In Re: Larry Dale Smith--Appeal from of County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-04-00055-CV

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IN RE:

LARRY DALE SMITH

Original Mandamus Proceeding

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

Larry Dale Smith, relator, has filed a petition for writ of mandamus asking us to overturn a default judgment entered by the 307th Judicial District Court that determined paternity and assessed child support against him. Smith is presently incarcerated and complains he had no opportunity to defend himself in this proceeding. He has enclosed a copy of a judgment signed November 5, 2003, and a copy of a notice of appeal dated December 4, 2003.

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, 132 (Tex. 1994); Walker v. Packer, 827 S.W.2d 833, 839 40 (Tex. 1992).

Under the facts presented by this case as set out by the relator, there is an adequate remedy by appeal. See Tex. R. App. P. 26.1. Accordingly, mandamus cannot lie.

We deny the petition.

Donald R. Ross

Justice

Date Submitted: May 4, 2004

Date Decided: May 5, 2004