Justice Seymore writes separately in termination appeal to express concern about denying jail inmates access to court in proceedings to terminate their rights.
Inmate at issue in case waived procedural rights by counsel's failure to object and preserve error for appeal. Bench warrant was issued for final hearing, but could not be executed because inmate had been transferred. Oral motion for trial continuance to allow inmate to appear at a later date held insufficient.
C O N C U R R I N G
M E M O R A N D U M O P I N I O N
I concur with majority's conclusion that Orosco failed to preserve error for appellate review. However, I do not lightly join in a disposition upholding the trial court's order terminating parental rights.
Accordingly, I write separately to address implicit denial of Orosco's access to the court while incarcerated.
It is my considered opinion that our courts should exercise great caution to protect the rights of the incarcerated when conducting a civil proceeding that involves termination of parental rights. Litigants should not be denied access to the courts simply because they are incarcerated. In re Z.L.T., 124 S.W.3d 163, 165-166 (Tex. 2003).
However, an inmate does not have the absolute right to appear in person in every court proceeding. Id. Trial courts should consider a number of factors when deciding whether to grant an inmate's request for a bench warrant, including:(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. Id.
Our rules place the burden on litigants to identify with sufficient specificity the grounds for the ruling they seek. Id. Since a prisoner has no absolute right to be present in a civil action, the prisoner requesting a bench warrant must justify the need for his presence. Id. Orosco argues that his appearance in court "would neither have hindered nor burdened the daily operations of the court." Orosco fails to address all of the above factors or point this court to portions of the record which might support an argument that the trial court violated his fundamental right to participate in proceedings which could result in termination of parental rights.
Accordingly, I concur with the majority's conclusion that the trial court did not abuse its discretion by refusing to grant Orosco's motion for continuance.
/s/ Charles W. Seymore
Judgment rendered and Majority and Concurring Memorandum Opinions filed June 26, 2008.Panel consists of Justices Fowler, Frost, and Seymore. (Frost, J., majority).
In the Interest of TDN, No. 14-07-00387-CV (Tex.App.- Houston [14th Dist] June 26, 2008)(Frost) (termination of parental rights, oral motion for continuance deficient, error not preserved)
Before Justices Fowler, Frost and Seymore
In the Interest of T.D.N.
Appeal from 313th District Court of Harris County
Concurring Opinion by Justice Seymore