Opinion
No. 05-05-00424-CV
Opinion issued March 30, 2006.
On Appeal from the 44th District Court, Dallas County, Texas, Trial Court Cause No. 04-03038-B.
Affirmed.
Before Justices O'NEILL, FITZGERALD, and LANG.
MEMORANDUM OPINION
Arthur Carson appeals the trial court's dismissal of his lawsuit against Joanne Carson. Appellant contends the trial court abused its discretion by not granting his request for writ of habeas corpus ad testificandum and by not providing an alternate means for appellant to present his case. Because all dispositive issues are settled in law, we issue this memorandum opinion. See Tex.R.App.P. 47.4. We affirm the trial court's judgment.
Appellant is incarcerated in the Texas Department of Criminal Justice, Institutional Division. On April 12, 2004, while incarcerated, appellant filed suit against appellee. The docket sheet shows appellant demanded a jury trial and paid the jury fee. On August 30, 2004, appellant filed a request that the case be set for trial. The trial court set the case for trial on January 18, 2005. On October 20, 2004, appellant filed a request for writ of habeas corpus ad testificandum. The record does not show the trial court expressly ruled on appellant's request. The docket sheet entry for January 18, 2005 states "DWOP." On January 25, 2005, the trial court signed an order of dismissal for want of prosecution.
In his sole issue on appeal, appellant questions "whether the trial court abused its discretion in failing to determine whether appellant an inmate should attend court proceedings or proceed by other means before dismissal of [his] lawsuit." If the trial court had failed to rule on appellant's motion without objection by appellant, then appellant would not have preserved the issue for appellate review. See Tex.R.App.P. 33.1(a)(2). However, the supreme court has ruled that when a trial court proceeds to trial without issuing a requested bench warrant, "it is clear that the trial court implicitly denied" the request to bring the inmate-litigant to court. In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003). Accordingly, we proceed to appellant's arguments under his issue, that the trial court abused its discretion by (1) not granting appellant's request for writ of habeas corpus ad testificandum and (2) not providing an alternate means for appellant to present his case.
Although litigants cannot be denied access to the courts simply because they are inmates, an inmate-litigant does not have an absolute right to appear at every court proceeding. Id. The inmate's right of access to the courts must be weighed against the protection of our correctional system's integrity. We review the trial court's denial of the writ of habeas corpus ad testificandum for abuse of discretion. In re Z.L.T., 124 S.W.3d at 165; Carson v. Serrano, 96 S.W.3d 697, 699 (Tex.App.-Texarkana 2003, pet. denied).
In deciding whether to issue a writ of habeas corpus ad testificandum, Texas courts consider a series of factors set out in Stone v. Morris, 546 F.2d 730, 735-36 (7th Cir. 1976). See In re Z.L.T., 124 S.W.3d at 165. Those factors are:
(1) the cost and inconvenience of transporting the prisoner to the courtroom;
(2) the security risk the prisoner presents to the court and public;
(3) whether the prisoner's claims are substantial;
(4) whether the matter's resolution can reasonably be delayed until the prisoner's release;
(5) whether the prisoner can and will offer admissible, noncumulative testimony that cannot be effectively presented by deposition, telephone, or some other means;
(6) whether the prisoner's presence is important in judging his demeanor and credibility; and
(7) the prisoner's probability of success on the merits.
Id. at 165-66. The inmate-litigant has the burden of presenting evidence supporting these factors in his request for the writ. Id. at 166. The trial court has no duty to go beyond the request for the writ and independently inquire into the necessity of an inmate's appearance. Id. "[T]he prisoner requesting a bench warrant must justify the need for his presence." Id.
Concerning the first factor, the cost and inconvenience of transporting the prisoner to the courtroom, appellant stated in his request for the writ: "The cost and inconvenience of transporting Plaintiff to Court would be minimal, since the Dallas County Sheriff Department frequently transport Prisoner to and from the Texas Prison, to the Dallas County Jail for Court appearance several times per Week." However, this statement does not explain whether the prisoners making court appearances in Dallas do so in the same courthouse as the trial court in this case or whether special transportation and security will be required to bring appellant to the trial court.
