In re Velez-Uresti

• Decision Date: 14 March 2012
• Docket Number: No. 08–10–00182–CV.,08–10–00182–CV.
• Citation: 361 S.W.3d 200
• Parties: In the Interest of Jonathan Ray VELEZ–URESTI, A Child.
• Court: Texas Court of Appeals

361 S.W.3d 200

In the Interest of Jonathan Ray VELEZ–URESTI, A Child.

No. 08–10–00182–CV.

Court of Appeals of Texas, El Paso.

Jan. 25, 2012.Rehearing Overruled March 14, 2012.

Alan Uresti, San Antonio, TX, pro se.

Rosario Reyes, San Antonio, TX, for Appellee.

Before McCLURE, C.J., RIVERA, and ANTCLIFF, JJ.

OPINION

ANN CRAWFORD McCLURE, Chief Justice.

Alan Uresti, appearing pro se, appeals from an order dismissing his motion to modify conservatorship for want of prosecution. As he frames the issue, “[t]his cause on appeal ... involves a 15–year long battle for custody....” For the reasons that follow, we affirm.

FACTUAL SUMMARY

On November 6, 1995, the trial court entered a decree of paternity establishing that Uresti is the father of Jonathan Ray Velez–Uresti. The court entered orders appointing the child's parents as temporary joint managing conservators. In 2009, Uresti filed a motion to modify seeking to be named sole managing conservator. On September 22, 2009, the trial court denied Uresti's request but entered additional temporary orders which established a progressive visitation schedule. Uresti subsequently filed a motion to modify the temporary orders seeking a standard possession order and a separate motion to modify child support. On March 25, 2010, the trial court sustained a contest to Uresti's affidavit of inability to pay costs and ordered him to pay all filing fees and service costs within twenty days of the date of the order. The court set Uresti's motion to modify for jury trial on May 17, 2010, but Uresti did not appear. The trial court dismissed the case because Uresti failed to appear and because he had failed to pay fees and costs as previously ordered. This appeal follows.

APPELLATE JURISDICTION

Uresti raises 54 issues on appeal. Issues 1–4 relate to a December 27, 2006 order finding Uresti in contempt and reducing child support arrearages to judgment. A contempt order is not reviewable by appeal. Norman v. Norman, 692 S.W.2d 655, 655 (Tex.1985); Hernandez v. Hernandez, 318 S.W.3d 464, 467 n. 1 (Tex.App.-El Paso 2010, no pet.). Contempt orders may only be reviewed by an application for a writ of habeas corpus, if the contemnor has been confined, or by a petition for a writ of mandamus, if the contemnor has not been confined. See Rosser v. Squier, 902 S.W.2d 962, 962 (Tex.1995); Ex parte Williams, 690 S.W.2d 243, 243 (Tex.1985). To the extent Uresti is raising an issue related to the 2006 arrearage judgment, his notice of appeal was untimely as he did not file it until June 4, 2010. See Tex.R.App.P. 26.1. For these reasons, we do not have jurisdiction to review his first four issues.

In Issues 5–8, Issues 13–15, Issues 17–33, Issues 35–44, and Issues 46–49, Uresti raises arguments related to sequential temporary orders, interlocutory rulings on multiple motions to recuse filed by him against a laundry list of jurists,¹ a motion to compel discovery, alleged ex parte communications, and alleged judicial conspiracies designed to violate his due process rights under the 14th Amendment of the United States Constitution. An appeal generally may be taken only from a final judgment. See Lehmann v. Har–Con Corp., 39 S.W.3d 191, 195 (Tex.2001). Appeals of interlocutory orders are appealable only when authorized by statute. Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex.1992); see, e.g., Tex.Civ.Prac. & Rem.Code Ann. § 51.014 (West 2008). It matters not whether constitutional complaints are lodged against these pre-trial determinations. In a suit to modify support or conservatorship under the Texas Family Code, a modification order is final and appealable. See Bilyeu v. Bilyeu, 86 S.W.3d 278, 282 (Tex.App.-Austin 2002, no pet.). The trial court has not entered a modification order because it has dismissed the suit. There is no statutory authorization to review the interlocutory rulings of which Uresti complains on appeal. Because we lack jurisdiction, we overrule Issues 5–8, Issues 13–15, Issues 17–33, Issues 35–44, and Issues 46–49.

DENIAL OF INDIGENCY

Issues 9–12, Issue 16, Issues 45–46, and Issues 50–51 involve the trial court's denial of Uresti's indigence status. We recognize the litany of unpublished opinions articulating the proposition that an order sustaining a contest to an affidavit of indigence is interlocutory and not appealable. We may review an order sustaining a contest only when it is made as part of a pending appeal from a final judgment or other appealable order. Tex. R.App.P. 20.1; In re Arroyo, 988 S.W.2d 737, 738–39 (Tex.1998). Because Uresti's modification proceeding was dismissed for his failure to pay court costs, his complaints arise directly from the dismissal order and are ripe for appellate review.

