In the Interest of Z.A.T. , 2006 Tex. App. LEXIS 2783 ( 2006 )

TOM GRAY, Chief Justice,

concurring.

The Court issued an opinion reversing this case on November 16, 2005. I dissented to that opinion. The Court’s opinion was withdrawn in an order dated January 11, 2006. I now withdraw my dissenting opinion dated November 16, 2005 and substitute this concurring opinion in its place.

Justices Vance and Reyna initially failed, and now fail on rehearing, to address why the merits of Richard’s point on appeal should be addressed at all. The only reason I discussed the ability to subpoena a child witness in my dissenting opinion is because the majority framed the issue upon which the case was being reversed as the trial court’s refusal to allow Richard’s children to testify, treating the issue as though the children were before the trial court when they were not. The problem is that issue is not what was presented to the trial court, nor is it the issue presented to this Court for disposition.

While I can now concur with the result, because the judgment of the trial court is not being reversed on this issue, I write this concurring opinion to address Richard’s second issue on appeal, the one he actually presents, to note the unusual procedure leading to the new result and the method described by the trial court regarding the compelled attendance of a child witness as a possible alternative to issuing a subpoena directly upon a child witness, but which must be used with caution. I will address these issues in reverse order. I will then address certain additional aspects of the dissenting opinion.

Motion for Rehearing Filed by the Trial Court

In a very unusual procedure, the trial court filed a document titled “Request for Reconsideration of Memorandum Opinion” after a majority of this Court had originally reversed the trial court upon the basis that the trial court had refused to permit the children, the subject of the suit, to testify. The relevant portion of the text of the trial court’s request is as follows:

This [Trial] Court does not participate in compelling witnesses to attend hearings unless they have first been subpoenaed to attend and then have refused to honor the subpoena.

Children, through their parents or guardians, are regularly subpoenaed to attend family law matters in this [Trial] Court. If the parent shows up without the child, this [Trial] Court sends them to get the child.

In this case, the [Trial] Court absolutely did not refuse to permit the children to testify, and exception is taken to that ruling. This [Trial] Court knows full well that a competent child witness is entitled to testify — that wasn’t the issue here. The issue between Mr. Taylor and the [Trial] Court was him wanting the [Trial] Court to require the children’s attendance without them first being subpoenaed through their mother. Mr. Taylor made no showing or claim in his Motion requesting the “children’s attendance at trial” that the mother had not or would not honor a properly issued subpoena, (emphasis in original)

While I believe we engage in setting a dangerous precedent by responding to a trial court that has been reversed when the trial court files what is essentially a motion for rehearing, I note that it was, in this case, effective. I also note that the “motion” was verified and that it was properly served on all parties to the proceeding.

While I argued in my original dissenting opinion the majority’s original discussion and disposition was erroneous based upon the ability to subpoena witnesses in a civil proceeding, which is now the basis for the lead opinion by Justice Reyna, I note that the procedure outlined by the trial court in its “motion” would be much less traumatic for the children by use of a procedure that would have the effect of compelling the person in possession of a child to bring the child to court. It operates much like a subpoena duces tecum, except that rather than the production of documents, the subpoena requires the parent or guardian that is subpoenaed to bring a child witness with them and appear in court. As the Amarillo Court recently acknowledged, there are not rules that cover every situation that may arise in the course of a legal proceeding. In re Myers, No. 07-06-0050-CV, 2006 WL 305033, 2006 Tex.App. LEXIS 1128 (Tex.App.-Amarillo, Feb. 9, 2006, no pet. h.). That is precisely why trial courts are invested with inherent authority and ample discretion to conduct their court’s business. As the court stated:

[A] trial court has great discretion over the conduct of a trial.... And, the burden lay with Myers to prove that it clearly abused that discretion before mandamus can issue.... This burden is met by showing that the trial court acted unreasonably, arbitrarily, or without reference to guiding principles.... [W]e cannot say that the trial court’s decision lacked reason.... In sum, the procedure of the trial court may be unique, but we cannot say that it exceeds the vast discretion given such bodies in conducting trials. Ever increasing docket loads should stimulate the adoption of creative procedures for speedily addressing disputes. And, we hesitate to interfere with the exercise of those creative efforts so long as they comport with lawful discretion. Because that adopted here does, we deny the petition for writ of mandamus.

Id. at *1, 2, 2006 Tex.App. LEXIS 1128 at *2-4, 6.

In footnote 9 in the dissenting opinion, Justice Vance criticizes the trial court’s procedure because the trial court did not notify Richard of it and criticizes me for not explaining why Richard’s motion was deficient or inadequate. As noted in the lead opinion, a similar procedure is utilized in the Code of Criminal Procedure and the Juvenile Justice Code. Tex.Code Crim. Peoc. ANN. art. 24.011(a) (Vernon Supp. 2005); Tex. Fam.Code ANN. § 53.06(c) (Vernon 2002). The trial court was doing what any good judge does under the common law — looks for the law applicable to similar fact patterns and applies it to the situation presented. This is the same thing that litigants should do. And the issue is not whether Richard’s motion is deficient or inadequate; the issue is whether Richard has shown on appeal that the trial court abused its discretion by denying Richard’s motion. Our job on appeal is not to review the sufficiency of the motion. Our job, when an issue is properly raised in the appeal, is to review the trial court’s ruling on the motion. And it is not the trial court’s, or for that matter this Court’s, job to practice law on behalf of litigants who are representing themselves at trial or on appeal. I will note, however, that anything less than compliance with the rules regarding the procedure for subpoenaing a witness as discussed in the lead opinion, including the attempt to use this particular trial court’s procedure in another court, may not preserve any issue regarding the failure of a witness to appear.

