Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-18-00799-CV

IN RE Abelardo G. GONZALEZ

Original Mandamus Proceeding1

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.
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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