Opinion
No. 04-03-00897-CV
Delivered and Filed: February 9, 2005.
Appeal from the 38th Judicial District Court, Uvalde County, Texas, Trial Court No. 03-03-23,479-CV, Honorable Mickey R. Pennington, Judge Presiding.
Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Karen ANGELINI, Justice.
MEMORANDUM OPINION
Ruben Ruiz appeals the final judgment in a divorce action. On appeal, Mr. Ruiz argues that the trial court abused its discretion when it denied both his motion for appointment of an attorney and his motion for a bench warrant and/or continuance. We affirm the judgment of the trial court.
Factual and Procedural Background
Lourdes Ruiz filed for divorce from Ruben Ruiz in March of 2003. Mr. Ruiz, who had at that time been imprisoned for approximately 13 years for murder, filed a waiver of citation in which he entered his appearance for all purposes and waived the issuance and service of process. Pursuant to Texas Family Code Chapter 231, the Office of the Attorney General intervened in the divorce action to assert its assigned right to the collection of child support.
Mr. Ruiz filed a motion for appointment of counsel and a motion for a bench warrant and/or continuance. At the hearing on the divorce action, the trial court denied Mr. Ruiz's motions and then signed the divorce decree in Mr. Ruiz's absence.
Failure to Appoint Counsel
Mr. Ruiz argues that the trial court erred by not appointing counsel to represent him at trial. Mr. Ruiz cites Texas Government Code section 24.016, which states that a district judge may appoint counsel to represent a party who makes an affidavit that he is too poor to employ counsel. Tex. Gov. Code Ann. § 24.016 (Vernon 1996). A trial court does not abuse its discretion in refusing to appoint counsel to represent an indigent civil litigant unless the party requesting appointment demonstrates why the public and private interests at stake are so exceptional that the administration of justice would best be served by appointing an attorney to represent him. Hines v. Massey, 79 S.W.3d 269, 272 (Tex.App.-Beaumont 2002, no pet.); see also Hall v. Treon, 39 S.W.3d 722, 724 (Tex.App.-Beaumont 2001, no pet.); Coleman v. Lynaugh, 934 S.W.2d 837, 839 (Tex.App.-Houston [1st Dist.] 1996, no writ).
While Mr. Ruiz did provide the appropriate affidavit indicating that he is too poor to employ counsel, he did not demonstrate any circumstances that characterize this case as exceptional. Therefore, the trial court did not abuse its discretion in declining to appoint counsel for Mr. Ruiz.
Failure to Grant Continuance
Mr. Ruiz argues that the trial court erred in refusing to grant a continuance so that he could conduct pre-trial discovery. Whether the trial court grants or denies a motion for continuance lies within its sound discretion. Gen. Motors Corp. v. Gayle, 951 S.W.2d 469, 476 (Tex. 1997) (orig. proceeding); Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986). Accordingly, the trial court's ruling will not be reversed unless the record shows a clear abuse of discretion. 3V, Inc. v. JTS Enters., Inc., 40 S.W.3d 533, 540 (Tex.App.-Houston [14th Dist.] 2000, no pet.); Dallas Indep. Sch. Dist. v. Finlan, 27 S.W.3d 220, 235 (Tex.App.-Dallas, pet. denied).
A party who requests additional time for discovery must comply with the requirements of Rule 252 of the Texas Rules of Civil Procedure. Rule 252 requires a party, by affidavit, to: (1) state that the sought-after testimony is material; (2) show the materiality of the testimony; (3) show that he has used due diligence to procure such testimony, stating such diligence and the cause of the failure, if known; (4) state that the testimony cannot be procured from any other source; (5) state the name and residence of the witness and what he expects to prove by him, if the continuance is sought because of an absent witness; and (6) state that the continuance is not for delay, but so that justice may be done. Tex. R. Civ. P. 252. A party's first motion for continuance does not need to show that the absent testimony cannot be procured from any other source. Id.
Mr. Ruiz contends in his reply brief that had the continuance been granted, "the use of admissions and interrogatories could have served as a means for Appellant to be heard and have his rights protected." The motion, however, failed to specify the information or testimony Mr. Ruiz sought or why it was material. Nor did Mr. Ruiz show he used diligence to procure the information or testimony. Mr. Ruiz's motion for continuance failed to comply with Rule 252. Therefore, the trial court did not abuse its discretion when it denied the motion. Villegas, 711 S.W.2d at 626.
Failure to Grant Bench Warrant or Otherwise Provide For Appearance
Mr. Ruiz also argues that the trial court erred in denying his request for a bench warrant or providing an alternate means for him to appear. Mr. Ruiz filed a "Motion for Bench Warrant and/or Motion for Continuance." Citing case law, Mr. Ruiz requested that the trial court allow him "to attend the trial in this cause, . . . either in person or via some other means. . . ." On July 2, 2003, the trial court denied Mr. Ruiz's motion, signing an order to that effect on July 25, 2003.
We review the trial court's denial of a request for a bench warrant under an abuse of discretion standard. Id. at 165. A trial court abuses its discretion if it acts arbitrarily and unreasonably or without reference to guiding principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985). When we review matters left to the discretion of the trial court, we do not substitute our judgment for that of the trial court. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).
An inmate does not automatically lose the right of access to the courts by virtue of being incarcerated. Hudson v. Palmer, 468 U.S. 517, 523 (1984). Nor does an inmate have an automatic right to personally appear as a defendant in a civil action. Zuniga v. Zuniga, 13 S.W.3d 798, 801 (Tex.App.-San Antonio 1999, no pet.), disapproved in part on other grounds by Z.L.T., 124 S.W.3d 163, 166 (Tex. 2003). When determining whether an inmate is entitled to appear either in person or via alternate means, the inmate's right of access to the courts is balanced against the impact on the integrity of the correctional system. In re Z.L.T., 124 S.W.3d at 165. Several factors should be considered when deciding whether to grant an inmate's request to appear. Id. These factors include the cost and inconvenience of transporting the inmate to court; the security risk and potential danger to the court and the public of allowing the inmate to attend court; whether the inmate's claims are substantial; whether a determination of the matter can reasonably be delayed until the inmate is released; whether the inmate can and will offer admissible, non-cumulative testimony that cannot be offered effectively by deposition, telephone, or otherwise; whether the inmate's presence is important in judging his demeanor and credibility compared with that of other witnesses; whether the trial is to the court or to a jury; and the inmate's probability of success on the merits. Id. at 165-66.
When an inmate requests a bench warrant, the inmate bears the burden of identifying with sufficient specificity the grounds for establishing his right to relief. Id. at 166. As an inmate requesting a bench warrant, Mr. Ruiz must justify the need for his presence at trial. Id. The trial court does not have a duty to look beyond the bench warrant request and make an independent inquiry into the necessity of Mr. Ruiz's appearance, regardless of the content of Mr. Ruiz's request. Id.
In Z.L.T., the appellant referenced the above factors, but did not provide any factual information showing why his interest in appearing outweighed the impact on the correctional system. Id. at 166. The Texas Supreme Court concluded that the trial court did not abuse its discretion in denying the appellant's request to appear because the appellant did not meet his burden. Id. Here, Mr. Ruiz did not cite the above factors, nor did he include any factual information by which the trial court could balance those factors or assess the necessity of his appearance. Therefore, Mr. Ruiz did not provide any information showing how his interest in appearing outweighed the impact on the correctional system. Because we are bound by the Texas Supreme Court's holding in Z.L.T., we cannot find that the trial court abused its discretion in denying Mr. Ruiz's motion for a bench warrant or to appear via alternate means.
Conclusion
The judgment of the trial court is affirmed.