In Re: Robert Houser--Appeal from of County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-06-00083-CV

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IN RE: ROBERT HOUSER

Original Mandamus Proceeding

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