                                   NO. 12-10-00026-CV

                          IN THE COURT OF APPEALS

            TWELFTH COURT OF APPEALS DISTRICT

                                         TYLER, TEXAS
                                                        '
IN RE: CLAUDIA P. TOVAR,
                                                        '             ORIGINAL PROCEEDING
RELATOR
                                                        '

                                       MEMORANDUM OPINION
        In this original proceeding, Claudia P. Tovar, the relator, seeks a writ of mandamus
compelling the trial court to provide her with an interpreter at all court hearings in the underlying
proceeding without prepayment of the interpreter’s fee. Tovar also asks that the writ direct the
trial court to remove the case from its dismissal docket.1 We deny the petition.


                                                BACKGROUND
        This proceeding arises from a divorce and child custody action in which Tovar is the
petitioner. Tovar is indigent.2
        Tovar filed a motion for an interpreter in the trial court alleging that she is a Spanish
speaker and does not comprehend or communicate in English. Attached to her motion was a
proposed order stating, in part, “that the fees and expenses of the court interpreter for services
shall be paid from the general fund of Smith County.” The trial court appointed an interpreter,
but, without stating a reason, denied Tovar’s request that Smith County pay the fee. Tovar
moved for, and the trial court denied, reconsideration of the order regarding payment of the
        1
          The respondent is the Honorable Carole W. Clark, Judge of the 321st Judicial District Court, Smith
County, Texas. The real party in interest is Efren Mota Sanchez, who has been served with citation in the
underlying action but has not entered an appearance.
        2
            Tovar is represented by Lone Star Legal Aid and filed an affidavit of indigency as well as an IOLTA
certificate. A party’s affidavit of inability accompanied by an attorney’s IOLTA certificate may not be contested.
TEX. R. CIV. P. 145(c).
interpreter’s fee. The interpreter then notified Tovar’s counsel that she would not appear in court
without prepayment of her fee.         At the final hearing, Tovar did not proceed because the
interpreter did not appear, and the case was placed on the trial court’s dismissal docket. Tovar
then filed this original proceeding.
       Approximately one month later, the trial court vacated its order denying Tovar’s motion
for reconsideration, and issued another order denying the motion. This second order did not
address payment of the interpreter’s fee. But the trial court did not remove the case from the
dismissal docket or indicate that Smith County would pay the interpreter’s fee. Tovar filed a
motion for emergency relief.

                                       PREREQUISITES TO MANDAMUS
       Mandamus is an extraordinary writ that should issue only in situations involving manifest
and urgent necessity and not for grievances that may be addressed by other remedies. In re
McAllen Med. Ctr., 275 S.W.3d 458, 471 (Tex. 2008) (orig. proceeding). Thus, mandamus is
granted only when the trial court has clearly abused its discretion and the relator lacks an
adequate appellate remedy. In re Team Rocket, L.P., 256 S.W.3d 257, 259 (Tex. 2008) (orig.
proceeding). A trial court clearly abuses its discretion if it reaches a decision so arbitrary and
unreasonable as to amount to a clear and prejudicial error of law. Walker v. Packer, 827 S.W.2d
833, 839 (Tex. 1992) (orig. proceeding). An appellate remedy is “adequate” when any benefits
to mandamus review outweigh the detriments.           In re Prudential Ins. Co. of Am., 148
S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding).
       The relator has the burden of establishing both prerequisites to mandamus. In re CSX
Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig. proceeding). This burden is a heavy one.
Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304 (Tex. 1994) (orig. proceeding).


                                           ABUSE OF DISCRETION
       Tovar contends that because she is indigent, Smith County should be ordered to pay the
interpreter’s fee. She argues that in failing to order this payment, the trial court has effectively
denied her a meaningful forum in which to complete her divorce because she does not
comprehend or communicate in English. According to Tovar, this failure violates the due




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process and equal protection guarantees of the United States Constitution and constitutes a clear
abuse of discretion by the trial court.
          A court may select and appoint an interpreter and “fix the interpreter’s reasonable
compensation.” TEX. R. CIV. P. 183. But the interpreter must be “paid out of funds provided by
law or by one or more of the parties as the court may direct, and may be taxed ultimately as
costs, in the discretion of the court.” Id. Tovar requested that the interpreter’s fee be paid from
Smith County’s general fund. But Tovar does not address rule 183 in her briefing. Thus, she
provides no argument or authority supporting a conclusion that the term “funds provided by
law,” as used in the rule, encompasses a county’s general fund. Consequently, Tovar has not
established that the trial court has the authority to order payment of the interpreter’s fee from
Smith County’s general fund. Without a showing that the trial court has that authority, Tovar
cannot establish that the trial court clearly abused its discretion in failing to issue the requested
order.3

                                                       DISPOSITION
          Because Tovar has not shown a clear abuse of discretion by the trial court, she has not
established the first prerequisite to mandamus. Therefore, we need not address the second
prerequisite—whether she has an adequate remedy by appeal. See TEX. R. APP. P. 47.1. Tovar’s
petition for writ of mandamus is denied. Tovar’s Motion for Emergency Relief is denied.

                                                                           JAMES T. WORTHEN
                                                                               Chief Justice


Opinion delivered June 15, 2010.
Panel consisted of Worthen, C.J., and Griffith, J.
Hoyle, J., not participating.




                                                     (PUBLISH)


          3
          Because Tovar has not shown that the trial court has the authority to issue the order she seeks, we do not
address Tovar’s constitutional claims and express no opinion on their merits.

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