Opinion
No. 04-00-00763-CV
Delivered and Filed: October 20, 2004.
Appeal from the 225th Judicial District Court, Bexar County, Texas, Trial Court No. 1999-EM5-03756, Honorable John J. Specia, Jr., Judge Presiding.
Affirmed.
Sitting: Paul W. GREEN, Justice, Sarah B. DUNCAN, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
This restricted appeal is from an order establishing the parent-child relationship between Zeb L. Thompson and three minor children. On original submission, Thompson raised three issues, contending the trial court erred in: (1) failing to give appellant notice of the hearing; (2) failing to ensure that a reporter's record was made of the proceedings; and (3) failing to consider and rule on appellant's application for writ of habeas corpus ad testificandum, requesting that appellant be permitted to personally appear at all hearings. We reached only the third issue, holding "[t]he trial court abused its discretion in failing to directly address the appellant's request to be present at all hearings." In re Z.L.T., 82 S.W.3d 100, 103 (Tex.App.-San Antonio 2002) (en banc). The supreme court reversed, holding "the trial court did not abuse its discretion by implicitly denying Thompson's request for a bench warrant," "[b]ecause Thompson failed to make the required showing, and the trial court is not required, on its own, to seek out the necessary information." In re Z.L.T., 124 S.W.3d 163, 166 (Tex. 2003). The court remanded the appeal for this court to consider Thompson's remaining issues. Id. On remand, we affirm the trial court's judgment.
1. Thompson first argues "[t]he trial court erred by wholly failing to give any notice to appellant that the case was set for trial as required by Texas Rule of Civil Procedure 245 and 246, thereby denying him his rights to due process, access to the courts, and to a jury trial." As Thompson acknowledges, however, "[b]ecause notice of a trial setting ordinarily does not affirmatively appear in the record, the trial court is presumed to have heard the case only after proper notice, and to overcome this presumption the record must affirmatively show lack of notice by affidavit of [sic] other competent evidence." Estrada v. Wausau Ins. Co., 985 S.W.2d 480, 482 (Tex.App.-San Antonio 1998, pet. denied). Recognizing the record contains no such evidence, Thompson makes three arguments for why this presumption should not be applied in his case. None convinces us to depart from the settled law regarding the presumption of notice.
Thompson first argues the presumption should not be applied to him because, he argues, he did not receive notice of the final judgment within the time period for filing a motion for new trial and therefore was "denied (through no fault of his own) the chance to rebut this presumption of notice by affidavit or other competent evidence." However, there is no proof in the record to support Thompson's assertion that he did not timely receive notice of the judgment; Rule 306a(3) affirmatively requires the clerk to mail notice of a final judgment to the parties, Tex. R. Civ. P. 306a(3); and the record contains a certificate stating that Thompson's last known address was "1100 FM 655, Ramsey Unit II {#563152}, Rosharon TX 77583," the same address reflected on Thompson's September 23, 1999 and April 2, 2000 letters to the trial court, his application for a bench warrant, his notice of restricted appeal, his affidavit of inability to pay costs, his request for preparation of the reporter's record, and his brief in this court. Given these circumstances, we hold Thompson's alleged failure to receive notice of the final judgment does not support his argument that the presumption of notice of the trial setting should not be applied.
Thompson also argues the presumption should not be applied to him because "there is nothing in the reporter's record from the July 14th trial that shows the court even acknowledged or knew about appellant's answer being on file, nor is there any mention by the trial court that appellant had been duly notified of the trial." This may be. But the trial court's judgment states that Thompson was "duly notified." "Recitals contained in a judgment are presumed to be true; such presumption is rebuttable when a conflict exists between the judgment and the record." F.S. New Products, Inc. v. Strong Indus., Inc., 129 S.W.3d 606, 629 (Tex.App.-Houston [1st Dist.] 2004, no pet. h.). Here, the record does not conflict with the judgment's recital of notice. Accordingly, the judgment recital would control even if we did not apply the presumption of notice of a trial setting.
Finally, Thompson argues that, "despite appellant's request that a copy of such a notice be placed in the clerk's record for this appeal . . ., no notice of any kind can be found anywhere in this record." As we stated in Estrada, however, "notice of a trial setting ordinarily does not affirmatively appear in the record." Estrada, 985 S.W.2d at 482. Indeed, it is because notices of trial settings are usually not made a part of the record that we presume notice absent evidence to the contrary. Under the circumstances, we are not inclined to disturb settled law regarding the presumption that Thompson received notice of the trial setting.
2. Thompson next argues "[t]he trial court erred by failing to ensure that a full and complete reporter's record was made of the [pre-trial] proceedings." We may not reverse a judgment unless an error of law "probably caused the rendition of an improper judgment; or . . . probably prevented the appellant from properly presenting the case to the court of appeals." Tex.R.App.P. 44.1(a). Thompson has made no such showing.
The record contains a transcript of the trial proceedings.
The trial court's judgment is affirmed.