Court of Appeals of Texas, Seventh District, Amarillo
IN THE INTEREST OF M.N.H. AND A.N.H., MINOR CHILDREN
Appeal from the County Court at Law No. 3 Lubbock County,
Texas Trial Court No. 2010-552, 571, Honorable Ann-Marie
QUINN, C.J., and CAMPBELL and PARKER, JJ.
T. CAMPBELL JUSTICE
Johnny Julian Herrera, a Texas prison inmate appearing pro se
and in forma pauperis, filed a suit affecting the
parent-child relationship, seeking reduction of his child
support obligation. Respondent in the trial court, Michelle
Lee Gray, was not served with process and made no appearance
there or in this court. After the trial court dismissed
Herrera's suit for want of prosecution Herrera appealed,
assigning two issues. We will overrule both issues and affirm
the trial court's dismissal order.
record demonstrates that Herrera and Gray are the parents and
joint managing conservators of two children. Gray holds the
exclusive right to designate the children's primary
residence in "Lubbock or any contiguous county."
Herrera is obligated to pay child support.
motion filed September 5, 2017, Herrera requested the trial
court to modify a child support order signed June 4, 2010. He
sought reduction of the amount of his support obligation with
retroactive application of the modification. The motion named
Gray as respondent but did not contain an address for service
of citation. Along with the motion, Herrera filed an
affidavit asserting his indigence.
next case activity shown by the record was a document signed
by the trial court on January 22, 2018, entitled "Notice
of Intent to Dismiss-No Service of Citation." The notice
explained the case was eligible for dismissal for want of
prosecution because of the lack of service and it would
"be set for a Dismissal Docket, unless one of the
following actions is taken within 30 days of this notice: 1.
Service by citation is obtained[;] 2. A waiver of
citation/service is filed; or 3. An order granting a verified
motion to retain is obtained." Herrera responded on
February 19 by filing an unverified motion to retain
asserting it was the district clerk's duty to issue
order signed April 13, the trial court set a dismissal
hearing for May 25 to consider Herrera's failure to
respond to its January 22 notice. On May 8, Herrera filed a
"2nd Motion to Retain." While supported by an
unsworn declaration, it did not contain an address for Gray.
The record provides no indication a hearing was conducted on
21 the trial court signed an order setting a hearing for July
27 to consider dismissal for want of prosecution of
Herrera's case. According to the order, the proposed
ground for dismissal was Herrera's failure to respond to
its January 22 notice. In a finding of fact, the court stated
Herrera did not appear for the July 27 hearing. The record
does not contain a reporter's record from the hearing.
30, the district clerk file-marked Herrera's "1st
Amended Petition to Modify Child Support" which stated
Gray's residence was "unknown" and she should
be served by publication. Tex. Fam. Code Ann. § 102.010
(West 2019). In an affidavit filed at the same time, Herrera
stated Gray was a "transient person." Also file
marked on July 30 was Herrera's motion to appear at the
July 27 hearing by telephone or other means. In the motion,
Herrera stated that while his personal appearance at the
hearing was unnecessary he should be permitted to appear by
telephone. The record does not contain a signed written order
ruling on Herrera's request to appear by telephone or
September 10, the court signed an order dismissing
Herrera's case for want of prosecution. According to the
order, Herrera "failed to comply with the notice"
and "failed to remedy the issue at the dismissal
hearing[.]" On Herrera's request, the court filed
findings of fact and conclusions of law. Herrera did not file
a motion to reinstate. Tex.R.Civ.P. 165a(3). This appeal