In re Mark A. Cervantes--Appeal from 285th Judicial District Court of Bexar County

00-00278 In re Cervantes.wpd No. 04-00-00278-CV
In re Mark A. CERVANTES
Original Proceeding

Related Trial Court No. 95-CI-08368

From the 285th Judicial District Court, Bexar County, Texas

Honorable Michael Peden, Judge Presiding (1)

Opinion by: Paul W. Green, Justice

Sitting: Alma L. L pez, Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: September 27, 2000

WRIT OF MANDAMUS CONDITIONALLY GRANTED

In this original proceeding, Relator, Mark A. Cervantes, seeks to require the Presiding Court of Bexar County to set his pretrial motions for hearing and provide him with a means to appear for those settings in order to prosecute his civil action in the district court. (2) We conditionally grant the writ of mandamus.Background

Cervantes is an inmate in the Texas Department of Criminal Justice-Institutional Division. He filed a pro se civil lawsuit in the District Court of Bexar County against the attorneys who represented him in the criminal prosecution, alleging violations of the Texas Consumer Protection-Deceptive Trade Practices Act. (3) In spite of repeated requests to the District Clerk of Bexar County, the Presiding Judge of Bexar County, and the Non-Jury Setting Clerk, Cervantes has not been able to have his pretrial motions heard or ruled upon in the trial court.

Local Rule 3.9 of the Bexar County District Courts requires a party or his counsel to appear in person for a hearing on pretrial motions. If the setting for a hearing is called and no party announces ready in open court, the hearing is dropped. Cervantes acknowledges he is not unconditionally entitled to appear in person for pretrial hearings; (4) however, he complains the trial court has made no provision for either video or telephonic conferencing that would enable him to prosecute his case. As a result, he has not been able to obtain any rulings on his pretrial motions in nearly two years. Cervantes seeks an order that the trial court "establish an effective means for [relator's] attendance at hearings needed for the full preparation and prosecution of [the] cause of action," or "in the alternative, order [the trial court] to grant the appointment of counsel."

Standard of Review

Mandamus issues only to correct a clear abuse of discretion or a violation of a duty imposed by law when there is no other adequate remedy at law. See Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). A trial court is required to consider and rule upon a motion within a reasonable time. In re Ramirez, 994 S.W.2d 682, 683 (Tex. App.-San Antonio 1998, orig. proceeding). "When a motion is properly filed and pending before a trial court, the act of giving consideration to and ruling upon that motion is a ministerial act, and mandamus may issue to compel the trial judge to act." In re Ramirez, 994 S.W.2d at 683-84 (citing Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.-San Antonio 1997, orig. proceeding)). We have jurisdiction to direct the trial court to consider and rule on pending matters; however, we may not tell the trial court what ruling it should make. See id. at 684; see also Crofts v. Court of Civil Appeals, 362 S.W.2d 101, 104 (Tex.1962).

Discussion

An inmate may not be denied access to the courts merely because of his incarceration. See In re Ramirez, 994 S.W.2d at 683-84 (citing Hudson v. Palmer, 468 U.S. 517 (1984)). If the trial court finds Cervantes' presence is not necessary to the disposition of his motions, then he "should be allowed to proceed by affidavit, deposition, telephone or other effective means." See id.; In re Pedraza, 978 S.W.2d 671, 672 (Tex. App.-Corpus Christi 1998, orig. proceeding) (quoting Byrd v. Attorney General, 877 S.W.2d 566, 567 (Tex. App.-Beaumont 1994, no writ)). The trial court abuses its discretion when it fails to rule upon a proper motion in a timely manner. See In re Ramirez, 994 S.W.2d 684.

Respondent argues Cervantes has only asked for two types of relief, video teleconferencing and/or the appointment of an attorney, and both types of relief are inappropriate in this case. We disagree with Respondent's reading of the petition for writ of mandamus and the record in this case.

On or about December 4, 1994, Cervantes wrote directly to Judge Peden requesting that a procedure be instituted to allow Cervantes to have his pretrial motions heard. In the letter, Cervantes suggested a teleconference or decision without personal appearance. Because Cervantes did not use the non-jury setting procedure under Local Rules 3.3-3.10 to set his pretrial motions for hearing, it appears no action was taken on this request. On or about December 12, 1997, Cervantes sent another letter to Judge Peden, enclosing a Motion to Secure Constitutional Rights to Access to the Courts and Due Process of Law in which he requested the District Court to implement the video conferencing option available under Tex. Civ. Prac. & Rem. Code Ann. 14.008. In response, he received a letter from a staff attorney with the Bexar County District Court Administration asking Cervantes not to send any further ex parte communications directly to the judge and including a copy of the Local Rules for the setting of motions for hearing. Shortly thereafter, Cervantes received a notice from the District Clerk advising him of the procedure for setting motions on the non-jury hearing docket. Cervantes requested and received a hearing setting for the motion to secure constitutional rights but the setting was dropped when Cervantes did not appear to announce in person.

