In the Interest of M.S.G., a Minor Child--Appeal from 293rd Judicial District Court of Zavala County

MEMORANDUM OPINION
No. 04-06-00340-CV
IN THE INTEREST OF M.S.G., a Child
From the 293rd Judicial District Court, Zavala County, Texas
Trial Court No. 05-03-11042
Honorable Kelley T. Bartell, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

 

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

 

Delivered and Filed: October 10, 2007

 

REVERSED AND REMANDED

Miguel Garcia appeals a default judgment establishing his paternity of M.S.G. and ordering him to pay child support. Garcia asserts that he is entitled to a new trial because: (1) portions of the record have been lost or destroyed; and (2) the trial court abused its discretion in denying Garcia the right to present a defense. We reverse the trial court's judgment and remand the cause to the trial court for further proceedings.

In his first issue, Garcia complains that portions of the record have been lost or destroyed; however, those documents that were filed with the trial court about which Garcia complains are contained in a supplemental clerk's record. Accordingly, Garcia's first issue is overruled.

In his second issue, Garcia complains that the trial court abused its discretion in denying him the right to appear "in person or by written answer, deposition, telephone or otherwise." "[L]itigants cannot be denied access to the courts simply because they are inmates." In re Z.L.T., 124 S.W.3d 163, 166 (Tex. 2003). If an inmate is not allowed to participate in a proceeding in person, a trial court should afford the inmate the opportunity to proceed by affidavit, deposition, telephone or other means. Karnei v. Spencer, No. 04-06-00395-CV, 2006 WL 3497322, at *1 (Tex. App.--San Antonio Dec. 6, 2006, no pet.); Lann v. La Salle County, No. 04-02-00005-CV, 2003 WL 141040, at *1 (Tex. App.--San Antonio Jan. 22, 2003, no pet.). We review a trial court's failure to act on a litigant's request to participate in a proceeding in person or through some other means for an abuse of discretion. Karnei, 2006 WL 3497322, at *1.

In addition to filing a "motion for writ of habeas corpus ad testificandum" requesting to appear in person, Garcia filed numerous documents with the trial court requesting that the trial court alternatively consider his "affidavit and declaration of inability" as evidence. The record even contains a separate motion in which Garcia requests that his affidavit be submitted as evidence and read into the record at any hearing or proceeding.

The Office of the Attorney General of Texas argues that we should presume that the trial court took judicial notice of Garcia's affidavit; however, even the most generous reading of the reporter's record of the hearing would not allow this court to engage in such a presumption. Although the Texas Supreme Court has held that a trial court impliedly denies an inmate's request to be personally present at trial by proceeding to trial without issuing a bench warrant, In re Z.L.T., 124 S.W.3d at 165, the Texas Supreme Court has not instructed us to impliedly presume that the trial court also ruled on a request to proceed by alternative means. "[A]fter determining that a bench warrant was unnecessary, the court should have permitted [Garcia] to proceed by some other viable means, such as [by written affidavit as Garcia] had expressly requested." Lann, 2003 WL 141040, at *1. "By not acting on [Garcia's] motion to [introduce his affidavit into evidence], the trial court effectively closed its door to inmate [Garcia] and, in doing so, abused its discretion." Karnei, 2006 WL 3497322, at *1. We therefore reverse the trial court's judgment and remand the cause for further proceedings. (1)

Alma L. L pez, Chief Justice

 

1. Although the Office of the Attorney General of Texas alternatively prays that we remand only the issue of the amount of child support, the trial court's judgment contains other monetary judgments and orders, including a child support arrearage judgment, an order for cash medical support, a judgment for testing costs, and an award of court costs, that the trial court will need to reconsider on remand.