Prietov.Alamia

Court of Appeals Fifth District of Texas at DallasJun 7, 2019
No. 05-18-00111-CV (Tex. App. Jun. 7, 2019)

No. 05-18-00111-CV

06-07-2019

ALEJANDRO CASILLAS PRIETO, Appellant v. RICHARD RENE ALAMIA, ET AL., RAFAEL DE LA GARZA, II & (FNU) DE LA GARZA, Appellee


On Appeal from the 416th Judicial District Court Collin County, Texas
Trial Court Cause No. 416-02393-2016

MEMORANDUM OPINION

Before Justices Schenck, Osborne, and Reichek
Opinion by Justice Osborne

Appellant Alejandro Casillas Prieto, an incarcerated federal prisoner, appeals the trial court's take-nothing judgment in favor of appellee, Rafael De La Garza and the trial court's dismissal for want of prosecution against appellee Richard Rene Alamia. Prieto claims that the trial court abused its discretion by conducting the trial in his absence. We affirm the trial court's judgment.

Richard Rene Alamia has not filed a brief in this case. At trial, the trial court stated on the record "Mr. Alamia is not present today and is not represented by counsel either."

Background

Prieto, acting pro se, filed a civil lawsuit claiming legal malpractice, breach of contract, misrepresentation, and fraudulent concealment against Alamia and De La Garza, attorneys Prieto had retained to represent him in a criminal matter in federal court.

At Prieto's request, the lawsuit was set for trial on December 20, 2017. On that day, Prieto was absent from the courtroom. The trial court noted that Prieto was "currently incarcerated in Federal prison." The trial court had the bailiff "call the hall for him anyways just in case." The bailiff reported to the trial court that when he "called the hall" he did not receive a response from Prieto.

The trial court judge stated that it had received correspondence from Prieto "asking several times for appointment of counsel." The trial court denied those motions on the grounds that the lawsuit was a civil matter.

The trial court also stated that "[a]t the end of his final request for appointment of counsel, the first time he has made a request to represent himself and be present at the proceedings." The trial court judge stated that the "letter" was not received until December 11, 2017. The trial court judge further stated that the court had "not received a bench warrant or anything else that would facilitate his (Prieto's) appearance here today." The trial court thereafter found that the case had been "set for trial at his (Prieto's) request, but that he has taken no further action to be present at the proceedings, so we will proceed without him."

After hearing from De La Garza's attorney, the trial court rendered judgment in favor of De La Garza:

There was no evidence presented against Defendant Rafael De La Garza, III. For this reason, the Court finds that Defendant Rafael De La Garza, III is entitled to judgment. Additionally, the Court found that Plaintiff is still in jail and has not

shown actual innocence as required under the law. His conviction has not been overturned. Based on the applicable case law . . . and the lack of evidence on the elements, the Court finds that Defendant Rafael De La Garza, III is entitled to judgment as a matter of law. After considering the evidence, the Court finds that judgment should be entered in favor of Defendant Rafael De La Garza, III, and that Plaintiff shall take nothing.

The trial court further held "because Mr. Alamia is not present, I am going to dismiss the case against him for wont (sic) of prosecution."

The trial court referenced Peeler v. Hughes & Luce, 909 S.W.2d 494, 496-498 (Tex. 1995) (holding that "plaintiffs who have been convicted of a criminal offense may negate the sole proximate cause bar to their claim for legal malpractice in connection with that conviction only if they have been exonerated on direct appeal, through post-conviction relief, or otherwise").

Standard of Review

We review a trial court's decision to allow or deny an incarcerated person the opportunity to personally appear in a self-initiated civil suit under an abuse of discretion standard of review. See In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003); Brewer v. Taylor, 737 S.W.2d 421, 424 (Tex. App.—Dallas 1987, no writ). A trial court abuses its discretion only if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to analyze the law correctly or apply the law correctly to the facts. In re Cerberus Capital Mgmt. L.P., 164 S.W.3d 379, 382 (Tex. 2005).

Analysis

Prieto claims that the trial court abused its discretion by proceeding to trial in his absence, despite the fact that he notified the trial court "by way of letter of his desire to be present at the trial proceedings." The trial court did not construe Prieto's letter as a request for a bench warrant. As the trial judge stated: "the Court ha[s] not received a bench warrant or anything else that would facilitate his (Prieto's) appearance here today." In its written judgment, the trial court further found that Prieto "made no specific attempt to get himself sent from the federal prison to the courthouse" and did not appear at the trial.

District courts have the power to order that an incarcerated person be brought before the court to testify in a civil case. Brewer, 737 S.W.3rd at 424 n. 3; see also TEX. CONST. art. 5, § 8; TEX. CODE CRIM. PROC. ANN. art. 24.13. However, a trial court has no duty to sua sponte issue a bench warrant for an incarcerated person to appear in court. In re Z.L.T., 124 S.W.3d at 166; In re S.K.A., 236 S.W.3d 875, 898 (Tex. App.—Texarkana 2007, no pet.). Rather, the incarcerated person must properly request access to the courts. In re Z.L.T., 124 S.W.3d at 166; In re S.K.A., 236 S.W.3d at 898.

While this order is commonly refer to as an attachment or bench warrant, the order is actually a writ of habeas corpus ad testificandum. Brewer v. Taylor, 737 S.W.2d 421, 424 n. 3 (Tex. App.—Dallas 1987, no writ). --------

In Prieto's "Motion for Appointment of Counsel," Prieto asked "to be present during the proceedings at the court on December 20, 2017." No greater detail or specificity was provided. Prieto argues that his request should be held to a less stringent standard than a pleading drafted by that of a lawyer and construed as a request for a bench warrant. The determination as to whether this request constituted a valid and sufficient request for a bench warrant request is one that lies within the sound discretion of a trial court judge. See Brewer, 737 S.W.3d at 424.

