Taylor v. Taylor

• Decision Date: 07 November 2001
• Docket Number: No. 10-00-126-CV,10-00-126-CV
• Citation: 63 S.W.3d 93
• Parties: (Tex.App.-Waco 2001) RICHARD OWEN TAYLOR, Appellant v. VALERIE ANNETTE TAYLOR AND THE ATTORNEY GENERAL OF TEXAS, Appellees
• Court: Texas Court of Appeals

Page 93

63 S.W.3d 93 (Tex.App.-Waco 2001)

RICHARD OWEN TAYLOR, Appellant v. VALERIE ANNETTE TAYLOR AND THE ATTORNEY GENERAL OF TEXAS, Appellees

No. 10-00-126-CV

Court of Appeals of Texas, Waco

November 7, 2001

Rehearing Overruled Nov. 7, 2001

From the 170th District Court McLennan County, Texas Trial Court # 99-2937-4

Before Chief Justice Davis, Justice Vance, and Justice Gray

OPINION

REX D. DAVIS, Chief Justice

Valerie Annette Taylor filed a petition for divorce against her former husband Richard Owen Taylor who is currently incarcerated in the Institutional Division of the Texas Department of Criminal Justice. The Attorney General intervened to enforce an assignment of Valerie's right to child support under chapter 231 of the Family Code. Because Richard was incarcerated, he did not appear for trial. Following a bench trial, the court granted the divorce. The decree names Valerie as sole managing conservator of the Taylors' three children; requires Richard to pay monthly child support following his release from prison; and grants the Attorney General a judgment for retroactive child support.

Richard raises sixteen points of error. He contends in point I-A that the court abused its discretion by denying his request for a jury trial. In point I-B, he argues that the court abused its discretion by denying his request to be bench warranted to McLennan County for trial. Because these points present error requiring reversal, we will not address the remainder of Richard's points.

BACKGROUND

The Taylors married in May 1994. Their son was born in October 1995. Their twin daughters were born in January 1997. Richard was arrested on a capital murder charge in August 1997. He subsequently pleaded guilty in exchange for a forty-year sentence.¹

Valerie filed her divorce petition in September 1999. The Attorney General filed his plea in intervention one month later. Richard answered the petition on October 28, two days after the Attorney General intervened. On the same date, Richard filed a motion for jury trial and a motion for discovery. Richard accompanied his jury request with a "Declaration of Inability to Pay Cost" which reads as follows:

(The following is made pursuant to the Texas Rules of Civil Procedure and Title 6, Chapter 132 of the Civil Practices and Remedies Code.) Now respectfully comes, Richard Taylor, TDCJ #816002, and declares that I am unable to pay the filing fee in this civil action and requests leave of the court to proceed in forma pauperis in this accompanying civil action and would show the court the following

(1.) I am presently incarcerated in the Sanchez S.J. Unit of the Texas Department of Criminal Justice where I am not permitted to earn or handle money.

(2.) I have no source of income or spousal income.

(3.) I currently have $0.00 credited to me in the inmate trust fund.

(4.) During my incarceration in the Texas Department of Criminal Justice, I have received approximately $10.00 per month as gifts from relatives and friends.

(5.) I neither own nor have an interest in any realty, stocks, bonds or bank accounts and receive no interest or dividend income from any source.

(6.) I have 0 dependents.

(7.) I have total debts of approximately $6,500.00.

(8.) I owe $0.00 as restitution.

(9.) My monthly expenses are approximately $10.00.

The court signed an order denying Richard's jury trial motion on November 12.

The court set the matter for bench trial on January 7, 2000. Richard filed a pleading on December 14, 1999 asking the court to reschedule the trial and issue a bench warrant so he could appear for trial. This pleading reads as follows:

REQUEST FOR RESET OF FINAL HEARING

NOW respectfully comes, Richard Owen Taylor, defendant in the above styled and numbered cause, and respectfully request that this Honorable court reset the final hearing date that is scheduled for the 7th day of January, 2000, at 9:00 a.m., to afford Defendant adiquate [sic] time to prepare his defense. Defendant further requests that this Honorable Court Order the Issuance of a Bench Warrant to ensure Defendant's presence at such hearing, that he may present his Defense in open court. Defendant is currently confined at the Sanchez State Jail Unit of the T.D.C.J.-I.D. and will be unable to appear at such hearing of his own violition. [sic]

The case proceeded to trial on January 7. Richard did not appear. The court signed the decree on February 18. The decree recites that Richard "failed to appear and wholly made default" and that "[a] jury was waived."

STANDARD OF REVIEW

Richard did not appear for trial. He filed his notice of appeal more than thirty days after the court signed the judgment. Accordingly, we have treated this as a restricted appeal.² See Tex. R. App. P. 30; Cotton v. Cotton, 57 S.W.3d 506, 509 (Tex. App.--Waco Aug. 22, 2001, no pet. h.).

