                                    NO. 07-03-0007-CV

                                IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL C

                                      JULY 7, 2004
                            ______________________________

                               In re: Z.H. and M.H., Minors
                          _________________________________

              FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY;

                 NO. 51,363-A; HONORABLE JOHN T. FORBIS, JUDGE
                         _______________________________

                                 Memorandum Opinion
                           _______________________________

Before JOHNSON, C.J., and QUINN and REAVIS, JJ.

       Timothy Huseman (Huseman) appeals pro se from an order in a suit to modify the

parent-child relationship and on a petition in intervention for conservatorship. Four issues

are asserted. Two deal with the trial court’s purported failure to act upon various post-trial

motions. The remainder concern the trial court’s denial of his request for a bench warrant

entitling him to personally appear at trial. Huseman was imprisoned at the time. We affirm

the order of the trial court.

                                       Background

       The 64th District Court of Hale County entered an order dated March 10, 1998, in

which it modified the parent-child relationship between Huseman and his two children, Z.H.

and M.H.     Through it, he was removed as joint managing conservator, designated
possessory conservator, and his ex-wife, Rudina Faye Huseman (Rudina), designated sole

managing conservator. So too was he ordered not to have possession of or access to the

children at any time.

       On January 25, 2002, Huseman, who was representing himself, filed a motion to

modify in which he requested limited access to his children through the mail and access

to information regarding their health, welfare, and education.      Rudina (now Rudina

Paetzold) filed an answer and also a motion to transfer the matter to Randall County; the

proceeding was pending at the time in Hale County. The trial court granted the motion to

transfer on April 26, 2002. Thereafter, Rudina’s new husband, Kennith Paetzold (Kennith),

intervened seeking to be appointed a joint managing conservator.

       Trial on the motion to modify was convened on December 3, 2002. Several days

before then, however, Huseman had filed his “Second Motion for Bench Warrant”

requesting that he be allowed to attend the proceeding. The trial court denied the request

on November 27, 2003, and the hearing proceeded without him.

                           Issue One - Attendance at Hearing

       In his first and fourth issues, Huseman complains about the denial of his request to

personally attend or otherwise participate in the trial. He believed that this violated his

constitutional rights. We overrule the issue.

       We initially address the allegation about being denied opportunity to participate at

trial by means other than personal appearance. According to the record before us,

Huseman merely sought opportunity to personally attend the hearing. He did not request

the chance to participate through alternate means, such as affidavit, deposition, telephone

or the like. Again, he simply wanted to attend in person. Having failed to request the

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chance to participate through alternate means, he cannot now complain on appeal about

being denied such relief. Commerical Credit Equipment Corp. v. West, 677 S.W.2d 669,

673 (Tex. App.—Amarillo 1984, writ ref’d. n.r.e.) This is especially so given that the trial

court’s order did not foreclose pursuit of those substitute measures.

       As to the trial court’s denial of the bench warrant, we review that decision under the

standard of abused discretion.        Armstrong v. Randle, 881 S.W.2d 53, 56-57 (Tex.

App.—Texarkana 1994, writ denied); see In re Z.L.T., 124 S.W.3d 163, 165-66 (Tex. 2003)

(applying the standard of abused discretion). Thus, we must determine whether the

decision comported with controlling guidelines and principles. Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159, 106

S.Ct. 2279, 90 L.Ed.2d 721 (1986). One such principle holds that while a prisoner cannot

be denied access to the courts simply because he is an inmate, an inmate has no absolute

right to appear in person at every proceeding. In re Z.L.T., 124 S.W.3d at 165. Rather, he

has the burden to establish his right to that relief; that is, he must present the trial court with

“factual information” illustrating why his presence is necessary and warranted. Id. at 166.

And, the factual information should address such indicia as 1) the cost and inconvenience

of transportation, 2) the security risk involved, 3) whether the prisoner’s claims are

substantial, 4) whether the matter can be delayed until his release, 5) whether the inmate

will offer admissible, non-cumulative testimony that cannot be effectively presented by

some other manner such as telephone, deposition or the like, 6) whether his presence is

important to judge his credibility and demeanor, 7) whether the trial is to a jury or the court,

and 8) the probability of his ultimate success on the merits. Id. at 165-66. The trial court



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has no independent duty to sua sponte search for information touching upon those

subjects; again, the inmate has the obligation to provide it with the requisite data. Id.

