      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-13-00455-CV



                                         In re Curtis Ratliff


                       ORIGINAL PROCEEDING FROM BELL COUNTY



                             MEMORANDUM OPINION


                Relator Curtis Ratliff, an inmate who is acting pro so, filed a notice of appeal with

the Bell County District Court on June 10, 2013. He states that he is appealing the denial of a bench

warrant and challenges the trial court’s “attempt to force Petitioner to participate in an illegal and

unconstitutional telephone conference hearing.” In his prayer, he asks this Court to remand this

cause for a final hearing and grant his request “to be present in physical form and body in the

Courtroom for the final hearing.” Ratliff also filed a letter with this Court, explaining that “there is

no final judgment in this case because there was no actual final hearing” and that his appeal concerns

“the fact that the [trial] court never even took the motion for bench warrant into consideration and

the [trial] court then tried to force the Petitioner into a telephone conference hearing.” He requests

that this Court “issue an order” to the trial court to sign the final decree and grant his petition for

divorce by default.

                Among his pleadings in the underlying proceeding, Ratliff filed a petition for divorce,

a motion for judgment by default, a motion requesting a default hearing, and a motion for a bench

warrant for the final hearing. The record reflects that a default hearing was set for May 30, 2013,
but that it did not occur. The record does not contain an order denying Ratliff’s motion for bench

warrant, but it contains correspondence from the district court coordinator to Ratliff providing him

with alternative means to participate in the May 30 hearing, including providing him instructions to

participate by telephone conference. The record also contains a letter from the court coordinator to

the senior warden advising him of the telephone hearing that was scheduled and providing

instructions for Ratliff to appear by phone. The judge’s docket reflects that the case was called on

May 30 but that Ratliff did not call.

               To the extent that Ratliff is seeking to appeal, we lack jurisdiction because no final

judgment or appealable order has yet been signed by the trial court. See Tex. R. App. P. 26.1

(addressing time to perfect appeal), 27.1 (addressing prematurely filed notices of appeal); Lehmann

v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) (generally appeal may be taken only from final

judgment); Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001) (interlocutory

orders may be appealed only when allowed by statute). Because Ratliff is seeking to compel action

by the district court, however, we construe his notice of appeal as a petition for writ of mandamus

and conclude that we have jurisdiction to consider his issues in this context. See Tex. Gov’t Code

§ 22.221; see also Tex. R. App. P. 52.1. To be entitled to mandamus relief, Ratliff must show that

the trial court clearly abused its discretion and that he lacks an adequate appellate remedy. See

In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–40 (Tex. 2004) (citing Walker v. Packer,

827 S.W.2d 833, 840 (Tex. 1992)).

               The record does not contain an order denying Ratliff’s motion for a bench warrant.

The trial court however implicitly denied Ratliff’s motion by setting the final hearing and providing



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instructions for Ratliff to participate by telephone conference. See In re Z.L.T., 124 S.W.3d 163, 165

(Tex. 2003) (concluding that the trial court implicitly denied bench warrant by proceeding with

the hearing).

                “It is well-established that litigants cannot be denied access to the courts simply

because they are inmates.” Id. (citation omitted). “However, an inmate does not have an absolute

right to appear in person in every court proceeding.” Id. “Instead, the inmate’s right of access to the

courts must be weighed against the protection of our correctional system’s integrity.” Id. Factors

courts consider in weighing the inmate’s right of access against the protection of the correctional

system’s integrity include:


       •        the cost and inconvenience of transporting the prisoner to the courtroom;

       •        the security risk the prisoner presents to the court and 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. at 165–66. The inmate bears the burden to establish why his presence is necessary. Id. at 166.



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               In his motion for a bench warrant, Ratliff argued that the warrant was necessary so

that he could give testimony. In a letter addressed to the court coordinator, Ratliff also objected to

participating in the hearing by telephone, urging that: (i) he “[could] not allow [a] telephone

conference hearing because of the staff of the Law Library here,” (ii) the staff “constantly interferes

with [his] legal activity,” and (iii) the staff “will continuously spread [his] legal issues around to

other offenders and staff.” He also stated that he “want[ed] to be able to face the Judge in this case”

and that he “would better be able to present [his] case in person.” Ratliff’s stated reasons fail to

address factors courts consider in weighing the competing interests, such as the cost and

inconvenience of transporting him to the hearing and the security risk that he would present to the

court and public. See id. at 165–66.

               The trial court also provided him with alternative means to participate in the hearing.

See, e.g., In re A.W., 302 S.W.3d 925, 929–30 (Tex. App.—Dallas 2010, no pet.) (noting that, “when

an inmate asks to be physically present for a proceeding, he must provide the trial court with

sufficient factual information to allow the court to assess the necessity of his appearing at the

relevant hearing” but holding that trial court abused its discretion by denying request for bench

warrant “without allowing [inmate] to proceed by some other effective means”); In re R.C.R.,

230 S.W.3d 423, 426–27 (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. . . . [I]f a court determines that a pro se inmate in

a civil action is not entitled to leave prison to appear personally in court, the inmate should be

allowed to proceed by affidavit, deposition, telephone, or other means.” (citations omitted)).



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               Thus, Ratliff has failed to show that the trial court clearly abused its discretion by

implicitly denying Ratliff’s motion for a bench warrant. See In re Harrell, No. 01-11-00760-CV,

2012 Tex. App. LEXIS 620, at *9–11 (Tex. App.—Houston [1st Dist.] Jan. 26, 2012, orig.

proceeding) (mem. op.) (concluding that trial court was within its discretion in not granting bench

warrant “at this point in the proceedings”). We deny Ratliff’s petition for writ of mandamus.1



                                               __________________________________________

                                               Melissa Goodwin, Justice

Before Justices Puryear, Rose, and Goodwin

Filed: August 21, 2013




       1
           To the extent Ratliff asks this Court to compel action by an employee in the prison’s law
library, this Court does not have jurisdiction to consider this request. See Tex. Gov’t Code § 22.221.
We also do not have jurisdiction to consider Ratliff’s request for this Court to order the trial court
to sign a final decree granting Ratliff’s petition for a divorce by default. See In re Harrell, No.
01-11-00760-CV, 2012 Tex. App. LEXIS 620, at *6–8 (Tex. App.—Houston [1st Dist.] Jan. 26,
2012, orig. proceeding) (mem. op.) (noting that “courts of appeals do not have the power to control
the character of a judgment entered by a trial court”).

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