Reported / Citable
Background
Anticipating maternity leave, Elizabeth Anne Russell filed an unavailability letter months before her expected absence. Bexar County Local Rule 9 prevented new hearings from being scheduled during the designated period, but it did not automatically postpone existing settings. Rescheduling an existing setting required either an agreed order or a motion for continuance and a ruling from the presiding court.
After facing an apparent dismissal-for-want-of-prosecution setting, Russell sought a docket control order that would place trial after her return. Opposing counsel would not agree, and the trial court declined to sign a docket control order. Russell then sought mandamus relief.
The Court’s Holding
The Fourth Court of Appeals denied mandamus relief. Justice Velia J. Meza joined that disposition and wrote separately to explain that only a verified motion for continuance could have provided relief from the existing setting and created a record suitable for appellate review. Because Russell did not pursue that mechanism, the court lacked a basis for concluding that the trial court abused its discretion.
The concurrence explained that an unavailability letter alone cannot remove or postpone an existing setting under the applicable local rule. It also observed that the Texas Lawyer’s Creed encourages professional cooperation, including reasonable extensions, but is aspirational and imposed no enforceable duty requiring opposing counsel to agree to the requested accommodation.
Key Takeaways
- An attorney’s unavailability letter prevents new settings during the stated absence but does not automatically postpone existing settings under Bexar County Local Rule 9.
- To preserve a challenge involving an existing setting, counsel should file a timely, verified motion for continuance supported by sworn facts.
- Texas currently has no specific rule guaranteeing a parental-leave continuance, and professional expectations of courtesy do not themselves create an enforceable right to accommodation.
Why It Matters
The concurrence highlights a procedural trap for Texas litigators seeking parental leave: advance notice of unavailability may be insufficient when a hearing or trial has already been set. Without an agreed order, counsel must use the formal continuance process and develop a record that an appellate court can review.
Justice Meza also emphasized the broader policy gap between aspirational commitments to professional accommodation and enforceable protections. Although courts retain substantial discretion, Texas attorneys cannot presently rely on an automatic parental-leave continuance comparable to protections adopted in some other states.