In the Interest of Zebranae L. Thompson, Jaray Ke Henry-Thompson, Zekeishja N. Thompson, Minor Children--Appeal from 225th Judicial District Court of Bexar County

CONCURRING OPINION
No. 04-00-00763-CV
In the Interest of Z.L.T., J.K.H.T., and Z.N.T., Minor Children
From the 225th Judicial District Court, Bexar County, Texas
Trial Court No. 99-EM5-03756
Honorable John J. Specia, Jr., Judge Presiding (1)

Opinion by: Phil Hardberger, Chief Justice

Concurring opinion by: Sarah B. Duncan, Justice, joined by Justice Paul W. Green

and Justice Karen Angelini

Sitting: Phil Hardberger, Chief, Justice

Alma L. L pez, Justice

Catherine Stone, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: April 17, 2002

Following previous decisions of this court and others, the majority reverses the judgment because the trial court "abused its discretion by failing to directly address the appellant's request to appear in person and to strike a balance that is fundamentally fair." See, e.g., Zuniga v. Zuniga, 13 S.W.3d 798, 801 (Tex. App.-San Antonio 1999, no pet.); Pruske v. Dempsey, 821 S.W.2d 687, 689 (Tex. App.-San Antonio 1991, no writ ). However, in reaching its decision, the majority does not detail the extent to which the appellant's motion addresses the relevant factors. (2) In fact, the motion states no basis for why the appellant's appearance at trial is desirable or necessary; nor does it ask for permission to appear by an alternate means. The same was true of Zuniga's application. Under these circumstances, other courts of appeals would reject the appellant's claim of reversible error. See Pedraza v. Crossroads Sec. Sys., 960 S.W.2d 339, 342 (Tex. App.-Corpus Christi 1997, no pet.) ("His application for a writ of habeas corpus ad testificandum contains no basis or argument for granting it."); Armstrong v. Randle, 881 S.W.2d 53, 57-58 (Tex. App.-Texarkana 1994, writ denied) ("He fails to show, however, the substance of any testimony he would have given, or how such testimony would have affected the jury's verdict. He does not show why such testimony could not have been given by deposition, telephone, affidavit, or otherwise."); Brewer v. Taylor, 737 S.W.2d 421, 423-24 (Tex. App.-Dallas 1987, no writ) ("His application for writ of attachment contains no basis or argument for granting it.").

In light of these decisions from other courts of appeals, it is not surprising that the Attorney General asks that we reconsider our prior decisions and hold that the trial court's duty to weigh the relevant factors "will not be triggered unless the inmate has provided sufficient information in his bench warrant request." (3) The majority refuses to do so for two reasons: (1) "[r]equiring the inmate to provide information regarding each of the factors the trial court may consider would not appear to be of much assistance to the trial court in undertaking the balancing"; and (2) "each of the Attorney General's arguments appears to ignore the reason the trial court is required to undertake a balancing" - "an inmate's fundamental constitutional right to court access." Neither reason, in my view, supports the continued adherence to our previous decisions and the concomitant burden imposed on litigants, trial courts, and our judicial system in general.

As a general rule, "one who first requests the intervention of a court in his behalf-who asserts a right or a duty and demands a remedy-is properly required to carry the burden of proving his right to the remedy ...." Pace Corp. v. Jackson, 155 Tex. 179, 284 S.W.2d 340, 350 (1955). Thus, our procedural rules require a movant to state in his motion the relief requested and the particular grounds supporting his request. See Tex. R. Civ. P. 21; Tex. R. App. P. 10.1(a); Tex. R. App. P. 33.1(a)(1)(A). These rules are based on nothing more - and nothing less - than commonsense. For a court to evaluate a movant's request, the court must be informed about what relief the movant seeks and why, in the movant's view, the requested relief is appropriate. This commonsense rule applies with as much or more force in the context of an incarcerated litigant's application for a bench warrant. To perform the balancing required by our prior decisions, the court must have knowledge of several facts. For instance, at the time of trial, where will the incarcerated litigant be physically located? The State of Texas covers 266,807 square miles; and, within the Texas Department of Criminal Justice, there are over 100 facilities, stretching from El Paso to Texarkana, from Edinburg to Dalhart. (4) For what criminal offense was the litigant incarcerated and what has been his record for violent behavior while in prison? When does the litigant believe he will be released? Most importantly, what material, relevant, and non-cumulative evidence does the incarcerated litigant intend to present and why, in the litigant's view, can this evidence not be presented effectively by deposition, telephone, or some other means? Who better to provide this information to the court than the incarcerated litigant?

