
In The


Court of Appeals


Ninth District of Texas at Beaumont


____________________


NO. 09-01-096 CV

____________________


In the Interest of C.W., S.V.R., and L.L.R.




On Appeal from the 279th District Court
Jefferson County, Texas

Trial Cause No. F-174,270




OPINION
 This is an appeal from a judgment by the trial court terminating the parental rights
of Laura Martinez-Raveiro.  The sole appellate issue is presented to us as follows:
	A parent in a termination trial who has been excluded from the courtroom
through no fault of her own has been denied her right to personally confront
those witnesses against her and to assist her counsel.

	We interpret this issue, in light of the argument and authorities cited in support, as
one complaining of the lack of due process in conducting the termination hearing with
appellant, Laura Martinez-Raveiro, being physically absent.  The record reflects that at the
time of the hearing, appellant was incarcerated at a facility called the "Plain State Jail." 
Apparently, a bench warrant issued by the trial court in order to secure appellant's
attendance at the hearing was not executed by the sheriff's office, so appellant was not
physically present in the courtroom when the hearing took place.  
	At the outset, we note that the termination hearing in question was a civil
proceeding.  As such, appellant had no constitutional right to confront witnesses.  The
right to confront witnesses applies to criminal proceedings only.  U.S. Const. amend. VI;
Tex. Const. art. I, § 10; Texas Dep't of Pub. Safety v. Duggin, 962 S.W.2d 76, 81 (Tex.
App.--Houston [1st Dist.] 1997, no pet.).  That being noted, we nevertheless recognize
that our system of justice comprehends due process to include notice and an opportunity
to be heard.  See Mullane v. Cent. Hanover Bank & Trust, 339 U.S. 306, 313-14, 70 S.Ct.
652, 656-57, 94 L.Ed. 865, 873 (1950); Ex parte Peterson, 444 S.W.2d 286, 289 (Tex.
1969).  Due process has been held to mean "notice, and an opportunity to be heard and
to defend in an orderly proceeding adapted to the nature of the case.  It means 'a law
which hears before it condemns, which proceeds on inquiry, and renders judgment only
after trial.'"  See Masonic Grand Chapter of Order of Eastern Star v. Sweatt, 329 S.W.2d
334, 337 (Tex. Civ. App.--Fort Worth 1959, writ ref'd n.r.e.) (quoting 16A C.J.S.
Constitutional Law § 567, p. 542) (citation ommitted).
	In Byrd v. Attorney General of the State of Tex., Crime Victims Compensation Div.,
877 S.W.2d 566, 569 (Tex. App.--Beaumont 1994, no writ), we reiterated the general rule
that a litigant cannot be denied access to the courts because he is incarcerated but his right
of access does not unconditionally give an inmate the right to appear personally; the trial
court is required to make inquiries as to the necessity of a personal appearance and
whether denial of such appearance would foreclose a litigant's right to be heard at all.  See
also Nichols v. Martin, 776 S.W.2d 621, 623 (Tex. App.--Tyler 1989, orig. proceeding). 
Should the trial court find that the pro se inmate in a civil action is not entitled to leave
prison to appear personally in court, then the prisoner should be allowed to proceed by
affidavit, deposition, telephone, or other effective means.  Byrd, 877 S.W.2d at 569;
Pruske v. Dempsey, 821 S.W.2d 687, 689 (Tex. App.--San Antonio 1991, no writ).    
	In the instant case, after reading through the entire reporter's record of the hearing,
we find appellant's due process rights were scrupulously protected by the trial court as well
as trial counsel.  Appellant was in telephonic communication with the trial court and
"attended" the entire hearing via telephone.  Her trial counsel was physically present in
the courtroom during the hearing and was permitted to communicate with appellant in
private whenever appellant indicated she wished to do so.  Trial counsel vigorously and
skillfully cross-examined the witnesses for the petitioners, and appellant testified in her
own behalf.  Appellant also placed several exhibits into evidence.  On the very few
occasions that appellant had trouble hearing a witness's response, the trial court had the
witness repeat the answer and thereafter made sure appellant heard the response.  
	As an example of the trial court's sensitivity to appellant's rights, at the conclusion
of the presentation of evidence by the parties, the following exchange took place between
the trial court and appellant: 
		THE COURT:  Laura, this is the Judge again.  Is there anything else
you can think that you would be able to tell me if you were here physically
present in the courtroom or anything you could show me physically or
anything like that?

		MS. MARTINEZ:  You would see in my eyes the certainty that's on
my heart that I want my babies.

		THE COURT:  All right.  I can tell in your [sic] voice and the fact
that your voice is shaking that you're crying right now; is that right?

		MS. MARTINEZ:  Yes, sir.  

		THE COURT:  All right.  All right.  And I'm going to accept that
you are sincere at this time; okay?

		MS. MARTINEZ:  Yes, sir.

		THE COURT:  All right.  Is there any other reason why I should
bring you to the courtroom.

		MS. MARTINEZ:  I beg your pardon, sir?

		THE COURT:  Is there any other reason why you should be
physically present in the courtroom?

		MS. MARTINEZ:  I don't know.

		THE COURT:  Okay.  I mean - - if at a later time you were brought
to the courtroom, say later this week brought to this courtroom, would there
be anything else you would like to tell me?

		MS. MARTINEZ:  I don't think so, sir.  

	We find no denial of appellant's due process rights contained in the record before
us.  For all intents and purposes, appellant's presence via telephone for the entirety of the
hearing, along with being represented by counsel who was physically present at the
hearing, satisfied any and all due process requirements to which appellant was entitled. 
Appellate issue one is overruled and the judgment of the trial court is affirmed.  
	AFFIRMED.

							 _______________________________
								RONALD L. WALKER
									Chief Justice

Submitted on November 28, 2001
Opinion Delivered December 6, 2001
Publish

Before Walker, C.J., Burgess and Gaultney, JJ.
