Dancy v. Daggett

OPINION PER CURIAM. On May 3, 1991, relator filed his motion for leave to file his petition for writ of mandamus in this Court pursuant to section 22.221 Tex.Gov’t Code Ann. (Vernon 1989). A hearing for temporary orders on the divorce suit by the real party in interest was set for April 16, 1991. The attorney for the respondent in that suit was involved in a pre-trial hearing in a criminal case in federal district court in Beaumont. A motion for continuance was granted by Judge Daggett until the following morning. The hearing in federal court was still in progress the following morning, and the federal district judge telephoned Judge Daggett to so inform him. Judge Daggett *630 still refused to continue the hearing for temporary orders, and proceeded to conduct the hearing and entered the temporary orders, all in the absence of relator’s counsel. Relator then filed a motion for rehearing which Judge Daggett denied because relator’s allegations were “not true” even though all matters of fact were supported by affidavit. Relator asks that we void the temporary orders and order Judge Daggett to conduct another hearing. While we strongly disapprove of the trial court’s actions, we are limited in remedying such actions by mandamus. The rules provide a trial judge with the discretionary tools to facilitate the litigation of lawsuits, and to a certain extent, to prevent abuse of the legal process. This discretion is therefore appropriately broad. Waguespack v. Halipoto, 633 S.W.2d 628 (Tex.App.— Houston [14th Dist.] 1982, writ dism’d). We do not have the discretion to find that the trial judge abused his discretion. Hooks v. Fourth Court of Appeals, 808 S.W.2d 56 (1991). Docket control is exclusively within the province of the trial court, and we cannot usurp that function through an extraordinary mandamus proceeding. Motion for leave to file relator’s petition for writ of mandamus is denied. Sears, J., not participating.