Travis Arthur Brown v. Erica Lynn Foster ( 2005 )

Opinion Issued July 21, 2005

In The

Court of Appeals

For The

First District of Texas

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NO. 01-04-00482-CV

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TRAVIS ARTHUR BROWN, Appellant

V.

ERICA LYNN FOSTER, Appellee

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On Appeal from the 257th District Court

Harris County, Texas

Trial Court Cause No. 2003-07248

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MEMORANDUM OPINION

          Appellant, Travis Arthur Brown, an inmate appearing pro se, appeals from the trial court’s final order in a suit affecting the parent-child relationship. We determine whether the trial court abused its discretion in failing to make an express ruling on appellant’s motion to participate by telephone and in denying appellant’s request to participate at trial by telephone. We affirm.

Factual and Procedural Background  

            Appellant filed an original suit affecting the parent-child relationship between himself and one minor child, Ethan Tyler Brown. In his petition, appellant alleged that he was the natural father of the child and requested that he be named possessory conservator and that the child’s mother be named managing conservator. Appellant also requested visitation rights with the child. Appellant filed a notice of desire to testify and motion for hearing by telephone conference call. The record does not reflect an explicit ruling on appellant’s request, but the trial court proceeded to trial without appellant’s participation by telephone. However, the court did allow appellant to file an affidavit.

          The case was called to trial on November 17, 2003. Appellant participated by his affidavit and pleadings on file, but did not participate by telephone. Appellee testified that appellant was the natural father of her child. However, appellee testified that she had moved with her children and fiancé to Virginia and that she believed visitation with appellant at prison would not be in the best interest of her child. On that day, the trial court entered an order adjudicating appellant as the biological father of Ethan Tyler Brown, but denied appellant’s request to be named possessory conservator or to have access to the child.Access to Court

          Appellant contends that the trial court erred by failing to address his request to participate at trial by telephone and by failing to balance the interests of the State with his right of access to the courts.

          In this case, the trial court proceeded to trial without ruling expressly on appellant’s request to participate by telephone. Consistent with rule 33.1(a)(2)’s language, the Supreme Court has recognized that an implicit ruling may be sufficient to present an issue for appellate review. In the Interest of Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003); see Lenz v. Lenz, 79 S.W.3d 10, 13 (Tex. 2002). By proceeding to trial without making an express ruling on appellant’s request to participate by telephone, it is clear that the trial court implicitly denied appellant’s request. The trial court did not err in failing to rule expressly on appellant’s motions, and we review the court’s ruling for abuse of discretion. In the Interest of Z.L.T., 124 S.W.3d at 165; In re J.D.C., No. 12-03-00262-CV, 2005 WL 110342 at *1 (Tex. App.—Tyler Jan. 19, 2005, no pet.).   

          It is well-established that litigants cannot be denied access to the courts simply because they are inmates. See Hudson v. Palmer, 468 U.S. 517, 523, 104 S. Ct. 3194, 3198 (1984). However, an inmate does not have an absolute right to appear in person in every court proceeding. In re Z.L.T., 124 S.W.3d at 165. Instead, the inmate’s right of access to the courts must be weighed against the protection of our correctional system’s integrity. Id. If a trial court refuses to grant an inmate’s request for a bench warrant, the trial court should allow the inmate to proceed by affidavit, deposition, telephone, or other effective means. In re Taylor, 28 S.W.3d 240, 249 (Tex. App.—Waco 2000, no pet.) (quoting Byrd v. Attorney Gen., 877 S.W.2d 566, 569 (Tex. App.—Beaumont 1994, no writ), overruled on other grounds, 124 S.W.3d 163 (Tex. 2003)).

          In essence, appellant contends that the trial court failed to balance his interests and those of the State by refusing to allow him to participate at trial by telephone conference call. Appellant contends that his inability to participate deprived him of the opportunity to present evidence or to contradict evidence presented by appellee.

          The record reflects that appellant filed a notice of desire to testify and motion for hearing by conference call as well as a motion for appointment of an attorney ad litem. Appellant also filed a response to appellee’s amended answer and counterclaim, in which he renewed his motion to participate at trial by telephone. The only indication that the trial court had considered appellant’s request to participate by telephone is the trial court’s statement that appellant wished to participate by conference call, and a question to appellee, “Is there any reason not to do that?” Appellee responded that she did not object to appellant’s participation by telephone. The record does not reflect why the trial court did not allow participation by teleconference.

          Here, the trial court implicitly denied appellant’s requests to participate by teleconference at trial, but accommodated appellant’s desire to participate in the proceeding by allowing the submission of his personal affidavit. In appellant’s affidavit, he averred that he had cared for his child in the past, that he questioned the suitability of one of his child’s caregivers, and that he believed that contact with his son was vital, among other things. Appellant’s affidavit allowed him to present evidence and to contradict evidence presented by appellee. Thus, appellant was properly afforded an effective means of participation, other than teleconference, by the trial court. See In re D.D.J., 136 S.W.3d 305, 314 (Tex. App.—Fort Worth 2004, no pet.) (holding that if court finds that inmate in civil action is not entitled to leave to appear personally, then prisoner should be allowed to proceed by affidavit, deposition, telephone, or other effective means); Birdo v. Holbrook, 775 S.W.2d 411, 414 (Tex. App.—Fort Worth 1989, writ denied). We conclude that the trial court did not abuse its discretion in denying appellant the opportunity to participate at trial by telephone when the court allowed appellant to participate by affidavit, an effective alternative means to a personal appearance.

          We overrule appellant’s sole issue.

  Conclusion  

          We affirm the judgment of the trial court.

                                                             Tim Taft

                                                             Justice

Panel consists of Justices Taft, Alcala, and Higley.