Armstrong v. Randle, 06-93-00021-CV

• Decision Date: 09 August 1994
• Docket Number: No. 06-93-00021-CV,06-93-00021-CV
• Citation: 881 S.W.2d 53
• Parties: Brooks ARMSTRONG, Appellant, v. Robert Edward RANDLE, Administrator of the Estate of Beth Ann Randle, Deceased, and Robert Edward Randle, Guardian and Next Friend of Robert Ryan Randle, a Minor, Appellees.
• Court: Texas Court of Appeals

Page 53

881 S.W.2d 53

Brooks ARMSTRONG, Appellant, v. Robert Edward RANDLE, Administrator of the Estate of Beth Ann Randle, Deceased, and Robert Edward Randle Guardian and Next Friend of Robert Ryan Randle, a Minor, Appellees.

No. 06-93-00021-CV.

Court of Appeals of Texas Texarkana.

Submitted May 24, 1994.

Decided June 28, 1994.

Rehearing Denied Aug. 9, 1994.

Ronald S. Gutierrez, Austin, for appellant.

Edward E. Ellis, Ellis & Clark, Paris, for appellees.

Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.

OPINION

CORNELIUS, Chief Justice.

This is a civil wrongful death action against Brooks Armstrong for causing the death of Beth Ann Randle, the mother of Robert Ryan Randle. Robert Edward Randle (Ryan Randle's father and Beth Ann Randle's former husband) filed the suit as administrator of Beth Ann Randle's estate and as Ryan Randle's next friend. Armstrong was convicted of murdering Beth Randle and was sentenced to life in prison. His conviction was subsequently affirmed by this court. ¹ In this civil suit, the trial court, based on a jury verdict, awarded the Randles $491,700.00 actual damages and $5,000,000.00 exemplary damages, plus prejudgment and post-judgment interest.

In Armstrong's first two points of error, he contends that the trial court improperly denied his application for writ of habeas corpus ad testificandum. ² He first contends that this denial violated the Texas Constitution's open courts provision.

The open courts provision provides: "All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law." The provision is one of the two due course of law provisions of our Constitution, the other being the due course of law provision of Article I, § 19. ³ Due course of law, as used in Section 19, has traditionally been viewed as co-extensive with the United States Constitution's due process of law guarantee. ⁴ See Mellinger v. City of Houston, 68 Tex. 37, 3 S.W. 249, 252-53 (1887); In re Estate of Touring, 775 S.W.2d 39, 42 (Tex.App.--Houston [14th Dist.] 1989, no writ); Massachusetts Indem. & Life Ins. Co. v. Texas State Bd. of Ins., 685 S.W.2d 104, 113-14 (Tex.App.--Austin 1985, no writ).

The open courts provision is not co-extensive with the due course of law provision. Nelson v. Krusen, 678 S.W.2d 918, 921 (Tex.1984). Although both provisions guarantee due process, the open courts provision, TEX. CONST. art. I, § 13, establishes a substantial right, independent of TEX. CONST. art. I, § 19 and other constitutional provisions. Id. The provision includes at least three separate constitutional guarantees: (1) courts must actually be operating and available; (2) the Legislature cannot impede access to the courts through unreasonable financial barriers, and (3) meaningful remedies must be afforded and the Legislature may not abrogate the right to assert a well-established common law cause of action unless the reason for its action outweighs the litigants' constitutional right of redress. Trinity River Auth. v. URS Consultants, Inc.-Texas, 37 Tex.Sup.Ct.J. 742, 743, 1994 WL 152324 (Apr. 28, 1994). The common theme of these guarantees is that the Legislature may not by statute impede access to the courts. See Texas Ass'n of Business v. Air Control Bd., 852 S.W.2d 440, 448 (Tex.1993).

In this case Armstrong challenges the discretionary act of a trial judge, not a legislative enactment. The open courts provision is therefore inapplicable to this issue. See Peeler v. Hughes & Luce, 868 S.W.2d 823, 834 (Tex.App.--Dallas 1993, writ requested). Even if, for the purposes of argument, we assume that the open courts provision applies to this issue, our analysis is complicated by the fact that case law analysis under the open courts provision, which we would normally review for guidance, is not helpful because it and the tests applied invariably deal with statutory restrictions. ⁵ We will, however, use that authority to address Armstrong's open courts complaint.