The rules of civil procedure specify the manner in which a witness in a civil proceeding can be subpoenaed. Tex.R. Civ. P. 176. There is no special procedure for a witness who is a minor. And if these children had continued to be represented by their own counsel, as they were briefly earlier in this extended proceeding, the subpoenas could have been served on their attorney, rather than them individually. Tex.R. Civ. P. 176.5(a).

The dissenting opinion is dismissive of the advisability and ability to subpoena a child witness. Specifically, Justice Vance states that he seriously doubts whether minors have the legal capacity to be served with a subpoena. I, on the other hand, have no doubts that a minor can be served with a witness subpoena in a civil proceeding. I do not believe it is an issue of capacity.

For over 125 years, it has been the law of this State that you can personally serve a minor with a citation to make them a party to a proceeding. “The Courts of this State have always recognized the necessity for personal service upon a minor. In Wheeler v. Ahrenbeak, 54 Tex. 535 (1881), the Court pointed out the necessity of complying with a statutory requirement for service upon a defendant and concluded that such right could not be waived by a minor....” In re M.W., 523 S.W.2d 513, 514 (Tex.Civ.App.-El Paso 1975, no writ).¹ I see no reason to distinguish the ability to serve a minor with a citation for service of process from the ability to serve a minor with a subpoena to appear as a witness. Thus, it may be that the trial court’s alternative method will work in any given case, and for some of the reasons noted, a practitioner may want to try an alternative procedure first. But the more careful practitioner, in order to preserve an issue for appeal regarding an absent witness, will want to strictly comply with the rule regarding subpoenaing a witness, just in case the trial court declines to use any alternative procedure.

Richard’s Second Issue on Appeal

But as I also stated in my original dissenting opinion, the actual issue in this appeal is not about whether or not the trial court erred by refusing to allow Richard’s children to testify at the modification hearing.

The issue Richard actually presents in his brief is as follows: “Whether the trial court erred in denying to hold a qualification hearing and require Appellee to ensure the children were present to testify at trial.” Justice Reyna now addresses this issue and issue three with it in the lead opinion. The third issue is: ‘Whether excluding testimony of the children violated the due process of both United States and Texas Constitutions.”

The problem is, as presented on appeal, these issues are not what was presented to the trial court. For example, the children were never presented for a qualification hearing; accordingly, the trial court did not err in not interviewing or qualifying the children to testify. Richard’s issues on appeal are broader than the issue presented to the trial court. To the extent the issues are broader, they do not comport with the issue presented and decided by the trial court. Accordingly, to that extent, they present nothing for review.

This leaves us with only one ruling made by the trial court that is arguably challenged by Richard on appeal.

Analysis of Issue Two

Under his second issue, quoted above, Richard presents some argument that the trial court erred when it denied his motion to compel Valerie to bring the children to trial so that they could testify. I will address this argument as a sub-issue under a liberal reading of his second issue and his brief.

Because no bill of exception was made as to what the testimony of the children would have been, or even as to what Richard thought it would be, Richard did not preserve error based upon the denial of his motion resulting in the absence of a witness. Neither did Richard request a continuance of the hearing so that he could secure the testimony of an absent witness. Richard has thus failed to preserve this issue for review and is unable to show harm as a result of the error, if any. We, therefore, should not address the merits of his second issue.

But if we were to reach the merits of the issue, I note that Richard’s motion was not a common or routine motion. He sought to compel his ex-wife, by way of a motion, to bring his children to court for the purpose of having them testify. The trial court denied Richard’s motion.

When we are dealing with novel areas of trial court procedure, the trial court has to have wide discretion in dealing with those issues. In re Myers, No. 07-06-0050-CV, 2006 WL 305033, ⅜2, 2006 Tex.App. LEXIS 1128, *6 (Tex.App.-Amarillo, Feb. 9, 2006, no. pet.h.). As discussed above, the trial court uses a procedure in this situation that is authorized by statute for seeur-ing the testimony of a child witness in a similar circumstance. The record indicates Richard knew how to subpoena a witness, but he failed to take any action to subpoena the children directly or to subpoena the mother and have her bring the children in her custody to court to give testimony. Based upon the existence of procedures to compel the attendance of witnesses and the existence of similar procedures to compel the attendance of child witnesses, that Richard did not use, we cannot conclude that the trial court acted without reference to guiding principles. Id. The trial court did not abuse its discretion by refusing to make Valerie bring the children to testify in response to Richard’s motion.

