In re Taylor

• Decision Date: 18 October 2000
• Docket Number: No. 10-00-253-CV,10-00-253-CV
• Citation: 28 S.W.3d 240
• Parties: (Tex.App.-Waco 2000) IN RE RICHARD OWEN TAYLOR
• Court: Texas Court of Appeals

Page 240

28 S.W.3d 240 (Tex.App.-Waco 2000)

IN RE RICHARD OWEN TAYLOR

No. 10-00-253-CV

IN THE TENTH COURT OF APPEALS

October 18, 2000

Original Proceeding

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Chief Justice Davis, Justice Vance, and Justice Gray.

MEMORANDUM OPINION

DAVIS, Chief Justice.

Richard Owen Taylor seeks a writ of mandamus from this Court compelling Respondent, the Honorable Joe N. Johnson, Judge of the 170th District Court of McLennan County, to act on his motion for contempt, in which he alleges that his former spouse Valerie has failed to comply with the terms of their divorce decree, and on his application for writ of habeas corpus ad testificandum, by which he seeks to testify in Respondent's court on the contempt motion.

BACKGROUND

The divorce decree designates Valerie as sole managing conservator of the parties' three children and Richard as possessory conservator. The decree contains a standard possession order which provides that each has the parental rights and duties contained in sections 153.073 and 153.076 of the Family Code including:

* the right to receive information from the other parent concerning the health, education, and welfare of the children;

* the duty to inform the other parent in a timely manner of significant information concerning the health, education, and welfare of the children;

* the right to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the children; and

* the right of access to medical, dental, psychological, and educational records of the children.

See Tex. Fam. Code Ann. § 153.073(a)(1), (2) (Vernon 1996), § 153.076(a) (Vernon Supp. 2000).

Richard filed a restricted appeal from the divorce decree which is currently pending in this Court. After he filed his appeal, he filed a motion for contempt. He alleges in this motion that he has written Valerie thirteen times since the divorce trial, requesting information about his children. He further alleges:

[Valerie] has refused to respond to all of them. [She] has even returned one letter without opening it. [Her] sister, Robbie Ault, who [she] lives with has wrote [sic] [Richard] and told him that [Valerie] did not want anything to do with him and if he wanted to know about the children to ask his mother.

On the same date Richard filed the contempt motion, he filed an application for writ of habeas corpus ad testificandum "or in the alternative, request for teleconference appearance." In this pleading, he requests that Respondent issue the writ so he can appear in court and be heard on the contempt motion or alternatively, that Respondent permit him to appear via videoconferencing. To date, Respondent has not ruled on these requests.

After Richard filed the instant mandamus proceeding, we requested a response. Valerie filed two responsive pleadings: a motion to dismiss and a response on the merits.

MOTION TO DISMISS

Valerie's motion asserts that dismissal is appropriate for three reasons. First, she alleges that Richard's mandamus application is defective because: (1) "the signature block on the cover page of the document contains no signature"; (2) the application does not comply with the requirements of Rule of Appellate Procedure 9.4; (3) the cover page includes the cause number of Richard's restricted appeal from the divorce proceedings; and (4) Richard's verification is not notarized.¹

The United States Supreme Court has instructed that we hold pro se pleadings "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 596, 30 L. Ed. 2d 652 (1972); accord Zuniga v. Zuniga, 13 S.W.3d 798, 803 (Tex. App.--San Antonio 1999, no pet.); Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.--Houston [1st Dist.] 1992, orig. proceeding); Birdo v. DeBose, 819 S.W.2d 212, 216 (Tex. App.--Waco 1991, no writ). Thus, we review such pleadings "with patience and liberality." Barnes, 832 S.W.2d at 426; accord Birdo, 819 S.W.2d at 216.

Richard signed his mandamus petition on page five. Therefore, it complies with Rule of Appellate Procedure 9.1. See Tex. R. App. P. 9.1(b). Even assuming that his petition does not wholly comply with Rule 9.4 and bears the incorrect cause number, Rule 9.4(i) provides only that we "may strike" nonconforming documents. Id. 9.4(i). In view of the liberal standard enunciated by the Supreme Court in Haines, we decline to do so.

Rule of Appellate Procedure 52.3 requires that petitions in original proceedings be verified. Id. 52.3. Valerie complains that Richard's petition does not satisfy this requirement because it is not notarized. However, section 132.001(a) of the Civil Practice and Remedies Code provides that a prison inmate may verify pleadings with an unsworn declaration, except in limited circumstances not applicable to this proceeding. See Tex. Civ. Prac. & Rem. Code Ann. § 132.001(a) (Vernon 1997); Smith v. McCorkle, 895 S.W.2d 692, 692 (Tex. 1995) (orig. proceeding). Richard's unsworn declaration substantially complies with the statutory requirements. See Tex. Civ. Prac. & Rem. Code Ann. §§ 132.002, 132.003 (Vernon 1997); Smith, 895 S.W.2d at 692. Thus, his petition is properly verified.

