      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-10-00444-CV



                                      In the Interest of M.A.R.




                FROM THE DISTRICT COURT OF TRAVIS COUNTY,
                 261ST JUDICIAL DISTRICT, NO. D-1-AG-09-002978,
         HONORABLE ANGELITA MENDOZA-WATERHOUSE, JUDGE PRESIDING



                              MEMORANDUM OPINION



                Jonathan Thomas Martinez, an inmate in the Texas Department of Corrections,

appeals pro se the trial court’s order establishing the parent-child relationship in which the trial court

found that Martinez is the biological parent of M.A.R. and ordered him to pay retroactive and current

child support. In a single issue, Martinez contends that the trial court erred in denying him the

opportunity to participate in the trial and in awarding child support based on the statutory

presumption, absent evidence of income, that he earns minimum wage. See Tex. Fam. Code Ann.

§ 154.068 (West 2009). Because we conclude that the trial court abused its discretion in denying

Martinez’s request to participate by telephone conference or by some effective means other than

personal appearance by a bench warrant, we reverse the order of the trial court and remand for

further proceedings consistent with this opinion.
                      FACTUAL AND PROCEDURAL BACKGROUND

               M.A.R. was born to Martinez and Valerie Marie Renteria, an unmarried couple. Prior

to the birth of M.A.R., Martinez was incarcerated. Renteria sought Medicaid services for M.A.R.

pursuant to Title IV of the federal Social Security Act. See generally 42 U.S.C. §§ 601–679b (West

2003 & Supp. 2011). Part D of Title IV governs the establishment of paternity and child support.

See id. §§ 651–659b. Chapter 231 of the Texas Family Code provides for the state’s administration

and provision of “Title IV-D Services.” See Tex. Fam. Code Ann. §§ 231.001–309 (West 2009

& Supp. 2011). The office of the attorney general (OAG) is designated as the state’s Title IV-D

agency. Id. § 231.001 (West 2009).

               Pursuant to its authority under chapter 231, the OAG filed suit on behalf of Renteria

to establish Martinez’s paternity and child support. See id. § 231.101(a)(2), (3). Martinez appeared

pro se and admitted paternity but contested child support and any limitation on his paternal rights.

Martinez subsequently filed a motion for a bench warrant, requesting to be allowed to appear

personally at the trial. As the ground for his motion, Martinez stated that he was incarcerated for the

offense of aggravated sexual assault but did not state when he is eligible for release. He contended

that in his answer he made substantial claims that limiting his parental rights is not in the best

interest of M.A.R. and that incarceration alone is not reason enough to limit his parental rights.1 He




       1
           In his answer Martinez stated that he had a good relationship with M.A.R. prior to his
incarceration, continues to keep in touch, and offers support through family members. He requested
visitation during his incarceration, asking that a designated caregiver or Renteria transport M.A.R.
He asserted that because he is incarcerated, due process requires that no child support be ordered
until ninety days after his release and that ordering child support prior to release and causing the
accumulation of debt would harm his relationship with M.A.R.

                                                  2
further argued that he needed to be able to present his own defense, cross examine witnesses, and

testify; that “[o]nly the father can testify to the facts of his love and concern for the child and of his

ability to care for the child[;]” and that the trial court should have the opportunity to observe his

demeanor as he “tells his story and plans upon release from prison.” Martinez also asserted that it

is commonplace for a prison warden to release prisoners to a sheriff for transport to court, that he

posed no excessive security risk, and that the cost and inconvenience were minimal because such

transports are within the normal course of business. In the alternative, Martinez asked to be allowed

to participate by another effective means, specifically requesting a continuance until his release or

a telephone conference.

                The trial court did not expressly address Martinez’s motion but, when Martinez did

not appear, proceeded to trial and, after hearing the testimony of one witness, Renteria, rendered a

final order establishing the parent-child relationship by default.2 The order recited that Martinez

“although duly notified, did not appear,”established Martinez’s paternity, granted a judgment for

retroactive child support of $8,124.00, ordered current child support of $188 per month and cash

medical support of $40 per month, appointed Renteria managing conservator and Martinez

possessory conservator, and ordered visitation that varied from the standard possession and access

order by limiting Martinez’s possession and access. Both the retroactive support judgment and the

current child support order were set based on the statutory presumption, absent evidence of income,

that Martinez earned the minimum wage. See id. § 154.068. According to the OAG, the trial court


        2
         Renteria offered one exhibit, the results of the DNA testing. The record does not contain
the exhibit, which was apparently offered to establish Martinez’s paternity although Martinez
admitted paternity in his answer.

                                                    3
restricted Martinez’s rights of possession and access based on Renteria’s testimony about his offense,

including that the victim was a child. No findings of fact or conclusions of law were requested or

filed. Martinez timely filed a motion for new trial, which was overruled by operation of law. This

appeal followed.