Response to the Dissent²

The dissenting opinion of Justice Vance reveals two, or possibly three, philosophical differences between Justice Vance and me. I could spend a lot of time explaining and documenting these differences for they have been revealed in many opinions, but in this concurring opinion, I believe it is adequate to simply mention them. The first philosophical difference is who has the burden to show error in an appeal. I believe it is upon the appellant. Richard has not shown trial court error. He has, at best, shown an alternative procedure that the trial court rejected. The second philosophical difference is whether it is appropriate for an appellate court justice to re-lawyer a case for a party, particularly by making arguments for a party which the party did not make in their brief, as a basis for reversing a trial court’s decision. I believe it is not the proper role of an appellate judge to re-lawyer a case for a litigant — this causes an imbalance in our advocacy system. A possible third difference that seems to be indicated is whether pro se litigants have a different burden or standard to meet than parties represented by counsel; in particular, is the standard for preservation lower for litigants that are representing themselves? I believe it is the same standard for all parties.

The first paragraph of the dissenting opinion suggests we have to explain why Richard’s motion is inadequate. As stated above, that is not the issue, so we should not waste our time with it. The issue is whether the trial court erred in denying the motion, not the adequacy of the motion.

The third paragraph of the dissenting opinion attempts to change the issue, which is what happened in the original majority opinion. Note the attempt to shift the issue from whether the trial court erred in denying the motion to compel Valerie to bring the children, to the issue of the propriety of excluding child witnesses. Child witnesses were not presented. Child witnesses were not excluded.

The fourth and fifth paragraphs of the dissenting opinion attempt to evade the consequences of Richard’s failure to show what the testimony would have been and excuse his failure to take any other action to secure the testimony of the children.

The fifth paragraph of the dissenting opinion also attempts to redefine what constitutes a subpoena. The sixth paragraph finds probable harm by again excusing Richard’s failure to “make a formal offer of proof.”

It is clear that what the dissent would have done as the trial court judge is to grant Richard’s motion. That probably would not have been error. But we are not the trial court; and our opinions should focus on the legal issues which are properly presented. Our opinions frequently do not reflect what we would have done if we were the trial court. Our task must remain to conduct a review of what the trial court did, and decide if, under the applicable legal standard, the trial court committed harmful error.

Final Conclusion

The trial court never denied Richard the opportunity to present his children as witnesses as he argues on appeal. Further, the trial court did not abuse its discretion by denying Richard’s motion to compel Valerie to bring the children to court. The court simply denied Richard’s request to make Valerie bring the children to the hearing without the issuance of a subpoena. I concur in only the judgment of this Court which affirms the trial court’s judgment.

1 . See also Wright v. Jones, 52 S.W.2d 247, 251 (Tex.Comm.App.1932, holding approved) (“When an infant is made a party to an action, he must be served with process.”); In re Estate of Bean, 120 S.W.3d 914, 920 & 921 (Tex.App.-Texarkana 2003, no pet.) ("They contend personal service on the minor was not necessary because his father appeared as next friend and as guardian ad litem.... We sustain Shore’s contention that the failure to personally serve citation on Brenham Shore [a minor] deprived the trial court of jurisdiction to enter the declaratory judgment.”); Uehlinger v. State, 387 S.W.2d 427, 430 (Tex.Civ.App.-Corpus Christi 1965, writ ref'd n.r.e.) ("The minors herein were named as individual defendants along with their guardian but were not served with citation in the County Court trial.... The guardian ad litem was not authorized in such capacity to waive citation of service on the minors after the matter became a case in the County Court pursuant to the State's appeal.... Unless jurisdiction of the individual wards had been acquired by proper service of citation (which could not be waived under the conditions prevailing here) the court had no authority to appoint a guardian ad litem or to proceed to trial as to the minors.”); Ellis v. Stewart, 24 S.W. 585, 587 (Tex.Civ.App.1893) ("There was no service of citation on the minor defendants, which renders the judgment against them a nullity.”).

2 . In footnote 11, Justice Vance states he will not address what he apparently believes are personal comments about him in this opinion. It is my intent to be critical of his legal analysis in this case and in other cases over the past seven years of working with him. These are not intended as what are normally characterized as personal comments. He may consider them personal, depending upon how closely he holds his view on the rules of law he espouses in his opinions, but the criticism is of his legal analysis — not him personally. If I could get him to communicate, exchange, and refine the analysis as much in other cases as we have in this one, I truly believe the ultimate winners would be the citizens of Texas by a thorough venting of all the relevant aspects on important issues. The opinions in this case frame the issue and probe a number of problems. Justice Vance's legal analysis in the dissenting opinion is much better explained and supported with legal authorities than was his original analysis in what was the original majority opinion of the Court. I take partial credit for that improvement due to the number of rounds of critical analysis and rewrites through which his dissenting opinion has gone. It is not personal, it is what good judges do for each other. Whether they agree or disagree, as long as each judge is working for a better product — it is a win/win situation for the judges and the citizens of Texas. [See Proverbs 27:17 (The NIV Study Bible): "As iron sharpens iron, so one man sharpens another.”] For this reason, I can thank Justice Vance for making me a better servant for the people of Texas.