On December 12, 1998, Cervantes sent a letter to the Non-Jury Setting Clerk of the Presiding Court with a proposed order requesting a hearing date for five listed motions. The letter specifically asked the Clerk not to set a hearing date until the trial court had determined an appropriate manner for Cervantes' appearance. The proposed order also contains a request for hearing and a request for some method of appearance, including telephone conference. The order was subsequently signed by the presiding judge setting the hearings for December 28, 1999. (5) No provision was made for Cervantes' appearance and the setting was againdropped when he did not appear.

Clearly frustrated with the lack of response from the District Court, on September 24, 1999, Cervantes filed a Motion Requesting the Appointment of Counsel. In the motion, Cervantes notes he is requesting counsel only because his prior requests for alternate methods of appearance have gone unresolved. With the motion, Cervantes filed a letter waiving his right to appear in person and, in conspicuous typestyle, asking the trial court to rule without appearance due to his incarceration. In addition, Cervantes included a request for ruling without personal appearance in his proposed order setting a hearing.

Respondent states the motion for appointment of counsel was denied when "the Presiding Judge simply made an exception to the general practice and ruled on submission." We find no evidence such a ruling was ever made. Cervantes provided a copy of the letter response he received from the Bexar County Civil District Court Administration which states, "Please be advised that the Court has declined to set your Motion for the Appointment of Counsel in the above referenced matter. . . . Additionally, please be advised that you cannot waive the requirement of your own appearance at a hearing. Accordingly, the proposed Order was placed in the file unsigned at this time." Respondent has not provided a copy of an order signed by a district judge which grants or denies the motion for appointment of counsel. We find no evidence in the record on mandamus that any of Cervantes' pretrial motions have ever been ruled upon by the trial court.

We hold Cervantes adequately brought his request for an alternate method of appearance to the attention of the trial court and the Non-Jury Setting Clerk. At various times, Cervantes suggested several alternatives to personal appearance, including waiver of appearance, telephone conference, video conference, and appointment of counsel. The trial court has not addressed this concern and has not ruled on any of Cervantes' pretrial motions. This failure is a failure to perform the court's ministerial duty. See In re Ramirez, 994 S.W.2d at 683-84. We will not dictate the method the trial court should employ to accomplish the hearing and/or ruling. However, under these circumstances, we may order the trial court to perform its duty. If the trial court finds Cervantes' physical presence is not necessary to the disposition of the pretrial motions, and Cervantes has conceded it is not, then the court must employ some effective means to proceed, whether by affidavit, deposition, telephone, or otherwise. (6) See Zuniga v. Zuniga, 13 S.W.3d 798, 802 (San Antonio 1999, no pet.); Pruske v. Dempsey, 821 S.W.2d 687, 689 (Tex. App.-San Antonio 1991, no writ). We believe the trial court will be able to proceed to a ruling on Cervantes' motions by one of the means suggested in this opinion; therefore, we need not address Cervantes' alternate request for appointment of counsel at this time.

Conclusion

Because the trial court failed to consider Cervantes' pretrial motions within a reasonable time, we conditionally grant Cervantes' petition for mandamus. The trial court is directed to consider Cervantes' pending motions, determine the most effective means to

proceed in the face of Cervantes' incarceration, and proceed to a ruling. The writ will issue only if the court fails to comply with these instructions within a reasonable time.

PAUL W. GREEN,

JUSTICE

DO NOT PUBLISH

1. The Civil District Courts of Bexar County operate on a central Presiding Court system. Each civil district court judge serves as the presiding judge of the Presiding Court on a rotating basis; accordingly, we address our order to the presiding judge of the court in which relator's suit is filed, the Honorable Michael Peden of the 285th Judicial District Court of Bexar County, Texas.

2. Cervantes frames his complaint in two issues; however, the issues are so intertwined that we may address them as one.

3. Mark A. Cervantes v. Eugene M. Chavez & Michael D. Granados, Cause No. 95-CI-08368.

4. See Nichols v. Martin, 776 S.W.2d 621, 623 (Tex. App.-Tyler 1989, no writ).

5. The date appears to be a typographical mistake because it set the hearing a full year in the future. Cervantes wrote the Non-Jury Setting Clerk on December 15, 1998 and again on January 5, 1999, about the hearing date and his request for an alternate method of appearance but apparently received no response.

6. We do not suggest the Bexar County District Courts must change their Local Rule requiring personal appearance at hearings on pretrial matters. However, where, as here, the movant cannot personally appear except by the order of the trial court, some alternate means of proceeding is required in order to preserve the movant's access to the court.