                                            ANALYSIS

               We first address whether the trial court erred in failing to consider Martinez’s request

for a bench warrant. Although the trial court did not rule on Martinez’s motion, by proceeding to

trial without issuing a bench warrant, the trial court implicitly denied Martinez’s request. See In the

Interest of Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003). We review a trial court’s decision on

an inmate’s request for a bench warrant for an abuse of discretion. See id.; In the Interest of A.W.,

302 S.W.3d 925, 928 (Tex. App.—Dallas 2010, no pet.). The test for abuse of discretion is whether

the trial court’s ruling is arbitrary, unreasonable, or without reference to any guiding rules or legal

principles. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000).

               It is well settled that litigants cannot be denied access to the courts merely because

they are inmates. In the Interest of Z.L.T., 124 S.W.3d at 165. “However, an inmate does not have

an absolute right to appear in person in every court proceeding.” Id.; see also In the Interest of

D.D.J., 136 S.W.3d 305, 311 (Tex. App.—Fort Worth 2004, no pet.) (inmate, whether plaintiff or

defendant in civil action, does not have automatic right to appear personally in court). Rather, in

determining whether a personal appearance is warranted, the trial court must balance the prisoner’s

right of access to the courts against the government’s interest in protecting the integrity of

the correctional system. In the Interest of Z.L.T., 124 S.W.3d at 165; Heine v. Texas Dep’t of

                                                  4
Pub. Safety, 92 S.W.3d 642, 649 (Tex. App.—Austin 2002, pet. denied). When deciding whether

to grant an inmate’s request for a bench warrant, Texas courts apply the factors articulated by the

Seventh Circuit in Stone v. Morris, 546 F.2d 730, 735–36 (7th Cir. 1976). In the Interest of Z.L.T.,

124 S.W.3d at 165. These factors include the costs and inconvenience of transporting the prisoner

to the courtroom; the security risk the prisoner presents to the court and the public; whether the

prisoner’s claims are substantial; whether the matter’s resolution can reasonably be delayed until the

prisoner’s release; whether the prisoner can and will offer admissible, noncumulative testimony that

cannot be effectively presented by deposition, telephone, or some other means; whether the

prisoner’s presence is important in judging his demeanor and credibility; whether the trial is to the

court or a jury; and the prisoner’s probability of success on the merits. Id.; Heine, 92 S.W.3d at 650.

               It is the inmate’s burden to show the trial court why his presence is warranted. In the

Interest of Z.L.T., 124 S.W.3d at 166; In the Interest of A.W., 302 S.W.3d at 929. Here, Martinez

did address some of the Stone factors in his motion. He asserted that the costs and inconvenience

of transporting him would be minimal, and he referred to the “substantial claims” he made in his

answer regarding the best interest of M.A.R. and the limiting of his parental rights. He also asserted

that he needs to be able to present his own defense, testify, and cross examine witnesses; that only

he as the father could testify to the “facts of his love and concern for the child” and plans after

release; and that the trial court should be able to observe his demeanor.

               However, Martinez’s showing was less than substantial on these matters and entirely

lacking on other factors. Although he asserted that the costs and inconvenience of transporting him

would be minimal and that he posed no substantial security risk, he presented no factual information



                                                  5
on these issues. See In the Interest of A.W., 302 S.W.3d at 929. Beyond stating generally that he

wanted to testify about his “love and concern” for M.A.R. and his “plans upon release from prison,”

Martinez did not state with any specificity the relevant matters on which he wished to offer

testimony so that the trial court could assess whether his testimony would have been noncumulative

of the testimony of other witnesses or incapable of being presented effectively by some other means.

Cf. In the Interest of A.W., 302 S.W.3d at 929 (inmate explained with specificity matters on which

he wished to testify, including custody and rights to possession of children, possibility of his

mother’s obtaining rights to possess children during his incarceration, existence and status of

specifically-identified community assets, and his counterclaim for fraud). And, although Martinez

stated the fact of his incarceration, he did not indicate when he would be eligible for release so that

the trial court could determine whether the resolution of the matter could reasonably be delayed until

his release.

               Even assuming the matters contained in Martinez’s answer are “substantial claims”

and that because the issues of child support, possession, and access are contested, his presence would

be necessary for credibility determinations, see In the Interest of A.W., 302 S.W.3d at 929–30, on

the whole, Martinez did not provide sufficient factual information to enable the trial court to balance

all of the Stone factors. Therefore, we cannot say that the trial court abused its discretion in

implicitly denying his request for a bench warrant. See In the Interest of Z.L.T., 124 S.W.3d at 166

(trial court did not abuse discretion in denying bench warrant where inmate listed Stone factors but

failed to provide factual information showing how his interest in appearing outweighed impact on

correctional system); In the Interest of A.W., 302 S.W.3d at 929–30 (despite strong showing



                                                  6
regarding inmate’s claims and testimony, in absence of factual showing concerning transportation

and safety, trial court did not abuse its discretion in denying motion for bench warrant); In the

Interest of D.D.J., 136 S.W.3d at 312 (trial court did not abuse its discretion in denying bench

warrant where inmate cited Stone factors but did not provide sufficient factual information to enable

court to balance factors).

