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Abbas v. Al Rubaiee

Court of Appeals of Texas, Fourteenth District
Dec 30, 2021
No. 14-20-00315-CV (Tex. App. Dec. 30, 2021)

Opinion

14-20-00315-CV

12-30-2021

QUSAY ABBAS, Appellant v. MARYAM EMAD ABUDULAZEEZ AL RUBAIEE, Appellee


On Appeal from the 280th District Court Harris County, Texas Trial Court Cause No. 2019-90748

Panel consists of Justices Jewell, Spain, and Wilson.

MEMORANDUM OPINION

CHARLES A. SPAIN, JUSTICE

Appellant Qusay Abbas (Husband) appeals the trial court's granting of a protective order in favor of appellee Maryam Emad Abudulazeez al Rubaiee (Wife). Husband raises a single issue on appeal, asserting the trial court abused its discretion in denying his request for an opportunity to retain counsel made at the protective-order hearing. However, because Husband did not make any request of or seek a ruling from the trial court, we affirm the final protective order rendered by the trial court. Tex.R.App.P. 33.1.

A protective order rendered pursuant to the Family Code is appealable. Tex. Fam. Code Ann. § 81.009(a). However, a protective order rendered against a party in a suit for dissolution of a marriage may not be appealed until the time a final decree of dissolution of the marriage becomes a final, appealable order. Tex. Fam. Code Ann. § 81.009(b). Even though the protective order was rendered during the time that Husband and Wife had a pending divorce proceeding, the protective order was not rendered against Husband "in a suit for dissolution of marriage." See id. And because the final protective order disposed of all parties and all issues in the case, we conclude that it was a final, appealable order. See Tex. Fam. Code Ann. § 81.009(a); see also Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001).

I. Background

The State, on behalf of Wife, filed an application for protective order in Harris County for Wife and her minor daughter on December 31, 2019. Tex. Fam. Code Ann. § 81.007(a). On January 2, 2020, the trial court entered a temporary ex parte protective order in favor of Wife and her minor daughter. Tex. Fam. Code Ann. § 83.001. Husband received notice of the hearing regarding the protective order on January 14, 2020. The hearing was scheduled for January 21, 2020.Husband appeared at the hearing without counsel and discussed his lack of counsel with the trial court:

The Family Code provides that if a respondent receives service of the application within 48 hours of the time set for hearing, then respondent has insufficient notice of the hearing and the court shall reschedule the hearing. Tex. Fam. Code Ann. § 84.004(a). Husband does not dispute he received service at least 48 hours before the hearing.

THE COURT: You speak English. Do you understand English as well as you speak English?
HUSBAND: Yes.
THE COURT: So you do not need an interpreter; is that correct?
HUSBAND: Yes. Just attorney.
THE COURT: I'm sorry?
HUSBAND: Just an attorney.
THE COURT: Okay. Well I don't appoint attorneys in this court. Okay. So sir, I have to give you some instructions since you are here representing yourself. Neither I nor Ms. Barron can assist you in your presentation of your case. We're not allowed to and if either of us did so, we can get in trouble. So you are totally responsible for any questions that you want to ask the witness. You're also responsible for any evidence that you want me to hear or to take notice of. I can't help you get that evidence in. There are certain rules that you have to follow and procedures; and if you don't know, neither Ms. Barron nor myself are able to assist you. Do you understand that, sir?
HUSBAND: Yes.

Husband never filed a written motion for continuance pursuant to Texas Rule of Civil Procedure 251 or made the trial court aware that he wanted additional time to secure a retained attorney. See Tex. R. Civ. P. 251. The trial court signed the final protective order in favor of Wife on January 21, 2020.

II. Analysis

On appeal, Husband argues that he requested an opportunity to retain counsel, but the trial court denied his request. Because he was unable to retain counsel, Husband claims that he was not able to introduce any probative evidence on his behalf. Relying on caselaw addressing the propriety of a trial court's denial of a motion for continuance, Husband asserts that the trial court abused its discretion in denying his request. Husband contends that the trial court's denial of his "request" violated his due process and constitutional rights to counsel.

In response, the State argues that Husband has no constitutional or statutory right to representation in the protective-order proceeding. Because Husband has no right to counsel in such a proceeding, the State argues that the trial court did not abuse its discretion in conducting the protective-order proceeding. Finally, the State also contends that Husband did not request a continuance and therefore waived that issue on appeal.

