In the Interest of A.L.T., A Minor Child--Appeal from 45th Judicial District Court of Bexar County

No. 04-97-00698-CV
In the Interest of A.L.T., a Minor Child
From the 45th Judicial District Court, Bexar County, Texas
Trial Court No. 97-EM5-02806
Honorable James F. Clawson, Judge Presiding(1)

Opinion by: Paul W. Green, Justice

Sitting: Alma L. L pez, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: October 14, 1998

AFFIRMED

Luis Mireles, Jr., pro se, appeals from an order establishing the parent-child relationship. Mireles requests a new trial because (1) he was denied an opportunity to be heard in the trial court, and (2) the court recorder's record was lost or destroyed. We affirm.

Although Mireles was served with a paternity suit, he did not file an answer or appear for trial. The trial court's paternity order recites Mireles was "duly notified" and that a "record of the proceedings was heard by the Court Master." Mireles did not file a motion for new trial, but he timely perfected this appeal. After Mireles requested a copy of the record, the master's court recorder filed an affidavit stating the proceedings "were not recorded due to a malfunction in our recording equipment."

In his second issue on appeal, Mireles demands a new trial because no record was made of the trial court's proceedings. As authority, Mireles relies on the Family Code's requirement that a record be made in suits affecting the parent-child relationship "unless waived by the parties with the consent of the court." Tex. Fam. Code Ann. 105.003(c) (Vernon 1996); Stubbs v. Stubbs, 685 S.W.2d 643, 645 (Tex. 1985). This provision, however, is not applicable when the trial court attempted to record the proceedings but was unaware of equipment malfunctions. Because the record here was lost or destroyed, we refer to the applicable rules of appellate procedure.

Rule 34.6 entitles an appellant to a new trial

(1) if the appellant has timely requested a reporter's record;

(2) if, without the appellant's fault, a significant exhibit or a significant portion of the court reporter's notes and records has been lost or destroyed or--if the proceedings were electronically recorded--a significant portion of the recording has been lost or destroyed or is inaudible;

(3) if the lost, destroyed, or inaudible portion of the reporter's record, or the lost or destroyed exhibit, is necessary to the appeal's resolution; and

(4) if the parties cannot agree on a complete reporter's record.

Tex. R. App. P. 34.6(f) (emphasis added).

To determine whether Mireles is entitled to a new trial under Rule 34.6, we must first ask whether the lost record is necessary to his appeal. We therefore turn to his second issue, in which Mireles complains he was "denied his day in Court." More particularly, Mireles states, "On the date that this cause was called for hearing, Appellant was confined in the Bexar County Adult Detention Center." Mireles does not allege that he failed to receive notice of the hearing.

We do not need the court recorder's record to decide Mireles' complaint because we recently held that prisoners have no absolute right to appear personally at civil proceedings, including paternity suits. In re M.M., No. 04-97-00825-CV, slip op. at 3 (Tex. App.--San Antonio, Aug. 5, 1998, no pet. h.). In the absence of any bench warrant or request for a bench warrant, the trial court does not err in holding an evidentiary hearing in the prisoner's absence. Id. Such is the case here; there is no evidence that Mireles requested or received a bench warrant. Mireles, therefore, was not entitled to be present at the paternity hearing.

Accordingly, we overrule Mireles' first and second points of error, and we affirm the trial court's order.

PAUL W. GREEN,

JUSTICE

DO NOT PUBLISH

1. The Honorable Juan Antonio Chavira, a master, presided over the hearing, and the Honorable James F. Clawson approved Judge Chavira's order.

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