               We now turn to the issue of whether the trial court erred in failing to consider

Martinez’s alternative request to participate in the trial by some effective means other than by

personal appearance. As with the request for a bench warrant, by proceeding to trial without granting

Martinez the opportunity to participate by some other means, the trial court implicitly denied

Martinez’s alternative request. See In the Interest of D.D.J., 136 S.W.3d at 313. We review the

denial of an alternative request to participate by some other effective means, as we do the denial

of a motion for bench warrant, under an abuse of discretion standard. In the Interest of A.W.,

302 S.W.3d at 928, 930; In the Interest of D.D.J., 136 S.W.3d at 312–13.

               As we previously observed, although an inmate does not automatically lose the right

of access to the courts by virtue of being incarcerated, the inmate has no absolute right to appear in

person. In the Interest of Z.L.T., 124 S.W.3d at 165; In the Interest of R.C.R., 230 S.W.3d 423, 426

(Tex. App.—Fort Worth 2007, no pet.). “The right of a prisoner to have access to the courts entails

not so much his personal presence as the opportunity to present evidence or contradict the evidence

of the opposing party.” In the Interest of R.C.R., 230 S.W.3d at 426 (quoting In the Interest of

D.D.J., 136 S.W.3d at 314) (quoting Dodd v. Dodd, 17 S.W.3d 714,717 (Tex. App.—Houston [1st

Dist.] 2000, no pet., disapproved on other grounds, In the Interest of Z.L.T., 124 S.W.3d at 166 ))



                                                  7
(internal quotations omitted). The courts have consistently held that if a trial court determines that

a pro se inmate in a civil action has demonstrated a “substantial claim” but has not demonstrated that

he is entitled to leave prison to appear in person, the court should nonetheless consider the inmate’s

request to proceed by some other means, such as affidavit, deposition, or telephone. See, e.g., In the

Interest of A.W., 302 S.W.3d at 930 (by denying inmate’s request for bench warrant without allowing

him to proceed by some other effective means, trial court abused its discretion); In the Interest of

D.D.J., 136 S.W.3d 305, 314 (Tex. App.—Fort Worth 2004, no pet.) (in denying motion for bench

warrant, court should have considered permitting inmate to proceed by other effective means, such

as telephone conference he expressly requested); Heine, 92 S.W.3d at 650 (even if merits could have

been determined without inmate’s physical presence, trial court should have considered other

effective means for him to present his side of dispute, for example by arranging conference call); see

also In the Interest of R.C.R., 230 S.W.3d at 426–27 (if court determines inmate is not entitled to

appear personally, he should be allowed to proceed by affidavit, deposition, telephone, or other

means; trial court’s dismissal for failure to appear without providing any means to appear was

fundamentally unfair and denied inmate access to courts); Sweed v. City of El Paso, 139 S.W.3d 450,

452 (Tex. App.—El Paso 2004, no pet.) (trial court abused its discretion in dismissing case for want

of prosecution after failing to consider inmate’s request to proceed by telephone or

videoconferencing technology).

               We therefore conclude that the trial court abused its discretion by implicitly denying

Martinez’s alternative request to appear by some other effective means. In addition, we observe that

the OAG concedes the trial court should have at least considered whether Martinez’s participation



                                                  8
by some effective means other than his personal appearance was warranted. We sustain Martinez’s

sole issue insofar as the trial court’s denial of his alternative request. Because we are remanding the

case for the trial court to consider how to allow Martinez to participate effectively, other than by

personal appearance, in the trial of the controverted issues of child support, possession, and access,

we do not reach Martinez’s arguments concerning child support. See Tex. R. App. P. 47.1.


                                          CONCLUSION

               We reverse the trial court’s order establishing the parent-child relationship and

remand for further proceedings consistent with this opinion.3



                                               __________________________________________

                                               Melissa Goodwin, Justice

Before Justices Puryear, Henson, and Goodwin

Reversed and Remanded

Filed: February 23, 2012




       3
          Martinez has filed three motions that are pending before this Court: (1) Appellant’s Pro
Se Motion for Leave to Suspend Rules 9.3 and 9.4 and File Only One Original of All Documents
without Respect to Form, (2) Appellant’s Pro Se Motion for the Court to Order the Trial Court
Officials to Show Cause Why the Complete Record Has Not Been Timely Filed, and (3) Appellant’s
Pro Se Motion to Withdraw the Appendix (Transcription of the Electronic Recording (RR)) or in the
Alternative for the Clerk to Provide a Copy to Appellant. We dismiss these motions as moot.

                                                  9
