
Opinion issued February 19, 2004


     












In The
Court of Appeals
For The
First District of Texas




NO. 01-03-00641-CV




IN RE MICHAEL A. FLORES, Relator




Original Proceeding on Petition for Writ of Mandamus




O P I N I O N
          The issue presented in this petition for writ of mandamus is whether a trial
court may refuse to set a case for trial because of a party’s refusal to pay interim
attorney’s fees, which the trial court had previously ordered to be paid to the
opposing party.  We hold that, in this case, it may not, and, accordingly, conditionally
grant the petition for writ of mandamus.
          Relator, Michael Flores, and real party in interest, Tiffany Woodward, were
divorced on September 21, 2000.  The parties are the parents of two minor children. 
According to the record, the relationship between the parties has been acrimonious
and litigious.  After several legal skirmishes, Michael filed a motion to modify the
parent-child relationship, seeking to have the exclusive right to determine the primary
residence of the children and to make educational decisions for the children.  Tiffany
then filed a motion for interim attorney’s fees, pursuant to section 105.001(a)(5) of
the Family Code.  See Tex. Fam. Code Ann. § 105.001(a)(5) (Vernon Supp. 2004). 
The trial court granted Tiffany’s motion, ordering Michael to deposit $4000 as
interim attorney’s fees, which Michael failed to do.  Tiffany then filed a motion to
strike the upcoming trial setting because of Michael’s failure to pay the interim
attorney’s fees. 
          The trial court held a hearing on the motion to strike the trial setting, at which 
the parties discussed a Dallas Court of Appeals case entitled Baluch v. Miller, 774
S.W.2d 299 (Tex. App.—Dallas, orig. proceeding).
[Counsel for relator]: This is simply a failure to pay attorney’s fees,
Judge, that’s all it is.  We’re not talking about not showing up for a
deposition or not completing discovery, we’re talking about failure to
pay interim fees.  It is error for a trial court to deny someone their
constitutional right to go to trial under these circumstances and the
motion should be denied.
 
* * * *

 
[The Court]: I’m not possessed of a reputation for being overly generous
with attorney’s fees, I think if truth be told.  If you lawyers or the other
lawyers in the courtroom answered honestly, it would probably be
generally held that some other judges are more generous than I am with
attorney’s fees.  And in response to numerous requests that [counsel for
real-party-in-interest] has made I granted $2,000 in the last case and
then it seems to me the only reason that I set that order aside was
because I ordered $4,000 in this case.  I find it unsettling that a party
could decline to obey orders of the Court and still take up the public’s
time in a jury trial.  So, I’m going to abate this setting for next week
while [counsel for real-party-in-interest], you try to tell me in writing by
a short memoranda that this Dallas Court of Appeals decision is not the
current law.  And, [counsel for relator], you may, if you wish, get some
direction, even by mandamus if you wish, from a Court of Appeals. . .
. . . I’m conditionally granting his motion. I’m abating this trial setting. 
I don’t want to delay this trial indefinitely, but I’ve got a problem with
our orders not being obeyed by the movant. . . . . Yeah. I’m kind of
interested in having you mandamus me.
 
[Counsel for relator]: I’ve never done that before to you, Judge.
 
[The Court]: Well, I’m not offended.  I think the Appellate Court–our
Appellate Court–I’m not bound by what a Dallas Court of Appeals says. 
And it’s a legitimate question: Should I prohibit somebody from getting
to trial if they haven’t put up attorney’s fees?  It hardly seems fair to say
yes in this particular set of circumstances when this has been ongoing
for probably two years.  On the other hand, the — the basic import of the
question sounds unfair to a movant, you know, that his access to a
courthouse is locked absent payment of money. . . . But, I felt strongly
enough, this person who is very— what is the word that’s not politically
incorrect?  Tight. — this tight judge that awarded $4,000 in fees and
none of them have been paid.  I’m kind of nonplused by that.  So, yes,
I’m going to grant the motion for this time if you’ll get an answer from
the Appellate Court.  And if they say I can’t do it, I’ll put you back on
the fast track to get back to trial.

          * * * *
 
[Counsel for relator]: This is not a divorce proceeding, this is a
modification proceeding.  That order is not for child support.  That order
is not for the best interest of the children.  That order simply says pay
attorney’s fees.  Therefore, it is a debt.  And what the Court effectively
is doing is barring someone from the courthouse for not paying a debt.
. . . . I believe you can handle this effectively, Judge, by – at the end of
the case.  If I was [sic] to win the case, you could adjust the attorney’s
fees at that point or if [the real party-in-interest] was [sic] to win the
case, you could accordingly put the attorney’s fees there.  I think there
is adequate protection for the Court.  So, I would respectfully ask the
Court to reconsider its decision.

          In Baluch, the trial court refused to set a case for trial or to hear any other
temporary matters until the relator paid $25,000 in interim attorney’s fees.  Id. at 299. 
The relator filed a petition for writ of mandamus, contending that the trial judge had
no authority to refuse to proceed to trial.  Id. at 301.  The trial judge responded that
she had no way to enforce the award of interim attorney’s fees other than by refusing
to set the case for trial until the fees were paid.  Id.  Nevertheless, the Dallas court of
appeals concluded that the trial court had no authority to stay the trial court
proceedings until the interim attorney’s fees were paid.  Id. at 302.
          Although we share the trial court’s frustration in this situation, we agree with
the Dallas Court of Appeals and hold that there is no authority for the trial court to
refuse to proceed to trial under these circumstances.  We do not believe that the trial
court may compel compliance with its order of interim attorney’s fees by refusing to
set a case for trial.  We agree with the Dallas Court of Appeals that “the effect of [the
trial court’s] denial of that motion is to refuse to proceed to trial and judgment until
the occurrence of an uncertain future event.”  Id.  As such, we hold that the refusal
to proceed to trial under these circumstances is a denial of relator’s access to the
courts under due course of law.  Tex. Const. art. I, §§ 13, 19.  While we do not have
mandamus power to compel the trial judge to reach a result that necessarily involves
his discretion, we may mandamus him to hold a trial or hearing and exercise his
discretion.  Baluch, 774 S.W.2d at 302.
          Accordingly, we conditionally grant the writ and order the trial court to
proceed to trial.  Only if he fails to do so will mandamus issue.  We express no
opinion about other remedies that the trial court might use to compel compliance with
its order.
                                                             Sherry Radack
                                                             Chief Justice

Panel consists of Chief Justice Radack and Justices Keyes and Alcala.

