In Re Marisol Garza v. the State of Texas

NUMBER 13-25-00663-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN RE MARISOL GARZA

ON PETITION FOR WRIT OF MANDAMUS

MEMORANDUM OPINION

Before Justices Silva, Cron, and Fonseca
Memorandum Opinion by Justice Cron

By petition for writ of mandamus, relator Marisol Garza contends that the trial

court 1 abused its discretion by refusing to dismiss the underlying contract dispute for want

of prosecution. The lawsuit has been pending for more than eleven years and Tesoro

Corporation d/b/a AAA Electrical Signs (Tesoro) has failed to provide good cause for the

delay in prosecuting its lawsuit. Accordingly, we conditionally grant the petition for writ of

1 This original proceeding arises from trial court cause number C-7020-14-F in the 332nd District

Court of Hidalgo County, Texas, and the respondent is the Honorable Juan R. Alvarez. See TEX. R. APP.
P. 52.2.
mandamus.

I. BACKGROUND

On August 21, 2014, Tesoro filed suit against Garza and Beyamar Home Health

(Beyamar). Tesoro alleged that it signed a contract with Garza and Beyamar pursuant to

which it would install a “40’ x 25’ double face custom electrical monument sign with a full

color video board” for an initial payment of $53,500 and a monthly rental fee of $4,270 for

a term of sixty months. According to Tesoro, Garza and Beyamar breached the contract

by failing to make the required payments under the contract.

Tesoro failed to secure service of process for its lawsuit. On July 8, 2015, the trial

court issued notice that the case was set to be heard on the dismissal docket on August

4, 2015. On August 3, 2015, immediately before the hearing, Tesoro filed a motion

requesting substituted service. The trial court granted Tesoro’s motion for substituted

service and retained the case on its docket. On October 21, 2015, Garza and Beyamar

filed a general denial. Thereafter, on November 15, 2015, Bey LLC2 (Bey) filed a petition

in intervention against Tesoro, and on December 17, 2015, Tesoro filed a nonsuit of its

claims against Beyamar.

On July 31, 2017, the trial court issued notice to the parties that the case was again

set on the dismissal docket for August 25, 2017. For a second time, the trial court did not

dismiss the case. On April 23, 2024, Garza filed a motion to dismiss for want of

prosecution. Garza alleged that the case should be dismissed for want of prosecution

under Texas Rule of Civil Procedure 165a and the trial court’s inherent power. See TEX.

2 Bey LLC appears in the pleadings and record as “Bey LLC” and “Bey, LLC.”

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R. CIV. P. 165a. Garza argued that the case had been pending for almost a decade, Tesoro

had minimally prosecuted the case, and the case timeline was “peppered with extensive

intervals of inactivity.” Garza provided the following timeline 3 for the case:

8/21/2014 Plaintiff’s Original Petition

NEARLY TWELVE MONTHS OF INACTIVITY

8/3/2015 Plaintiff’s Motion for Substitute Service (showing the last
attempted service being November 7, 2014—nearly nine
months before Plaintiff filed the motion for substitute
service).

TWENTY-SEVEN MONTHS OF INACTIVITY

11/6/2017 Plaintiff’s Motion for Summary Judgment

NINE MONTHS OF INACTIVITY

8/23/2018 Plaintiff’s Motion to Compel

9/4/2018 Plaintiff’s Motion to Extend Discovery Deadline

11/2/2018 Plaintiff’s Motion for Contempt against Bey, LLC

2/21/2019 Plaintiff’s Notice of Intent to Take Oral Deposition of Marisol
Garza

4/5/2019 Plaintiff’s Notice of Intent to Take Oral Deposition of Marisol
Garza

4/12/2019 Plaintiff’s Amended Notice of Intent to Take Oral Deposition of
Marisol Garza

SIX MONTHS OF INACTIVITY

10/29/2019 Plaintiff’s Designation of Experts

12/27/2019 Plaintiff’s Motion to Extend Discovery Deadline

3 We have made minor formatting changes to Garza’s timeline.

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12/27/2019 Plaintiff’s Second Amended Notice to Take Oral Deposition of
Marisol Garza

1/17/2020 Plaintiff’s Motion to Compel

2/3/2020 Plaintiff’s Third Amended Notice to Take Oral Deposition of
Marisol Garza

[FORTY]-SIX MONTHS OF INACTIVITY

4/23/2024 Motion to Dismiss for Want of Prosecution

Garza’s motion to dismiss was originally set to be heard on April 29, 2024, but the parties

agreed to pass the hearing to mediate the case. The mediation was not successful.