         In the case before us, we note that Huseman said nothing of the Z.L.T. factors in his

“Second Motion for Bench Warrant,” that is, the one upon which the trial court acted. Nor

were they mentioned in the request for a bench warrant preceding that denied by the trial

court.

         And, while he alluded to them in a request that he tendered to the Hale County

district court before the cause was transferred to Randall County, we do not find the

allusion enough to evince an abuse of discretion on the part of the court, assuming of

course, that the Randall County district court was made aware of the filing.1 This is so

because his argument consisted of little more than unsworn commentary and conclusions.

For instance, while he mentioned that he would “call witnesses and offer admissable [sic]

testimony,” he failed to describe what that testimony would be, why it was probative, and

why it could not be provided through alternate means. Furthermore, when speaking about

the probability of his ultimate success, he said nothing more than 1) “[r]espondent’s

accusations and allegations are so unfounded and Huseman has requested such basic

access to his children that Huseman fully believes he will succed [sic] . . .,” 2) his ex-wife

previously succeeded in having the conservatorship modified because of “an ex parte

hearing held without Huseman’s knowledge,” and 3) his attorney did not appear on

Huseman’s behalf.2 The actual merits of his claim go unaddressed. Nor did he provide the

         1
          Huseman did not refer to the request for a bench warrant filed with the Hale County court or
othe rwise inco rpora te it by refe renc e in an y of the requ ests filed with the R and all Co unty court.

         2
         W e note that the trial cou rt did grant H usem an the right to obtain “information concerning the health,
educ ation, and welfare o f the children . . . .”

                                                        4
trial court with factual information touching upon his term of imprisonment and whether the

proceeding could have been reasonably delayed until his release; instead he simply says

that “any postponement . . . would serve no purpose other than to drive a wedge between

Huseman and his children.”3 These and the other unsupported conclusions mentioned in

the request filed with the Hale County district court did not satisfy his duty to provide

“factual information” to the Randall County district court. Consequently, we hold that the

trial court did not abuse its discretion in denying Huseman’s second motion for a bench

warrant.

                        Issues Two and Three - Post Trial Motions

        In his second and third issues, Huseman complained of the trial court’s failure to rule

on his post trial motions. We overrule them as well.

        After issuance of the court’s order, Huseman filed a motion for rehearing, motion for

clarifying order, and a request for findings of fact and conclusions of law. Because the trial

court did not act upon them, Huseman asserts that it erred, and he was harmed. Yet, the

motions for rehearing and to clarify were nothing more than an attempt to obtain a new trial

and seek a modification of the judgment, respectively. As such, they were overruled by

operation of law within 75 days after the judgment was signed. See TEX . R. CIV . P. 329b(c)

(stating that a motion for new trial or to correct or modify a judgment are overruled by

operation of law if not determined by written order within 75 days after the judgment was

signed). In short, the trial court was not obligated to formally act upon them.




        3
         W e find this comment of interest given that Huseman’s status as a n inm ate in prison effective ly
denied him physical access to his children.

                                                     5
       As for the request for findings of fact and conclusions of law, the record does not

show that Huseman ever filed a notice of past due findings of fact and conclusions of law.

Same was required to perfect his complaint about their absence. Las Vegas Pecan &

Cattle Co., Inc. v. Zavala County 682 S.W.2d 254, 255-56 (Tex. 1984); In re Guthrie, 45

S.W.3d 719, 722 (Tex. App.—Dallas 2001, pet. denied); Curtis v. Commission for Lawyer

Discipline, 20 S.W.3d 227, 232 (Tex. App.Houston [14th Dist.] 2000, no pet.).

Consequently, he waived this aspect of his issue. Id.

       Having overruled each issue, we affirm the “order in suit to modify parent-child

relationship and order on petition in intervention for conservatorship.”



                                                 Brian Quinn
                                                    Justice




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