Valerie next contends that this proceeding must be dismissed because Richard has failed to serve the Office of the Attorney General with a copy of his mandamus application. She contends the Attorney General's office is a real party in interest because it intervened in the underlying divorce proceedings and obtained a judgment against Richard for retroactive child support under chapter 231 of the Family Code.

Rule of Appellate Procedure 52.2 identifies the parties to an original proceeding as the relator, the respondent, and the real parties in interest. Tex. R. App. P. 52.2. "A person whose interest would be directly affected by the relief sought is a real party in interest and a party to the case." Id.

In the underlying proceeding, Richard seeks to have Valerie held in contempt of court because she allegedly has failed to comply with their divorce decree in that she has not: provided him with information regarding the health, education, and welfare of their children; consulted with him regarding their health, education and welfare; or provided him with access to the children's medical and educational records. See Tex. Fam. Code Ann. §§ 153.073(a)(1), (2), 153.076(a).

Even assuming Richard prevails on these allegations, affirmative findings would not "directly affect" the Attorney General's judgment for retroactive child support. See Tex. R. App. P. 52.2. Therefore, the Attorney General is not a real party in interest under Rule 52.2. Id.

Finally, Valerie avers that this proceeding should be dismissed as moot because Richard's forty-year prison sentence means that a decision on the merits of his application "cannot have any practical effect on the existing controversy." We disagree.

Concerning the mootness doctrine, our Supreme Court has said, "This court will not proceed to a determination when its judgment would be wholly ineffectual." City of W. Univ. Place v. Martin, 132 Tex. 354, 356, 123 S.W.2d 638, 639 (1939) (quoting Brownlow v. Schwartz, 261 U.S. 216, 217, 43 S. Ct. 263, 264, 67 L. Ed. 620 (1923)); University Interscholastic League v. Jones, 715 S.W.2d 759, 761 (Tex. App.--Dallas 1986, writ ref'd n.r.e.). "Thus, when a judgment cannot have a practical effect on an existing controversy, the case is moot." Bonilla v. Roberson, 918 S.W.2d 17, 20 (Tex. App.--Corpus Christi 1996 no writ); accord Scolaro v. State ex rel. Jones, 1 S.W.3d 749, 758 (Tex. App.--Amarillo 1999, no pet.).

The parent-child relationship is one of constitutional dimension. See In re J.W.T., 872 S.W.2d 189, 194-95 (Tex. 1994) (citing Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976)); In re Verbois, 10 S.W.3d 825, 830 (Tex. App.--Waco 2000, orig. proceeding [mand. denied]); accord Stanley v. Illinois, 405 U.S. 645, 650-51, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551 (1972). A parent does not forfeit his parental rights merely because he is incarcerated. See, e.g., In re D.G., 5 S.W.3d 769, 771-73 (Tex. App.--San Antonio 1999, no pet.) (even though father's present imprisonment and past involvement with drugs and alcohol would support finding that termination was in his children's best interest, evidence of his efforts to change his lifestyle supported jury's verdict that termination was not in children's best interest); see also Texas Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re W.A.B., 979 S.W.2d 804, 807 (Tex. App.--Houston [14th Dist.] 1998, pet. denied).

For these reasons, we conclude that a parent who is incarcerated can continue to assert his parental rights to the extent reasonably possible given the limitations of his confinement. Thus, a ruling on Richard's contempt motion would not be ineffectual, and this proceeding is not moot. Cf. Brownlow, 261 U.S. at 217, 43 S. Ct. at 264; Martin, 132 Tex. at 356, 123 S.W.2d at 639; Scolaro, 1 S.W.3d at 758; Bonilla, 918 S.W.2d at 20; Jones, 715 S.W.2d at 761. Accordingly, we deny Valerie's motion to dismiss.

ADDITIONAL PROCEDURAL CHALLENGES

Valerie contends in her response that we should deny Richard's mandamus application because: (1) Richard has failed to join the Attorney General as a real party in interest to this proceeding; (2) the application is procedurally defective for reasons other than those discussed above; and (3) the question presented is moot. We have already rejected the first and third of these contentions.

Valerie contends that Richard's application is procedurally defective because: (1) he has not made a demand on Respondent to rule on the contempt motion; (2) his application is not captioned in the manner required by Rule of Appellate Procedure 52.1; (3) he has failed to file a certified or sworn copy of all documents material to his claim as...