On September 30, 2025, the trial court issued notice that the case would be heard

on the dismissal docket on October 23, 2025. Garza again requested a hearing on her

motion to dismiss, and the trial court held that hearing on December 11, 2025. That same

day, the trial court signed an order denying Garza’s motion to dismiss for want of

prosecution.

On December 12, 2025, Garza filed this petition for writ of mandamus. The Court

requested the real parties in interest to file responses to the petition for writ of mandamus.

Bey filed a response requesting that this Court issue mandamus relief. Bey specifically

requested that we order the trial court to grant the motion to dismiss and “dismiss all

claims brought by any party in the case with prejudice.” Tesoro filed a response alleging

that: (1) Garza’s “unclean hands bar her from obtaining dismissal when she contributed

equally to the delay in this case”; (2) “the delay was attributable to both parties equally”

because Garza “sought as many continuances” as Tesoro, and “most continuances were

agreed motions supported by both sides”; and (3) the COVID-19 pandemic explains an

approximately eighteen-month delay in the case from March 2020 through September

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2021. Garza filed a reply to Tesoro’s response in support of her request for mandamus

relief.

II. MANDAMUS

Mandamus is an extraordinary and discretionary remedy. See In re Allstate Indem.

Co., 622 S.W.3d 870, 883 (Tex. 2021) (orig. proceeding); In re Garza, 544 S.W.3d 836,

840 (Tex. 2018) (orig. proceeding) (per curiam); In re Prudential Ins. Co. of Am., 148

S.W.3d 124, 138 (Tex. 2004) (orig. proceeding). The relator must show that (1) the trial

court abused its discretion, and (2) the relator lacks an adequate remedy on appeal. In re

USAA Gen. Indem. Co., 624 S.W.3d 782, 787 (Tex. 2021) (orig. proceeding); In re

Prudential Ins. Co. of Am., 148 S.W.3d at 135–36; Walker v. Packer, 827 S.W.2d 833,

839–40 (Tex. 1992) (orig. proceeding).

The trial court abuses its discretion if it reaches a decision that is “so arbitrary and

unreasonable as to amount to a clear and prejudicial error of law.” In re K & L Auto

Crushers, LLC, 627 S.W.3d 239, 247 (Tex. 2021) (orig. proceeding) (quoting Walker, 827

S.W.2d at 839) (cleaned up); see In re State Farm Lloyds, 520 S.W.3d 595, 604 (Tex.

2017) (orig. proceeding). The trial court has no discretion in determining what the law is

or in applying the law to the facts. In re Ill. Nat’l Ins., 685 S.W.3d 826, 835 (Tex. 2024)

(orig. proceeding); In re Sherwin-Williams Co., 668 S.W.3d 368, 370 (Tex. 2023) (orig.

proceeding) (per curiam). When determining if the trial court clearly abused its discretion,

an appellate court may not substitute its judgment for the trial court’s determination of

factual or other matters committed to the trial court’s discretion, even if the appellate court

would have decided the issue differently. In re State Farm Lloyds, 520 S.W.3d at 604;

Walker, S.W.2d at 839.

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In accordance with these principles, mandamus relief is appropriate when a trial

court abuses its discretion in failing to dismiss a case for want of prosecution. In re

Conner, 458 S.W.3d 532, 534 (Tex. 2015) (orig. proceeding) (per curiam); In re Bordelon,

578 S.W.3d 197, 200 (Tex. App.—Tyler 2019, orig. proceeding); In re Crawford, 560

S.W.3d 357, 363 (Tex. App.—Texarkana 2018, orig. proceeding). That is because an

“erroneous refusal to dismiss a case for want of prosecution cannot effectively be

challenged on appeal.” In re Conner, 458 S.W.3d at 535. In short, forcing a litigant to wait

for an appellate remedy would allow “the very delay dismissal is intended to prevent.” Id.

And, in such circumstances, a trial of the case would be “hampered by stale evidence

and lost or clouded memories.” Id.

