                                Fourth Court of Appeals
                                        San Antonio, Texas

                                   MEMORANDUM OPINION
                                            No. 04-18-00799-CV

                                     IN RE Abelardo G. GONZALEZ

                                      Original Mandamus Proceeding 1

Opinion by:       Marialyn Barnard, Justice

Sitting:          Marialyn Barnard, Justice
                  Luz Elena D. Chapa, Justice
                  Irene Rios, Justice

Delivered and Filed: December 19, 2018

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

           On October 24, 2018, relator filed a pro se petition for writ of mandamus complaining of

the trial court’s refusal to rule on his “Motion for Entry of No Answer Default.” Real party in

interest, Ponce Trevino, did not file a response to the petition. We conditionally grant the petition

for writ of mandamus.

                                                DISCUSSION

           Relator filed a pro se “Original Third-Party Petition . . . Affecting the Parent-Child

Relationship,” against four third-party defendants: Judge Jose Antonio Lopez, Ponce Trevino,

Nicholas Lichtenberger, and Robert Garcia. In November 2017, the trial court granted a motion

to dismiss filed by Judge Lopez and a plea to the jurisdiction filed by Lichtenberger and Garcia.


1
 This proceeding arises out of Cause No. 2017 FLI 001815 C3, styled In the Interest of M.A.G. and Z.A.G., Children,
pending in the County Court at Law No 2, Webb County, Texas, the Honorable Sid L. Harle presiding.
                                                                                      04-18-00799-CV


On February 20, 2018, relator filed “Motion for Entry of No Answer Default” asking the trial court

to enter a default judgment against Ponce Trevino, the last remaining third-party defendant. On

July 9, 2018, relator sent a letter to the respondent asking the trial court to rule on his motion. On

July 19, 2018, relator filed a motion to compel again asking the trial court to rule on his pending

motion.

       In October 2018, the trial court conducted a final hearing in the underlying matter. Relator

alleges that during the hearing, which he attended telephonically, he asked the trial court to rule

on his pending motion for a default judgment against Ponce. The trial court did not rule on his

motion, but, apparently, otherwise entered a judgment in the case. In his petition for writ of

mandamus, relator asserts he cannot appeal from that judgment because it is not yet final due to

his pending motion for a default judgment against a remaining party. Thus, relator asks this court

to compel the trial court to rule on his pending motion.

       Because the determination of whether a plaintiff is entitled to a default judgment requires

the exercise of the trial court’s discretion, this court does not have the authority to compel by

mandamus the entry of a default judgment. In re Ramirez, 994 S.W.2d 682, 683 (Tex. App.—San

Antonio 1998, orig. proceeding). However, the trial court does not have discretion to refuse to

hear and rule on a motion for default judgment “because a refusal to timely rule on a motion

frustrates the judicial system and constitutes a denial of due course of law.” Id.

       A trial court is required to consider and rule on a motion within a reasonable time. Id.

“‘When a motion is properly filed and pending before a trial court, the act of giving consideration

to and ruling upon that motion is a ministerial act,’ and mandamus may issue to compel the trial

judge to act.” Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.—San Antonio 1997,

orig. proceeding) (citation omitted). However, while we have jurisdiction to direct the trial court



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to proceed to judgment, we may not tell the court what judgment it should enter. Crofts v. Court

of Civil Appeals, 362 S.W.2d 101 (Tex. 1962) (orig. proceeding).

       Relator’s motion for a default judgment has been pending for over nine months. Relator

has attempted to bring the pending motion to the trial court’s attention in a motion to compel and

a letter. In his petition, relator also alleges he raised the pending motion in open court during the

October 2018 hearing. Because the trial court has erred by not ruling on relator’s motion for

default judgment within a reasonable time, we conditionally grant relator’s petition for writ of

mandamus. The writ will issue only if the trial court fails to consider and rule on relator’s motion

within fourteen days of this opinion.

                                                  Marialyn Barnard, Justice




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