On February 13, 2010, Uresti filed an affidavit of inability to pay court costs. We cannot determine how many pages were incorporated into the affidavit, nor can we ascertain whether it was properly executed, because only the first page appears in the clerk's record. Uresti alleged that he was unemployed, without sufficient funds to pay court costs, owned no real estate, stocks, bonds, life insurance policies, or other property. He was unable to borrow the money and had no other sources of income. A contest was filed by Dinah Gaines, a staff attorney for the Bexar County Civil District Courts. The contest stated:

The District Judge Presiding, on behalf of the Judges and the other ² officers which are entitled or may be entitled to fees or costs of Court, movant in the above entitled and numbered cause hereby contests the Affidavit of Inability to Pay Costs filed by ALAN URESTI herein, and moves the court to require ALAN URESTI to give good and ample security to cover costs of this action.

Rule 145 governs affidavits of indigence. Tex.R.Civ.P. 145. Subsections (c) and (d) provide that the defendant or the clerk may contest an affidavit that is not accompanied by an IOLTA ³ certificate which explains that the party is represented by an attorney who is providing free legal services without contingency because of the party's indigence and the attorney is providing services either directly or by referral from a program funded by the IOLTA program. Because Uresti averred that he was not being assisted in any way by an attorney, the IOLTA prohibition against contests does not apply.

A hearing on the motion was conducted on March 25, 2010. Gaines announced that she represented the county and that she had filed a contest to the affidavit on behalf of the district clerk's office and anybody interested in court costs. Uresti did not challenge her announcement or otherwise complain that the contest had been filed on behalf of the judges rather than the district clerk.

Uresti then offered his own evidence to the court:

Let the record show that Exhibit 1 of my amended affidavit ⁴ of inability clearly shows that I am receiving government entitlement, therefore the contest is moot.

...

That means a party receiving governmental entitlement based on indigency shall not be required to pay court costs.... The Court must comply with the Texas statutes and the Texas Rules of Civil Procedure Rule 145, otherwise the Court is violating my civil rights under Federal Chapter 42, Section 1983 and denying me my rights to due process, equal rights, and its abuse of discretion would be based on sexual discrimination pertaining to one rules [sic] for attorney and mothers and another discriminating rules [sic] for pro se fathers.

Gaines then responded that the amended affidavit did not affirmatively state that Uresti was receiving food stamps. Instead, “[h]e states I will be applying for government assistance in the form of Medicaid and food stamps because of my indigent state of life.” [Emphasis added]. She also challenged that the exhibit was not incorporated into the affidavit, was not sworn to, and was not proper evidence of indigence. Uresti offered no further evidence and Gaines began cross-examination. Uresti testified that he lived with his mother on McCauley street and denied owning any property on Menefee Boulevard. He admitted inheriting the Menefee property from his father. The will and Order Admitting Will to Probate as Muniment of Title were admitted into evidence without objection. Uresti testified that his current driver's license reflected his address as McCauley but admitted that the former license which had expired July 31, 2009, reflected the Menefee property as his home address. When asked, Uresti claimed he had no idea who resided at 1634 Menefee or whether anyone was living there at all. He admitted selling the home to “Tony something or other.” He did not recall the name, the date of sale, or the sales price.

Q: Now, Mr. Uresti, who pays the property taxes on 1634 Menefee?

A. I don't know, whoever. I guess Tony.

Q: And is Tony related to you?

A: No, he is not.

Q: Who is John Anthony Romo?

A: I have no idea.

Gaines then introduced a child support order entered on July 28, 2009, which indicated Uresti's address as 1634 Menefee.

Uresti later testified that he was not disabled, attended school part-time, had previously worked in construction, but was not currently employed. The previous year he had earned $8,000. He was looking for a job but had only begun exploring employment opportunities two weeks prior. He continued to deny ownership of the Menefee property even after the court admitted a release and waiver of vendor's lien executed by Uresti's mother as lienholder which recited that, “[t]he Lienholder acknowledges that the aforementioned property was deeded to Alan Uresti through the Will and Last Testament of Albert Rene Uresti and this Release and Waiver of Vendor's Lien also applies to Alan Uresti who has completed payment of the ... Note of even date in the principal amount of $15,000....” The trial court then struck the affidavit of inability and ordered Uresti pay the court costs of $612 before proceeding in the case. This requirement is...