III. DISMISSAL FOR WANT OF PROSECUTION

The plaintiff has a duty to prosecute its lawsuit to a conclusion with reasonable

diligence, and if that duty is not fulfilled, the trial court may dismiss the case for want of

prosecution. In re Conner, 458 S.W.3d at 534; Callahan v. Staples, 161 S.W.2d 489, 491

(Tex. 1942); In re Bordelon, 578 S.W.3d at 201. “[A] delay of an unreasonable

duration . . . if not sufficiently explained, will raise a conclusive presumption of

abandonment of the plaintiff’s suit.” In re Conner, 458 S.W.3d at 534 (quoting Callahan,

161 S.W.2d at 491); see In re Bordelon, 578 S.W.3d at 201. This conclusive presumption

justifies the dismissal of a suit under either the trial court’s inherent authority or pursuant

to Rule 165a of the Texas Rules of Civil Procedure. In re Conner, 458 S.W.3d at 534;

Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999).

As relevant here, Rule 165a provides that a case may be dismissed if it is “not

disposed of within the time standards promulgated by the Supreme Court under its

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Administrative Rules.” TEX. R. CIV. P. 165a(2). The Texas Rules of Judicial Administration

require district and statutory county courts to ensure, “so far as reasonably possible,” that

civil cases in which a jury has been demanded, other than those arising under the Family

Code, are brought to trial or final disposition within eighteen months of the appearance

date. TEX. R. JUD. ADMIN. 6.1(a)(1). Trial courts possess “considerable discretion” when

managing their dockets; however, such discretion is not absolute. In re Conner, 458

S.W.3d at 534; see In re Crawford, 560 S.W.3d at 364. A “trial court abuses its discretion

by refusing to grant a motion to dismiss for want of prosecution in the face of unmitigated

and unexplained delay.” In re Conner, 458 S.W.3d at 534.

IV. ANALYSIS

Tesoro filed its original petition on August 2, 2014; thus, its lawsuit has been

pending for eleven years and five months. This period greatly exceeds the eighteen-

month time frame for disposition of the case as set forth in the administrative rules. See

TEX. R. JUD. ADMIN. 6.1(a)(1). Because this delay gives rise to a presumption of

abandonment, we must determine whether Tesoro sufficiently explained the delay. See

In re Conner, 458 S.W.3d at 534. We examine whether Tesoro has provided “good cause”

for the delay, or stated otherwise, we look for a “reasonable explanation.” Id. at 535.

As noted previously, Tesoro offers various explanations for the delay. Tesoro

asserts that the alleged period of delay “encompassed the COVID-19 pandemic” which

hindered the litigation of this case. Tesoro argues that the COVID-19 pandemic

suspended civil jury trials for eighteen months, from March 2020 through September

2021, thereby “explaining a substantial portion of the delay.” In addressing the effects of

the COVID-19 pandemic in cases involving want of prosecution, the Fourteenth Court of

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Appeals recently held that “a specific excuse can be a reasonable explanation for delay,

like the cancellation of a trial setting because of the pandemic or missing a single notice

sent to a law firm’s office while the attorneys and staff were quarantining because of a

[COVID]-19 exposure”; however, “citing generally the difficulties of working during the

early days of the pandemic is not a reasonable explanation for months-long delay.”

Folsom v. Folsom, No. 01-22-00531-CV, 2024 WL 187443, at *6 (Tex. App.—Houston

[1st Dist.] Jan. 18, 2024, no pet.) (mem. op.). In any event, this rationale could account

for, at most, eighteen months of the delay.

Tesoro’s remaining explanations for the delay are founded principally on its

contention that Garza’s “unclean hands” bar mandamus relief. The equitable doctrine of

unclean hands may defeat the right to mandamus relief. Axelson, Inc. v. McIlhany, 798

S.W.2d 550, 552 n.2 (Tex. 1990) (orig. proceeding); In re Trevino, No. 13-24-00362-CV,

2024 WL 3533415, at *4 (Tex. App.—Corpus Christi–Edinburg July 24, 2024, orig.

proceeding) (mem. op.); In re D.D., 661 S.W.3d 608, 618 (Tex. App.—El Paso 2023, orig.

proceeding); In re Jim Walter Homes, Inc., 207 S.W.3d 888, 899 (Tex. App.—Houston

[14th Dist.] 2006, orig. proceeding). “The defense of unclean hands derives from the

equitable principle that the party seeking equity must come into court with clean hands.”

Cantu v. Guerra & Moore, LLP, 549 S.W.3d 664, 671 (Tex. App.—San Antonio 2017, pet.

denied); see In re State ex rel. Newell, 712 S.W.3d 963, 975 (Tex. App.—Austin 2025,

orig. proceeding). “The doctrine is applied to one whose own conduct in connection with

the same matter or transaction has been unconscientious, unjust, or marked by a want of

good faith, or one who has violated the principles of equity and righteous dealing.”

