the obligation to provide us with evidence of the foregoing indicia (or the like) against which we could test the reasonableness of the respondent's supposed delay.

Here, however, we have no evidence of the number of other cases, motions, or issues pending on the trial court's docket, the number of cases, motions, or issues which have pended on its docket longer than that at bar, the number of cases, motions, or issues pending on its docket that lawfully may be entitled to preferential settings, or the trial court's schedule. Without such evidence, any attempt to assess whether the unknown respondent unreasonably delayed in disposing of the divorce proceeding would be mere folly. Nor can we say that the mere passage of six months from the date on which the divorce was initiated evinces unreasonable delay as a matter of law. Again, a trial court has great discretion over its docket. And, while it cannot opt to unreasonably delay hearing an action, no litigant is entitled to a trial at whatever time he may choose. ⁽¹⁾

Accordingly, the petition for writ of mandamus is denied.

Per Curiam

Do not publish.

1. Indeed, nothing of record illustrates that the person whom Rey seeks to divorce has been served with citation and suit as per the dictates of the Texas Rules of Civil Procedure or statute. At most, Rey merely asserts in his "original petition for divorce" that he "forward[ed]" a copy of the document to his purported wife. To the extent that Rey has not effectuated service upon his wife, the trial court has no personal jurisdiction over her to grant any divorce.