      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                      NO. 03-03-00539-CV



                             Guadalupe Guajardo, Jr., Appellant


                                                v.


                        Texas Board of Pardons and Paroles, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
         NO. GN300898, HONORABLE PATRICK O. KEEL, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant Guadalupe Guajardo, Jr. appeals the dismissal without prejudice of his

petition for a writ of mandamus against the Texas Board of Pardons and Paroles (Board). We affirm.


                     FACTUAL AND PROCEDURAL BACKGROUND

               Guadalupe Guajardo, Jr. was convicted of the murder of a police officer in 1962. The

jury assessed punishment at life imprisonment. Guajardo v. State, 363 S.W.2d 259 (Tex. Crim. App.

1963). Guajardo was paroled from 1975 until 1986. He was re-incarcerated between 1986 and

1988, when he was again released. Guajardo’s parole was revoked in 1993 and he has remained
incarcerated since that time. Guajardo represented in the trial court that he had parole reviews in

1994, 1997, and 2000, and that he was to have been up for review again in October of 2003.1

                Guajardo’s complaint centers on the manner in which he perceives the Board is

evaluating his parole applications. Guajardo claims that he was advised by a parole interviewer that

he had to serve 40 “flat” years (years actually served) in order to be considered for parole on his

murder conviction. This is consistent with current law. See Tex. Gov’t Code Ann. § 508.145(b)

(West Supp. 2004). However, the law in effect at the time of his 1962 conviction allowed Guajardo

to be considered for parole after serving only fifteen years. See Ex parte Alegria, 464 S.W.2d 868,

869 n.1 (Tex. Crim. App. 1971) (citing Act of April 30, 1957, 55th Leg., R.S., ch. 226, art. 3, §15,

1957 Tex. Gen. Laws 470). The law at the time of Guajardo’s conviction governs his parole

eligibility. See id. at 874; Ex parte Rutledge, 741 S.W.2d 460, 462 (Tex. Crim. App. 1987).

Guajardo filed a petition for mandamus in the trial court urging that while he was formally

considered for parole, he was denied any meaningful consideration because the Board was relying

on the current law as a matter of either law or policy. Guajardo also petitioned for permission to

attend the hearing on his petition. Although Guajardo complied with some of the additional filing

requirements designated by section 14.004 of the Texas Civil Practice and Remedies Code, he did

not submit a certified copy of his inmate trust account statement.

                On May 16, 2003, without ruling on Guajardo’s requests to attend the hearing in his

case, the trial court held a hearing and dismissed the case. The trial court’s order stated that

Guajardo’s claims lacked an arguable basis in law and that Guajardo failed to comply with the



       1
           The record does not indicate whether the October 2003 review took place or its outcome.

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requirements of section 14.006(f) of the Texas Civil Practice and Remedies Code. See Tex. Civ.

Prac. & Rem. Code Ann. §§ 14.003(b)(2), .004(c), .006(f) (West 2002). On May 22, 2003, Guajardo

filed a notice of appeal and a request for findings of fact and conclusions of law. The trial court

entered its findings of fact and conclusions of law on June 16, 2003.


                                              DISCUSSION

Participation in the Proceedings Below

               Guajardo contends in issues two through six that the trial court abused its discretion

and violated his rights under the United States and Texas Constitutions by failing to permit him to

participate in the May 16th hearing or respond to the evidence and argument presented by the State

at the hearing. Although a party may not be denied access to the courts merely because he is

incarcerated, state prisoners have no absolute right to appear personally in civil proceedings. Bounds

v. Smith, 430 U.S. 817, 820 (1977); Nance v. Nance, 904 S.W.2d 890, 892 (Tex. App.—Corpus

Christi 1995, no writ); Prueske v. Dempsey, 821 S.W.2d 687, 689 (Tex. App.—San Antonio 1991,

no writ); Brewer v. Taylor, 737 S.W.2d 421, 423 (Tex. App.—Dallas 1987, no writ). Instead, courts

follow a balancing approach, weighing the public interest in preserving the integrity of the

correctional system against the prisoner’s right of access. Thomas v. Bilby, 40 S.W.3d 166 (Tex.

App.—Texarkana 2001, no pet.).

               Courts consider a number of factors in determining whether to permit a prisoner to

appear in court in a civil case, including:


       (1) the cost and inconvenience of transporting the prisoner to court;

       (2) the security risk and danger to the court and public by allowing the appearance;

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        (3) whether the prisoner’s claims are substantial;

        (4) whether a determination of the matter can reasonably be delayed until the
            prisoner’s release;

        (5) whether the prisoner can and will offer admissible, noncumulative testimony
            that cannot be offered effectively by deposition, telephone, or otherwise;

        (6) whether the prisoner’s presence is important in judging his demeanor and
            credibility compared to that of other witnesses;

        (7) whether the trial is to the court or to a jury; and

        (8) the prisoner’s probability of success on the merits.


Thomas, 40 S.W.3d at 169; Brewer, 737 S.W.2d at 423. We review the trial court’s balancing of

these interests under an abuse of discretion standard. Thomas, 40 S.W.3d at 169; Brewer, 737

S.W.2d at 423.