Thomas v. McNair, 882 S.W.2d 870, 880 (Tex. App.—Corpus Christi–Edinburg 1994, no

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writ); see In re State, 712 S.W.3d at 975; Wood v. Wiggins, 650 S.W.3d 533, 556 (Tex.

App.—Houston [1st Dist.] 2021, pet. denied). Whether to apply the doctrine of unclean

hands is committed to the court’s discretion. Wood, 650 S.W.3d at 556; Reich & Binstock,

LLP v. Scates, 455 S.W.3d 178, 184 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).

“The clean hands maxim should not be applied when the defendants have not been

seriously harmed and the wrong complained of can be corrected without applying the

doctrine.” In re Jim Walter Homes, Inc., 207 S.W.3d at 899; see Wood, 650 S.W.3d at

556; Cantu, 549 S.W.3d at 671.

First, Tesoro alleges that Garza “evaded service for approximately nine months

after this case was filed.” The record indicates that Tesoro filed suit on August 21, 2014,

and citation was issued on September 9, 2014. On August 3, 2015, Tesoro filed a motion

for substitute service, which the trial court thereafter granted. Garza and Beyamar filed

their answer to the lawsuit on October 21, 2015. The process server attempted to serve

Garza on October 20, 2014, at Beyamar; however, the process server explained that he

did not serve Garza because the “entire two-story building is empty and vacant and out

of business.” The process server averred that he was unable to secure forwarding

information for Garza from the United States Postal Service and was unable to locate

information regarding her from the voter registration offices for Hidalgo County. Contrary

to Tesoro’s contentions, we do not perceive that the foregoing supports an inference that

Garza evaded service or otherwise acted in bad faith. In any event, Tesoro’s failure to

secure service on Garza accounted for, at most, less than one year of the delay.

Second, Tesoro alleged that Garza complicated the litigation, thereby creating the

delay in resolving the lawsuit. According to Tesoro, Garza caused her wholly owned

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company, Bey, to file a petition in intervention which “significantly complicated the

litigation by adding a new party, new claims, and inherent scheduling conflicts arising from

the dual representation.” Tesoro also alleges that Garza hired new counsel during the

litigation and amended her pleadings. Tesoro does not support its argument with

evidence regarding how Garza’s actions contributed to the alleged delay, or the length of

time attributed to these issues, and we view Garza’s litigation actions as described herein

as routine in nature.

Third, Tesoro argues that the parties’ joint attempts to mediate the case resulted

in “several additional months of delay,” and Garza “cannot complain of delay that she

herself agreed to pursue.” Tesoro notes that Garza agreed to pass the hearing on her

motion to dismiss the lawsuit for lack of prosecution to pursue mediation. However,

settlement activity does not excuse “a want of diligent prosecution.” F.D.I.C. v. Kendrick,

897 S.W.2d 476, 481 (Tex. App.—Amarillo 1995, no writ); see In re Allstate Tex. Lloyd’s,

No. 13-24-00395-CV, 2024 WL 3943455, at *5 (Tex. App.—Corpus Christi–Edinburg Aug.

26, 2024, orig. proceeding) (mem. op.) (stating that settlement activity does not excuse a

lack of diligent prosecution); In re Estate of Hormuth, No. 04-16-00269-CV, 2017 WL

1683716, at *3 (Tex. App.—San Antonio May 3, 2017, pet. denied) (mem. op.) (same).

Further, per Tesoro’s own pleading, any such delay would only amount to several months

in an eleven-year span.

Finally, Tesoro contends that Garza sought or otherwise agreed to multiple trial

continuances, thus, she “shared responsibility” for the delay in the case. The record in

this case reveals an overabundance of trial continuances: (1) “Joint Motion for

Continuance” filed on September 21, 2018 based on the need for further discovery;

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(2) “Agreed Motion for Continuance” filed on February 22, 2019 based on the need for

further discovery; (3) “Agreed Motion for Continuance” filed on January 10, 2020 based

on the need for further discovery; (4) “Plaintiff’s Motion to Reset Trial Date” filed on April

22, 2021 based on the COVID-19 pandemic; (5) “Defendants’ and Intervenor’s

Unopposed Motion for Continuance” filed on April 26, 2022 based on counsel’s

unavailability for trial; (6) “Agreed Motion for Continuance” filed on February 22, 2023

based on a wedding for one of Tesoro’s principals; (7) “Agreed Motion for Continuance”

filed on September 15, 2023 based on a family event for one of Tesoro’s counsel; and

(8) “Agreed Motion for Continuance” filed on April 26, 2024 based on the parties’

scheduled mediation of the case.