All quotations from appellant's request for writ of habeas corpus ad testificandum use his spelling, punctuation, and capitalization except where shown otherwise by brackets.
Concerning the second factor, appellant stated, "There would be no security risk and danger to the Court and the public by allowing Plaintiff to attend the jury Trial, since Plaintiff Security level in Prison is minimum custody." Appellant did not support this statement with any evidence. He did not inform the trial court of relevant information to determine appellant's security risk, such as the crime for which he is incarcerated, the sentence he received, whether he has been subject to disciplinary measures while incarcerated, whether he has been denied parole, and the reasons for any denial.
On the third factor, appellant told the trial court, "Plaintiff claims are substantial upon whom rest the burden of proof on the whole case, as pursuant to Rule 265(a), Texas Rules of Civ.P." Appellant presents no evidence in support of his assertion that his claims against appellee are substantial. The trial court could conclude appellant's claims, on their face, lack substance. The first claim appears to be a breach of contract asserting appellee failed to complete her duties as a corporate officer, but appellant provided no explanation of how he has standing to assert the claim of the corporation. Appellant's second claim is for breach of an agreement to form a relationship; however, the agreement attached to appellant's petition states he and appellee have the right to terminate the relationship and "sever all ties and go their seperate [sic] ways."
On the fourth factor, whether the case can be delayed until his release, appellant provided no evidence but only rhetoric about the ills of delaying justice. Appellant did not provide any pertinent information, such as when he would be eligible for parole or when he would reach his mandatory release date.
On the fifth factor, appellant stated, "Plaintiff can and will offer admissible, noncumulative testimony that cannot be offered effectively by deposition, telephone or otherwise." However, appellant provided no explanation of the content of that testimony demonstrating its admissibility nor any explanation of why alternate means of presenting his case would not be effective.
On the sixth factor, appellant stated, "Plaintiff presence is important for the Jury to judge His demeanor and credibility compared with that of the Defendant or other witnesses." Again, appellant did not provide any explanation or evidence to support this conclusion.
On the seventh factor, appellant stated, "Plaintiff probability of success on the merits is greater, and would otherwise without Plaintiff's presence, would effectively bar Plaintiff from presenting His case." Appellant presented no argument or evidence demonstrating a probability of success. As shown in the discussion of the third factor, the trial court could conclude appellant's claims, on their face, show a lack of probability of success. Furthermore, appellant was required by section 14.004 of the civil practice and remedies code to file a list of his other pro se lawsuits as an inmate and provide particular information about each suit. Tex. Civ. Prac. Rem. Code Ann. § 14.004 (Vernon 2002). Appellant filed an affidavit listing twenty-one pro se inmate lawsuits he has brought, but he failed to provide all the information required by section 14.004. The failure to comply with this provision warrants dismissal of appellant's lawsuit. See Carson v. Walker, 134 S.W.3d 300, 303 (Tex.App.-Amarillo 2003, pet. denied). This fact also demonstrates appellant's lack of probability of success.
After considering appellant's request for writ of habeas corpus ad testificandum, we conclude the trial court did not abuse its discretion in denying appellant's request for the writ of habeas corpus ad testificandum.
Appellant also argues "the trial court further abused its discretion in refusing to consider [appellant's] request for testimony by telephone, or other means." The record does not show appellant made any such request. Furthermore, in his request for writ of habeas corpus ad testificandum, appellant asserted that testimony by telephone or other means would not be effective. Also, the trial court had no duty to sua sponte go beyond appellant's request for writ of habeas corpus ad testificandum and consider alternate means for appellant to present his case. See In re Z.L.T., 124 S.W.3d at 166. We conclude appellant's argument lacks merit.
We hold appellant has not shown the trial court abused its discretion by not granting appellant's request for writ of habeas corpus ad testificandum or providing alternate means for appellant to present his case. We overrule appellant's issue.
We affirm the trial court's judgment.