                 We find that the trial court did not abuse its discretion by denying Guajardo the

opportunity to participate in the hearing, as his attendance and participation was unnecessary to

resolve the controlling issue. Guajardo’s mandamus petition was fatally defective because he failed

to file a certified copy of his inmate trust account as required by section 14.004(c) of the Texas Civil

Practice and Remedies Code. Dismissal is appropriate when a prisoner who files an affidavit or

unsworn declaration of inability to pay costs in a suit fails to also submit an affidavit in compliance

with section 14.004 and an accompanying certified statement of his inmate trust account. See

Thompson v. Rodriguez, 99 S.W.3d 328, 330 (Tex. App.—Texarkana 2003, no pet.); Williams v.

Brown, 33 S.W.3d 410, 412 (Tex. App.—Houston [1st Dist.] 2000, no pet.). This defect was

determinative of the case and was wholly ascertainable from the record. See Thomas, 40 S.W.3d at

169.

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               Guajardo further contends that, even if he was not entitled to appear at the hearing,

he was improperly deprived of the opportunity to respond to the Board’s motion to dismiss or

introduce evidence. But Guajardo was served with the Board’s motion to dismiss on May 5, 2003,

eleven days before the hearing. The motion explicitly sought dismissal on the grounds that Guajardo

had failed to file a certified copy of his inmate trust account statement. Guajardo admitted receiving

the motion by May 9, 2003, as he signed a request for extension of time to respond on that date.

Guajardo also filed a declaration in support of his request. Nowhere did he indicate that he was

unable to obtain a copy of his inmate trust account statement within the week prior to the May 16th

hearing. We find no abuse of discretion in the trial court’s failure to reset the May 16th hearing or

otherwise permit Guajardo to participate in the hearing when Guajardo was on notice of his failure

to submit a copy of his inmate trust account and made no effort to remedy this omission. We

overrule Guajardo’s second through sixth issues.


Reporter’s Record

               Guajardo complains in his first issue that his appeal was fatally prejudiced by his

inability to obtain a record of the May 16th hearing and asks that we reverse the trial court’s order

dismissing the case and remand for a new hearing which will be recorded. We disagree.

               Dismissal of Guajardo’s case was appropriate because he failed to file a certified copy

of a statement of his inmate trust account. A hearing was not required. See Thomas v. Wichita

General Hosp., 952 S.W.2d 936, 938 (Tex. App.—Fort Worth 1997, pet. denied). Because dismissal

was appropriate on the record prior to the May 16th hearing, we find that the failure to record the




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hearing at which the dismissal order was signed did not impede Guajardo’s right to appeal. We

therefore overrule his first issue. See Rogers, 561 S.W.2d at 173-74.


Findings of Fact and Conclusions of Law

               In his seventh issue, Guajardo contends that the trial court erred by filing findings of

fact and conclusions of law after his case had been dismissed. But Guajardo requested the findings

himself after he received the order dismissing the case. A party may not request a court take a

particular action and then complain on appeal that the court erred in granting his request. Northeast

Tex. Motor Lines, Inc. v. Hodges, 158 S.W.2d 487, 488 (Tex. 1942); Austin Transp. Study Policy

Comm. v. Sierra Club, 843 S.W.2d 683, 689 (Tex. App.—Austin 1992, writ denied). We overrule

Guajardo’s seventh issue.


Delegation

               In his eighth issue, Guajardo contends that the trial court impermissibly delegated its

power to set a hearing in the case to the Board’s counsel. Guajardo evidently bases his complaint

solely on the fact that the Board filed a notice of a hearing on its motion to dismiss. This notice set

the date for the May 16th hearing and explained that the matter would take approximately fifteen

minutes. Guajardo relies on an unpublished case from the Fourth Court of Appeals that holds that

“no litigant is entitled to a hearing at whatever time he desires.” In Re Arevalo, No. 04-02-00575,

2002 Tex. App. LEXIS 6217, at *3 (Tex. App.—San Antonio 2002, no pet.). We first note that

Guajardo did not preserve error because he did not raise this complaint in the trial court. See Tex.

R. App. P. 33.1(a); Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). Furthermore, the

trial court was not bound by the Board’s notice of hearing and the mere act of setting the hearing

                                                  6
cannot be construed as an impermissible delegation of the trial court’s inherent authority to control

its own docket. We overrule Guajardo’s eighth issue.


Central Docket

                In his ninth issue, Guajardo argues that his rights under the United States and Texas

Constitutions were violated because the trial judge who presided over the hearing, the Honorable

Patrick O. Keel, was not the elected judge of the 261st District Court, the court in which his case

was filed. Again, Guajardo did not raise this ground in the trial court and did not preserve error. See

Tex. R. App. P. 33.1(a); Dow Chem. Co., 46 S.W.3d at 241. Furthermore, a litigant does not have

a proprietary interest in having his case heard by a particular district judge or court within the county

of filing. See Tex. Const. art. V, § 11; In re Rio Grande Valley Gas Co., 987 S.W.2d 167, 173 (Tex.

App.—Corpus Christi 1999, orig. proceeding); Starnes v. Holloway, 779 S.W.2d 86, 96 (Tex.

App.—Dallas 1989, writ denied). We overrule Guajardo’s ninth issue.

                Having overruled all of Guajardo’s issues, we affirm the trial court’s order dismissing

Guajardo’s mandamus without prejudice.




                                                Bob Pemberton, Justice

Before Justices Kidd, B. A. Smith and Pemberton

Affirmed

Filed: May 6, 2004


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