# Garcia v. Daggett

> Texas Court of Appeals, 1st District (Houston) · December 8, 1987 · 742 S.W.2d 808

URL: https://www.frixlaw.com/law-library/cases/9644899

## Case

- **Full name:** Randall Anthony GARCIA, Relator, v. Honorable Allen DAGGETT, Judge of the 310th District Court of Harris County, Texas, Respondent
- **Court:** Texas Court of Appeals, 1st District (Houston)
- **Decided:** December 8, 1987
- **Citations:** 742 S.W.2d 808; 1987 Tex. App. LEXIS 8992; 1987 WL 202
- **Precedential status:** Published
- **Opinion:** Dissent by Levy
- **Judges:** Smith, Levy, Hoyt
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9644899

## How later opinions describe it (automated extraction)

- stating that, after death of one party to divorce action, “the trial court was without jurisdiction to issue any orders based on the underlying divorce action”

## Opinion text

LEVY, Justice,
dissenting.
I must reluctantly dissent because of the extraordinary facts of this case and the risks necessarily involved.
Ordinarily, as the majority opinion holds, the death of a party automatically abates the pending divorce action and associated issues of child custody and property rights. Whatley v. Bacon, 649 S.W.2d 297, 299 (Tex.1983); Rodriguez v. McFall, 658 S.W.2d 150 (Tex.1983). But this is a far from ordinary case — the relator is accused of murdering the mother of the child, and he is now asking for custody.
Furthermore, in neither Whatley nor Rodriguez was a temporary order entered, while both parties to the divorce proceeding were alive, divesting the father of custody as was accomplished in the case at bar. The entry of such an order, combined with the paramount factor of more-than-theoretical possibility of severe hazard to the child, justifies the treatment of the custody issue as a severed and independent cause of action, over which the trial court should still maintain jurisdiction. A child becomes a ward of the court when it is brought before the court for any purpose. See Ex parte Brown, 382 S.W.2d 97, 99 (Tex.1964); Benavides v. Garcia, 687 S.W.2d 397, 399 (Tex.App.—San Antonio 1985); Pollock v. Dowell, 583 S.W.2d 886, 888 (Tex.Civ.App.—Dallas, 1979).
I would deny the application for a writ of mandamus.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9644899. Public record. Not legal advice.