We agree that the number of continuances in this case is troubling. However,

Tesoro’s contention fails to recognize that “it is the plaintiff who has the duty to prosecute

its lawsuit to a conclusion with ‘reasonable diligence,’ not the defendant.” In re Bordelon,

578 S.W.3d at 202 (cleaned up) (quoting Tex. Wrecker Serv. v. Resendez, No. 13-16-

00515-CV, 2017 WL 711642, at *7 (Tex. App.—Corpus Christi–Edinburg Feb. 23, 2017,

orig. proceeding) (mem. op.)). Stated otherwise, Garza’s participation in the case, or lack

thereof, “has no bearing” on whether Tesoro diligently prosecuted its case. In re Bordelon,

578 S.W.3d at 202; see also F.D.I.C., 897 S.W.2d at 481 (stating that “the passive attitude

of opposing parties” does not excuse the failure to diligently prosecute a case).

Considering the foregoing arguments, we disagree with Tesoro’s contention that

Garza has unclean hands that bar mandamus relief. In short, the record does not indicate

that Garza’s conduct was unconscientious, unjust, or marked by a want of good faith. See

In re D.D., 661 S.W.3d at 618; Wood, 650 S.W.3d at 556; Thomas, 882 S.W.2d at 880.

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We conclude that Tesoro has failed to meet its burden to explain the delay in prosecuting

its case. Overall, even if we take as true Tesoro’s contentions regarding delay, Tesoro’s

explanations do not encompass the entire period of delay. In this regard, Tesoro argues

that the case was delayed for approximately one year from 2014 to 2015 due to the

problems it encountered in obtaining service; for eighteen months from March 2020 to

September 2021 due to the COVID-19 pandemic; and for six years from September 21,

2018, until April 26, 2024, due to motions for continuance and mediation efforts. Tesoro

offers no explanation for the delay in prosecuting the case for the five-year period from

2015 until 2020.

Examining the case in its entirety, we note that most actions taken in the case by

Tesoro occurred after, and presumably in response to, dismissal proceedings instituted

by the trial court or the motion to dismiss filed by Garza. “Actions taken after a motion to

dismiss is filed, including the obtaining of a trial setting or filing of a jury demand, do not

enter into the analysis of whether diligence has been exercised.” In re Bordelon, 578

S.W.3d at 202; see Cotten v. Briley, 517 S.W.3d 177, 184 (Tex. App.—Texarkana 2017,

no pet.). Further, although the record indicates that Tesoro occasionally engaged in brief

periods of activity on the case, the record also indicates that there are several extensive

periods of inaction. Sporadic diligence is not sufficient to explain an extended delay in

prosecuting a case. See In re Bordelon, 578 S.W.3d at 201; Nichols v. Sedalco Constr.

Servs., 228 S.W.3d 341, 343 (Tex. App.—Waco 2007, pet. denied).

Tesoro’s proffered reasons for the delay do not offer a reasonable explanation or

otherwise establish good cause for the eleven-year delay in resolving the lawsuit.

Accordingly, we conclude that it failed to prosecute its lawsuit against Garza to a

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conclusion with reasonable diligence, and the trial court abused its discretion by refusing

to grant Garza’s motion to dismiss for want of prosecution. See In re Conner, 458 S.W.3d

at 534. We similarly conclude that Garza lacks an adequate remedy by appeal. See id.

The lease at issue in this lawsuit was signed on October 10, 2007, and litigation ensued

in 2014. This excessive delay in resolving the case necessarily results in “stale” evidence

and witnesses’ faded recollections. To require Garza to proceed to trial almost twenty

years after the contract was entered and eleven years after litigation ensued, and then to

be forced to go through the effort and expense of a direct appeal amounts to an untimely,

inadequate, and unfair remedy. See id. We sustain the sole issue presented in this original

proceeding.

V. CONCLUSION

The Court, having examined and fully considered the petition for writ of mandamus,

the responses filed by Bey and Tesoro, Garza’s reply, and the applicable law, is of the

opinion that Garza has met her burden to obtain mandamus relief. Accordingly, we

conditionally grant the petition for writ of mandamus, and we direct the trial court to vacate

its December 11, 2025 order denying Garza’s motion to dismiss and to enter an order

granting that motion. We trust that the trial court will promptly comply, and our writ will

issue only if it fails to do so.

JENNY CRON
Justice

Delivered and filed on the
29th day of January, 2026.

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