I do not doubt that the decision on an application for a bench warrant - as well as the balancing required on several of the factors outlined in our prior decisions - requires a court to make a series of subjective determinations. But a subjective determination cannot be made without basic factual information. And it is the incarcerated litigant who can and, under our rules of procedure, should provide the starting point for the court's investigation. This information can then be verified and considered by the court.

The majority states that the sua sponte investigation required by our prior decisions is necessary to "to protect an inmate's fundamental constitutional right to court access." In so doing, the majority implies a far broader constitutional right than has actually been recognized. As the Fifth Circuit has noted, "'[w]hile the precise contours of a prisoner's right of access to the courts remain somewhat obscure, the Supreme Court has not extended this right to encompass more than the ability of an inmate to prepare and transmit a necessary legal document to a court.'" Norton v. Dimazana, 122 F.3d 286, 290 (5th Cir. 1997) (quoting Brewer v. Wilkinson, 3 F.3d 816, 821 (5th Cir. 1993), cert. denied, 510 U.S. 1123 (1994)); see also Wolff v. McDonnell, 418 U.S. 539, 576 (1974).Certainly this important - but nonetheless narrowly-defined - constitutional right is not impacted by requiring an incarcerated litigant to include in his application for a bench warrant a statement of the grounds for the relief he requests.

In all other contexts, this court holds "[a] pro se litigant ... to the same standards as licensed attorneys" and requires him to "comply with applicable laws and rules of procedure." Shull v. United Parcel Serv., 4 S.W.3d 46, 52-53 (Tex. App.-San Antonio 1999, pet. denied), cert. denied, 531 U.S. 835 (2000), quoting Holt v. F.F. Enters., 990 S.W.2d 756, 759 (Tex. App.-Amarillo 1998, pet. denied). I would do the same in this context and hold (1) an incarcerated litigant who applies for a bench warrant must comply with Texas Rule of Civil Procedure 21 by including in his application a statement of the relief he seeks and the grounds supporting his request, and (2) if a trial court proceeds to trial without expressly ruling on an application for a bench warrant, it is implicitly denied. Because these holdings would effect a change in the law, however, I would apply them prospectively only. Accordingly, I concur in the majority's judgment reversing the trial court's judgment and remanding the cause. See Tex. R. App. P. 43.3(b).

Sarah B. Duncan, Justice

Publish

1. Master James A. Rausch presided over the hearing and entered the order establishing the parent-child relationship.

2. See also In re Taylor, 39 S.W.3d 406, 412 (Tex. App.-Waco 2001, orig. proceeding); Dodd v. Dodd, 17 S.W.3d 714, 716-18 (Tex. App.-Houston [1st Dist.] 2000, no pet.); Byrd v. Attorney General, 877 S.W.2d 566, 569 (Tex. App.-Beaumont 1994, no writ).

3. The Attorney General also asks that we apply Texas Rule of Appellate Procedure 33.1(a)(2)(A) and hold that by proceeding to trial without issuing a bench warrant the trial court implicitly denied the application. Cf. Williams v. Bank One, Texas, N.A., 15 S.W.3d 110, 114 (Tex. App.-Waco 1999, no pet.) (holding that by proceeding to trial the trial court implicitly denied a motion for continuance). I would do so.

4. See http://www.tdcj.state.tx.us/stat/publications/fy2001statsum.pdf.