Even if Prieto's communication of his desire to be present at the trial could be construed as a request for a bench warrant, the trial court did not abuse of discretion by denying Prieto's request and proceeding to trial in Prieto's absence.

It is well-established that litigants cannot be denied access to the courts simply because they are incarcerated persons. See Hudson v. Palmer, 468 U.S. 517, 523 (1984); In re Z.L.T., 124 S.W.3d at 165. However, it is also well-established that an incarcerated person does not have an absolute right to appear in person in civil court proceedings. Ringer v. Kimball, 274 S.W.3d 865, 868 (Tex. App.—Fort Worth 2008, no pet.) (holding that an incarcerated person did not have a right to appear in person to prosecute a contract claim against his former attorneys); Brewer, 737 S.W.2d at 423 (holding generally that an incarcerated person's right to access the courts does not entail the right to appear personally); see also Ex parte Cephus, 410 S.W.3d 416, 421 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (holding that an incarcerated person did not have a right to appear at an expunction hearing). The incarcerated person's right of access to the courts must be weighed against the protection of our correctional system's integrity. In re Z.L.T., 124 S.W.3d at 165.

In deciding whether to grant an incarcerated person's request for a bench warrant, Texas courts defer to the test established by the Seventh Circuit in Stone v. Morris, 546 F.2d 730, 735-36 (7th Cir. 1976). In re Z.L.T., 124 S.W.3d at 165. Under that test, courts consider the following when deciding whether to grant an incarcerated person's request for a bench warrant:

(1) the cost and inconvenience of transporting the prisoner to the courtroom;

(2) the security risk the prisoner presents to the court and public;

(3) whether the prisoner's claims are substantial;

(4) whether the matter's resolution can reasonably be delayed until the prisoner's release;

(5) whether the prisoner can and will offer admissible, noncumulative testimony that cannot be effectively presented by deposition, telephone, or some other means;

(6) whether the prisoner's presence is important in judging his demeanor and credibility;

(7) whether the trial is to the court or a jury; and

(8) the prisoner's probability of success on the merits.

Stone
, 546 F.2d at 735-36; In re Z.L.T., 124 S.W.3d at 165-66.

The trial court has no responsibility to independently inquire into the applicability of these factors. In re Z.L.T., 124 S.W.3d at 166; Ringer, 274 S.W.3d at 868. Rather, the burden is on the incarcerated person to establish his right to relief and, if the incarcerated person fails to present sufficient information to the trial court for the trial court to evaluate the bench warrant request under the Stone factors, the trial court does not abuse its discretion in denying the request. In re Z.L.T., 124 S.W.3d at 166; Ringer, 274 S.W.3d at 868; see also TEX. R. CIV. P. 21; TEX. R. APP. P 33.1(a)(1)(A). Though Prieto argues that his letter should be held to a less stringent standard than a pleading drafted by that of a lawyer, the Texas Supreme Court has stated that a litigant's status as a prisoner does not alter his burden. In re Z.L.T., 124 S.W.3d at 166.

Prieto has not satisfied this burden. He failed to specify or provide any reason as to why he is entitled to be physically present at trial. Nothing in the record shows that Prieto attempted to establish why any of the Stone factors entitle him to the relief he requested. Prieto merely informed the trial court that he possessed a "desire to be present for the trial proceedings" without describing why his presence was essential.

A mere desire to be present at a court proceeding is insufficient to entitle an incarcerated prisoner to physically access the court. See In re Z.L.T., 124 S.W.3d at 166 (noting that, although the litigant listed the Stone factors in his request to be present, he failed to provide any factual information showing why his interest in appearing outweighed the impact on the correctional system and thereby did not meet his burden.). When a prisoner fails in his bench warrant request to include information by which the trial court can access the necessity of the prisoner's appearance, the trial court does not abuse its discretion in denying the bench warrant. Id.; Ringer, 274 S.W.3d at 868; see also Johnson v. Oncor Elec. Delivery Co. LLC, 333 S.W.3d 634, 635 (Tex. App.—Dallas 2009, no pet.) (holding that a trial court properly denied a bench warrant request because it did not contain a basis or argument for granting it); Johnson v. Handley, 299 S.W.3d 925, 929 (Tex. App—Dallas 2009, no pet.) (holding that a request for a bench warrant which showed only the fact of a litigant's incarceration and inability to appear was not sufficient to enable a trial court to assess the necessity of an incarcerated person's personal appearance); In re D.D.J., 136 S.W.3d 305, 312 (Tex. App.—Fort Worth 2004, no pet.) (holding that an incarcerated person who merely stated the location of his incarceration and the underlying facts of his marriage did not provide sufficient factual information to enable the trial court to balance the factors to justify his request for a bench warrant to appear at a civil hearing to modify the parent-child relationship).

Here, Prieto failed to demonstrate to the trial court how his request to personally appear at trial outweighed the impact on the correctional system. As a result, Prieto has failed to meet his required burden to submit a valid bench warrant request. Consequently, we conclude the trial court did not abuse its discretion by denying his request and conducting the trial in his absence.

Conclusion

We overrule Prieto's sole issue and affirm the trial court's judgment.

/Leslie Osborne/


LESLIE OSBORNE


JUSTICE 180111F.P05

JUDGMENT

On Appeal from the 416th Judicial District Court, Collin County, Texas
Trial Court Cause No. 416-02393-2016.
Opinion delivered by Justice Osborne. Justices Schenck and Reichek participating.

In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 7th day of June, 2019.