The restricted appeal replaced the former writ of error practice when the Supreme Court adopted the current appellate rules in 1997.³ See Tex. R. App. P. 30 cmt.; Norman Communications v. Texas Eastman Co., 955 S.W.2d 269, 270 n.1 (Tex. 1997) (per curiam); Hollister v. Palmer Indep. Sch. Dist., 958 S.W.2d 956, 958 n.1 (Tex. App.--Waco 1998, no pet.). In a restricted appeal, "the error complained of must be apparent from the face of the record." Osteen v. Osteen, 38 S.W.3d 809, 812 (Tex. App.--Houston [14th Dist.] 2001, no pet.); accord Norman Communications, 955 S.W.2d at 270 (writ of error); Bird v. First Deposit Nat'l Bank, 994 S.W.2d 280, 281 (Tex. App.--El Paso 1999, pet. denied) (restricted appeal); Laidlaw Waste Sys., Inc. v. Wallace, 944 S.W.2d 72, 73 (Tex. App.--Waco 1997, writ denied) (writ of error).

A restricted appeal provides a peculiar scope of review. Regarding this scope of review, the Supreme Court has said:

Review by [restricted appeal] affords an appellant the same scope of review as an ordinary appeal, that is, a review of the entire case. See Gunn v. Cavanaugh, 391 S.W.2d 723, 724 (Tex. 1965). The only restriction on the scope of . . . review is that the error must appear on the face of the record. See General Elec. Co. v. Falcon Ridge Apartments, 811 S.W.2d 942, 943 (Tex. 1991).

Norman Communications, 955 S.W.2d at 270; accord Mabon Ltd. v. Afri-Carib Enters., Inc., 29 S.W.3d 291, 299 (Tex. App.--Houston [14th Dist.] 2000, no pet.); In re E.K.N., 24 S.W.3d 586, 590 (Tex. App.--Fort Worth 2000, no pet.). We review Richard's points bearing these principles in mind.

RIGHT TO APPEAR

Richard argues in point I-B that the court abused its discretion and violated his right to due process of law by refusing his request to be bench warranted to McLennan County for his trial. Valerie questions whether Richard made a sufficient request for a bench warrant because his request is "[i]n the middle of the request for a reset." The Attorney General contends that he did not provide sufficient justification for his request to personally appear.

In a prior, related proceeding, we discussed at length the law pertinent to a prisoner's constitutional right of access to the courts. See In re Taylor, 28 S.W.3d 240, 249 (Tex. App.--Waco 2000, orig. proceeding); see also In re Taylor, 39 S.W.3d 406, 412 (Tex. App.--Waco 2001, orig. proceeding).⁴ We observed:

"A prisoner in Texas has a constitutional right of access to the courts, but only a qualified right to appear personally at a civil proceeding." Texas courts have followed the lead of the federal courts in identifying pertinent factors to be considered in deciding whether an inmate should be permitted to personally appear.

These factors 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.

Taylor, 28 S.W.3d at 249 (citations omitted); accord Dodd v. Dodd, 17 S.W.3d 714, 717-18 (Tex. App.--Houston [1st Dist.] 2000, no pet.); Byrd v. Attorney General, 877 S.W.2d 566, 569 (Tex. App.--Beaumont 1994, no writ).

In addition to the eight factors we listed in Taylor, courts have attached some importance to whether the prisoner initiated the lawsuit. See Dodd, 17 S.W.3d at 717-18; Armstrong v. Randle, 881 S.W.2d 53, 57-58 (Tex. App.--Texarkana 1994, writ denied); Pruske v. Dempsey, 821 S.W.2d 687, 689 (Tex. App.--San Antonio 1991, no writ). It appears that a prisoner's status as a defendant weighs in his favor on the issue of his right to personally appear at trial. Id. However, an inmate's status as a defendant standing alone will not generally suffice to establish his right to appear. Id. Conversely, the fact that the inmate is the plaintiff will not necessarily preclude his right to personally appear. See Armstrong, 881 S.W.2d at 58; Nichols v. Martin, 776 S.W.2d 621, 623 (Tex. App.--Tyler 1989, no writ).

We further observed in Taylor:

Should the trial court determine after considering these factors that the prisoner is not entitled to appear personally, then the court should permit him "to proceed by affidavit, deposition, telephone, or other effective means."

A trial court's refusal to consider and rule upon a prisoner's request to appear in a civil proceeding personally or by other means constitutes an abuse of discretion.

Taylor, 28 S.W.3d at 249 (citations omitted); accord Dodd, 17 S.W.3d at 717-18; Byrd, 877 S.W.2d at 569.

In his reset request, Richard plainly requested that the court issue a bench warrant so he could present his...