A. Right to counsel

We first address Husband's claims that his constitutional and due-process rights were violated. Though the Sixth Amendment provides that "in all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense," there is no civil analogue. U.S. Const. amend. VI; see also Tex. Const. art. I, § 10 ("In all criminal prosecutions the accused shall have . . . the right of being heard by himself or counsel, or both[.]"); Approximately $42,850.00 v. State, 44 S.W.3d 700, 701-02 (Tex. App.-Houston [14th Dist.] 2001, no pet.) ("This Court has specifically held that neither the Texas nor the United States Constitution guarantees a right to counsel in a civil suit."). Civil litigants are generally not entitled to appointed counsel absent a legislative mandate. See Gibson v. Tolbert, 102 S.W.3d 710, 712 (Tex. 2003); Travelers Indem. Co. v. Mayfield, 923 S.W.2d 590, 594 (Tex. 1996) (supreme court has "never held that a civil litigant must be represented by counsel in order for a court to carry on its essential, constitutional function"). Trial courts are statutorily authorized to appoint counsel in certain civil matters. E.g., Tex. Fam. Code Ann. § 107.013(a) (providing court must appoint counsel to represent indigent parent opposing termination of parent-child relationship); Tex. Fam. Code Ann. § 51.10 (establishing power to appoint counsel in juvenile-delinquency cases); Tex. Gov't Code Ann. § 24.016 (establishing district judge's power to appoint counsel for indigent party). However, Husband had no statutory or constitutional right to have counsel appointed for him in the protective-order proceeding. See Tex. Fam. Code Ann. §§ 71.001-93.004; see also Culver v. Culver, 360 S.W.3d 526, 535 (Tex. App.- Tyler 2011, no pet.) (noting there is no right to effective assistance of counsel in protective-order proceeding).

B. Right to access retained counsel

Husband's arguments also raise another issue, and that is whether he was denied the right to access retained counsel. In Texas, an individual has the option of appearing in person or by an attorney. See Tex. R. Civ. P. 7; Kunstoplast of America, Inc. v. Formosa Plastics Corp., 937 S.W.2d 455, 456 (Tex. 1996). Though a party has the choice to be represented by counsel, constitutional due process is implicated if a party is denied access to counsel of its choosing, or if the trial court refuses to hear from counsel. "If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense." Powell v. Alabama, 287 U.S. 45, 69 (1932).

All of the cases relied on by Husband address situations in which a party's motion for continuance implicated the right to access counsel. See Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986) ("The right to counsel is a valuable right; its unwarranted denial is reversible error."); State v. Crank, 666 S.W.2d 91, 94 (Tex. 1984) ("We recognize the right to counsel and a fair representation at an administrative hearing is one of constitutional dimensions.") (citing Mosley v. St. Louis Sw. Ry., 634 F.2d 942, 946 (5th Cir. 1981) ("The right of access to retained counsel is one of constitutional dimensions and should be freely exercised without impingement.")). However, Husband has not preserved that complaint for appellate review.

C. Husband never requested a continuance

To present a complaint for appellate review, the record must show a complaint was communicated to the trial court by a timely motion, request, or objection. Tex.R.App.P. 33.1(a). When a movant seeks a continuance of a trial or hearing, Texas Rule of Civil Procedure 251 requires the party to show sufficient cause supported by affidavit, consent of the parties, or operation of law as support for its motion. Tex.R.Civ.P. 251.

Contrary to his assertions in this appeal, the record reflects that Husband never filed a motion for continuance in compliance with Rule 251, nor did he orally request additional time to retain a lawyer. See id. The record does not reveal any request made by Husband that required a ruling by the trial court. When Husband was told by the trial court that a lawyer could not be appointed for him, he did not seek a postponement of the hearing so that he could have additional time to retain counsel. Simply put, we have no ruling or refusal to rule to evaluate. See Tex. R. App. P. 33.1.

During Husband's testimony, the trial court asked Husband if he had any documentation to support his arguments. In response, Husband stated that he did not have the documentation with him and "[t]hat's why I want to reschedule." In this exchange, Husband never raised his claim that he needed additional time to retain an attorney or linked his inability to secure needed documentation to the lack of counsel. Therefore, this statement did not preserve any error, as raised in this appeal, for this court to review. See Tex. R. App. P. 33.1 (complainant must state grounds for requested ruling with "sufficient specificity to make the trial court aware of the complaint.").

III. Conclusion

We affirm the trial court's final protective order as challenged on appeal.


Summaries of

Abbas v. Al Rubaiee

Court of Appeals of Texas, Fourteenth District
Dec 30, 2021
No. 14-20-00315-CV (Tex. App. Dec. 30, 2021)
Case details for

Abbas v. Al Rubaiee

Case Details

Full title:QUSAY ABBAS, Appellant v. MARYAM EMAD ABUDULAZEEZ AL RUBAIEE, Appellee

Court:Court of Appeals of Texas, Fourteenth District

Date published: Dec 30, 2021

Citations

No. 14-20-00315-CV (Tex. App. Dec. 30, 2021)

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