in Re Oliver Jay Lewis ( 2004 )

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-04-081-CV

IN RE OLIVER JAY LEWIS RELATOR

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ORIGINAL PROCEEDING

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MEMORANDUM OPINION ^{(footnote: 1)}

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The court has considered relator's petition for writ of mandamus and is of the opinion that relief should be denied.   See In re Ramirez , 994 S.W.2d 682, 683 (Tex. App.—San Antonio 1998, orig. proceeding) (holding that because determination of whether default judgment is proper is discretionary, mandamus to compel entry of default judgment is not appropriate); see also Tex. R. Civ. P. 124, 239 (providing that trial court cannot enter default judgment unless defendant has been served). ^{(footnote: 2)}  Accordingly, relator's petition for writ of mandamus is denied.

PER CURIAM

PANEL A: LIVINGSTON, DAUPHINOT, and McCOY, JJ.

DELIVERED:  March 25, 2004

FOOTNOTES

1:

See Tex. R. App. P. 47.4 .

2:

We note that only the district court, and not this court, has jurisdiction to issue a writ of mandamus compelling the district clerk to serve the divorce petition on Beverly Lewis.   See Tex. Gov’t Code Ann. §§ 22.221(b), 24.011 (Vernon 2004).