In the Interest of Z.L.T. , 82 S.W.3d 100 ( 2002 )

Opinion by

PHIL HARDBERGER, Chief Justice.

This appeal is from an order establishing the parent-child relationship between the appellant and three minor children. Appellant raises three issues in his brief, contending the trial court erred by: (1) failing to give appellant notice of the hearing; (2) failing to ensure that a reporter’s record was made of the proceedings; and (8) failing to consider and rule on appellant’s application for writ of habe-as corpus ad testificandum, requesting that appellant be permitted to personally appear at all hearings. On its own motion, this court voted to consider the case en banc. See Tex.R.App. P. 41.2(c). The en banc court concludes that the trial court erred in failing to consider and rule on appellant’s application for writ of habe-as corpus ad testificandum. Accordingly, we reverse the trial court’s judgment and remand the cause to the trial court for further proceedings consistent with this opinion. Because appellant’s other issues are not necessary to the final disposition of the appeal, we do not address them. See Tex.R.App. P. 47.1.

BACKGROUND

The Attorney General of Texas filed a petition to establish the parent-child relationship to three minor children, naming the appellant as the father of the children. The appellant, who was incarcerated, filed an application for writ of habeas corpus ad testificandum, requesting that he be permitted to personally appear at all hearings. The record does not reflect that the trial court considered or ruled on appellant’s application. After a hearing, the trial court entered an order establishing the parent-child relationship, ordering appellant to pay current and retroactive child support, and setting visitation.

Discussion

Individuals who are incarcerated do not automatically lose their fundamental constitutional right to court access as a result of their incarcerated status. Zuniga v. Zuniga, 13 S.W.3d 798, 801 (Tex.App.-San Antonio 1999, no pet.). However, incarcerated individuals, whether they are defendants or plaintiffs in civil actions, do not have an absolute right to appear in person. Zuniga v. Zuniga, 13 S.W.3d at 801; Pruske v. Dempsey, 821 S.W.2d 687, 689 (Tex.App.-San Antonio 1991, no writ). In situations in which an incarcerated individual has requested to be present at hearings, Texas courts require the trial court to directly address the issue “by weighing the protection of the integrity of the correctional system against the prisoner’s right of access to the courts and strike a balance that is fundamentally fair.” Pruske, 821 S.W.2d at 689; see, e.g., Jones v. Jones, 64 S.W.3d 206, 211-12 (Tex.App.-El Paso 2001, no pet. h.); Taylor v. Taylor, 63 S.W.3d 93, 97 (Tex.App.-Waco 2001, no pet.); Dodd v. Dodd, 17 S.W.3d 714, 718 (Tex.App.-Houston [1st Dist.] 2000, no pet.); Byrd v. Attorney General, 877 S.W.2d 566, 569 (Tex.App.-Beaumont 1994, no writ); Nichols v. Martin, 776 S.W.2d 621, 623 (Tex.App.-Tyler 1989, orig. proceeding); Birdo v. Holbrook, 775 S.W.2d 411, 414 (Tex.App.-Fort Worth 1989, writ denied). Some of the factors the trial court may consider are:

a. the cost and inconvenience of transporting the prisoner between his place of incarceration and the courtroom;

b. the security risk and potential danger to the court and public of allowing the prisoner to attend court;

c. whether the prisoner’s claims are substantial;

d. whether a determination of the matter can reasonably be delayed until the prisoner is released;

e. whether the prisoner can and will offer admissible, noncumulative testimony which cannot be offered effectively by deposition, telephone, or otherwise;

f. whether the prisoner’s presence is important in judging his demeanor and credibility compared with that of other witnesses;

g. whether the trial is to the court or to a jury; and

h. the prisoner’s probability of success on the merits.

Pruske, 821 S.W.2d at 689. In this ease, the trial court abused its discretion by failing to directly address the appellant’s request to appear in person and to strike a balance that is fundamentally fair. Id.

The Attorney General requests that we reconsider our prior decisions and hold that the trial court’s duty to weigh the issue is not triggered unless the inmate has provided sufficient information to the court. The Attorney General further argues that we should imply from a silent record that the trial court considered the request.

Requiring the inmate to provide information regarding each of the factors the trial court may consider would not appear to be of much assistance to the trial court in undertaking the balancing. See id. (listing factors trial court may consider). The majority of the factors require subjective determinations by the trial court in view of the nature of the underlying litigation and the nature of the requesting party’s history. If the trial court needed additional information regarding these factors, the trial court could seek the information in considering the request.

In addition, each of the Attorney General’s arguments appears to ignore the reason the trial court is required to undertake a balancing in considering such a request. The trial court is required to undertake this balancing to protect an inmate’s fundamental constitutional right to court access. If we adopt an approach that assumes the trial court engaged in this balancing despite a silent record, and the trial court in reality failed to consider the controlling factors, the trial court has effectively deprived an inmate of his constitutional rights without any consideration. For these reasons, we reject the attorney general’s arguments and hold that the record must expressly reflect that the trial court addressed the inmate’s request to appear. See Jones v. Jones, 64 S.W.3d at 211-12 (noting record did not demonstrate that trial court balanced the need to appear); Taylor v. Taylor, 63 S.W.3d at 97-98 (rejecting attorney general’s argument that request did not provide sufficient justification for presence); Dodd v. Dodd, 17 S.W.3d at 718 (noting record did not reflect that the trial court addressed request to be present and holding trial court should have “(1) made findings as to the need for [appellant’s] presence in light of the issues raised by appellant’s pro se defendant status, and (2) determined alternate means for him to present and respond to evidence”); Byrd v. Attorney General, 877 S.W.2d at 569 (record failed to reflect if trial court ruled on request); Nichols v. Martin, 776 S.W.2d at 623 (concluding trial court must make the pertinent inquiries when request is made).

Finally, the Attorney General argues that we should not require the trial court to consider an inmate’s request unless the inmate proffers alternative forms of participation. However, alternative means of access is included in the factors the trial court may consider. Zuniga, 13 S.W.3d at 801 (noting trial court could have afforded alternative means of access if it concluded that presence was unnecessary). The inmate is requesting to personally appear. In addressing this request, the trial court has the discretion to consider whether alternative forms of participation would satisfy the inmate’s right to court access. Alternative forms of access is not something that the inmate must proffer because the consideration of alternative access is within the trial court’s discretion.

Conclusion

The trial court abused its discretion in failing to directly address the appellant’s request to be present at all hearings. The trial courts’ judgment is reversed, and the cause is remanded to the trial court for further proceedings consistent with this opinion.