A party may not be denied access to the courts merely because he is an inmate. See Hudson v. Palmer, 468 U.S. 517, 523, 104 S.Ct. 3194, 3198, 82 L.Ed.2d 393, 401 (1984). There is, however, no absolute right for an inmate to appear in court in a civil case. ⁶ See Pruske v. Dempsey, 821 S.W.2d 687, 689 (Tex.App.--San Antonio 1991, no writ); Nichols v. Martin, 776 S.W.2d 621, 623 (Tex.App.--Tyler 1989, orig. proceeding); Birdo v. Holbrook, 775 S.W.2d 411, 414 (Tex.App.-- Fort Worth 1989, writ denied); Brewer v. Taylor, 737 S.W.2d 421, 423-24 (Tex.App.--Dallas 1987, no writ); Doyle v. Doyle, 482 S.W.2d 285, 286 (Tex.Civ.App.--Beaumont 1972), cert. denied, 409 U.S. 855, 93 S.Ct. 195, 34 L.Ed.2d 100 (1972). In considering an inmate's right to appear, the courts generally follow a balancing approach--weighing the preservation of the correctional system's integrity against the prisoner's right of access, with a goal of achieving a balance that is fundamentally fair. Brewer v. Taylor, 737 S.W.2d at 423-24. Review of trial court decisions on this issue has been under an abuse of discretion standard. See id. at 424.

There is a clear distinction between the right of access to the judicial system and the right to personally appear. If the inmate and his counsel are afforded adequate opportunity to confer confidentially and to petition the courts about the matters in controversy, the inmate's right of access is satisfied. Stone v. Morris, 546 F.2d 730, 735 (7th Cir.1976), cited with approval in Brewer v. Taylor, 737 S.W.2d at 423. In Stone, the court listed a number of factors that should be considered in balancing the inmate's rights against the integrity of the correctional system. They include: (1) the cost and inconvenience of transporting the inmate to court; (2) the security risk and danger to the court and the public by allowing the inmate to attend court; (3) whether the inmate's claims are substantial; (4) whether a determination of the matter can reasonably be delayed until the inmate is released; (5) whether the inmate can and will offer admissible, noncumulative testimony that cannot be offered effectively by deposition, telephone, or otherwise; (6) whether the inmate's presence is important in judging his demeanor and credibility compared with that of other witnesses; (7) whether the trial is to the court or to a jury; and (8) the inmate's probability of success on the merits. Stone v. Morris, 546 F.2d at 735-36, cited with approval in Pruske v. Dempsey, 821 S.W.2d at 689, and Brewer v. Taylor, 737 S.W.2d at 423. But the key factor is whether the inmate is represented by counsel. Pruske v. Dempsey, 821 S.W.2d at 689. The court in Pruske noted that the inmate was a defendant in the action, that he had made it clear well in advance that he denied the plaintiff's claims and wished to either have an appointed attorney or to represent himself, and that the trial court's denial of his requests resulted in a post-answer default judgment. Based on these reasons, the court reversed the trial court's post-answer default judgment with the order that, on remand, the trial court review the Stone factors and apply the balancing test to determine if the inmate was entitled to appear.

Only where an inmate has been effectively barred from presenting his case, such as in Pruske or in Nichols, wherein a pro se inmate was refused the right to appear in court, has an appeals court been willing to find error in the denial of an inmate's request to personally appear. The Dallas court's holding in Brewer, which sets out the balancing test and factors noted above, appears to be the model followed by the other Texas courts of appeals in recent decisions.

Armstrong relies on several cases addressing the general right of a litigant to appear in court. The issue here, however, is the right of an inmate to personally appear at a civil trial. Armstrong argues that, because he did not initiate this civil suit, he should be allowed to personally appear, noting that in most of the reported cases the prisoner was the plaintiff. Although whether an inmate is a plaintiff or a defendant in an action is certainly a factor for the courts to consider, ⁷ we do not find it dispositive of this issue. In those cases in which the courts found error in the denial of an inmate's right to personally appear, the ruling was not based solely on the fact that the inmate was a defendant, but was based on additional reasons, viz., the inmate had no lawyer, was proceeding pro se, or was denied the right to communicate with his lawyer, all of which effectively barred his access to the courts. See Pruske v. Dempsey, 821 S.W.2d at 688-89; National Ins. Co. of America v. Broome, 401 S.W.2d 862, 864-65 (Tex.Civ.App.--Tyler 1966, writ ref'd n.r.e.). The fact that an inmate initiates the action does not necessarily preclude his appearance in person, the issue again being whether his access to the courts is effectively barred. See Nichols v. Martin, 776 S.W.2d at 622-23.

In this case, Armstrong was represented by counsel from the very beginning of the action. The transcript and record at trial show that his counsel presented an active and aggressive defense both before and at trial.

Armstrong argues that he was the only witness who could contest the plaintiffs' claims that he intentionally killed Randle and that, because of his incarceration, he was denied the ability to communicate with and assist his counsel in presenting his defense. 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, see Brewer v. Taylor, 737 S.W.2d at 424. He also has not shown that he was denied an opportunity to communicate with his attorney.

Armstrong did not file his application for the writ until the first day of the civil trial, ...