Alex Erazo v. Luis a Sanchez, Chief Medical Director for the Harris County Institute of Forensic Sciences, and Kim Ogg, District Attorney for Harris County, Texas (Formally Devon Anderson) ( 2019 )

Affirmed and Majority and Concurring Opinions filed July 18, 2019.
In The
Fourteenth Court of Appeals
NO. 14-17-00929-CV
ALEX ERAZO, Appellant
V.
LUIS A SANCHEZ, CHIEF MEDICAL DIRECTOR FOR THE HARRIS
COUNTY INSTITUTE OF FORENSIC SCIENCES, AND KIM OGG,
DISTRICT ATTORNEY FOR HARRIS COUNTY, TEXAS (FORMALLY
DEVON ANDERSON), Appellees
On Appeal from the 270th District Court
Harris County, Texas
Trial Court Cause No. 2014-71507
CONCURRING OPINION
I join the court’s judgment, but for the reasons set forth below, I respectfully
disagree with the analysis in the majority opinion.
Complaints on Appeal
Appellant Alex Erazo complains on appeal that the trial court erred in failing
to rule on his various requests for appointment of counsel. He also claims the trial
court erred in failing to appoint counsel to represent him because he is entitled to
appointment of counsel in this civil case. Because Erazo complains of both a
failure to rule on his requests and a failure to appoint counsel, this court should (1)
determine which of the requests the trial court adjudicated, (2) to the extent the
trial court did not rule on some of the requests, determine whether the trial court
erred, and (3) determine if the trial court erred to the extent the court denied some
of the requests.
Requests in the Trial Court
Erazo requested appointment of counsel (1) under Government Code section
24.016 in Erazo’s original petition (“First Request”), (2) under title 28, section
1915(e)(1) of the United States Code in his Motion for Appointment of Counsel
(“Motion for Appointment”), and (3) under no specified authority in his Request
for Court Appointed Counsel (“Second Request”).
The Trial Court’s Rulings
Under the plain text of the October 31, 2017 order, the trial court denied
Erazo’s Motion for Appointment and did not rule on either the First Request or the
Second Request. The trial court observed that it had no authority to appoint
counsel under title 28, section 1915 of the United States Code. The trial court
stated that Erazo had not sought counsel under Government Code section 24.016,
but that Erazo would not be entitled to appointment of counsel under that statute
even if he had sought relief under it.
The trial court ruled on the Motion for Appointment, and thus Erazo’s
contention that the trial court did not do so lacks merit. The trial court correctly
concluded that it lacked authority to appoint counsel under title 28, section 1915 of
2
the United States Code.1
No Preservation, No Error, No Harm
Although the trial court did not rule on the First Request or the Second
Request, the trial court did not err in failing to rule because the record does not
show that Erazo took action to get either of these requests set for hearing or
submission.2 By failing to do so, Erazo failed to preserve his complaint for
appellate review.3 And, even if Erazo had preserved error and the trial court had
erred in failing to rule on one or both of these requests, any such error would be
harmless because the record does not show that this case is a rare or unusual one in
which the public and private interests at stake are such that the administration of
justice is best served by appointing a lawyer to represent an indigent civil litigant.4
/s/ Kem Thompson Frost
Chief Justice
Panel consists of Chief Justice Frost and Justices Bourliot and Poissant. (Bourliot,
J., majority).
1
See 28 U.S.C. § 1915(a)(1), (e)(1).
2
See Watkins v. Krist Law Firm, P.C., No. 14-02-00291-CV, 2003 WL 21786173, at *2 (Tex.
App.—Houston [14th Dist.] Aug. 5, 2003, pet. dism’d) (mem. op.).
3
See id.
4
See Dunsmore v. Ortiz, No. 14-15-00437-CV, 2016 WL 7401893, at *2 (Tex. App.—Houston
[14th Dist.] Dec. 20, 2016, no pet.) (mem. op.).
3