      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-18-00211-CV



                             Juan Carlos Avila-Gonzalez, Appellant

                                                   v.

                                   Maria Elena Avila, Appellee


 FROM THE DISTRICT COURT OF McCULLOCH COUNTY, 452ND JUDICIAL DISTRICT
       NO. 2017162, HONORABLE ROBERT R. HOFMANN, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Juan Carlos Avila-Gonzalez1 appeals from the trial court’s final decree of divorce

appointing his former spouse, appellee Maria Elena Avila, sole managing conservator of their

children. In three appellate issues, Avila-Gonzalez contends, in essence, that the trial court abused

its discretion in denying him his right to a jury trial and in assessing a bill of costs against him. We

will reverse the provision in the trial court’s final decree that orders Avila-Gonzalez to pay court

costs and affirm the decree’s remaining provisions.




       1
          Avila-Gonzalez has represented himself in the trial court and on appeal. Although we
attempt to construe a pro se appellant’s briefing liberally, see Tex. R. App. P. 38.9, we must also
hold pro se litigants to the same standards as licensed attorneys and require them to comply
with applicable procedural rules. See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85
(Tex. 1978); Veigel v. Texas Boll Weevil Eradication Found., Inc., 549 S.W.3d 193, 195 (Tex.
App.—Austin 2018, no pet.).
                                           BACKGROUND

                Maria Elena Avila filed for divorce in September 2017. Avila-Gonzalez filed an

answer and did not request a jury trial. On October 25, 2017, the trial court issued a notice of setting

for a final hearing on December 12. At the time, Avila-Gonzalez was incarcerated in federal prison

serving a life sentence. Avila-Gonzalez later claimed that he did not receive this notice because he

had been transferred to another prison. On November 21, the trial court clerk filed a document from

Avila-Gonzalez providing a new address. On November 27, the court clerk filed a motion from

Avila-Gonzalez requesting a jury trial.

                The trial court called the case for hearing on December 12 but reset the case

for January 11, 2018, because it determined that Avila-Gonzalez had requested a jury trial. On

December 27, Maria Elena Avila filed a motion to strike the case from the jury docket, arguing that

Avila-Gonzalez’s request for jury trial was untimely because it was filed less than 30 days before

trial was set to commence on December 12. See Tex. R. Civ. P. 216(a) (“No jury trial shall be had in

any civil suit, unless a written request for a jury trial is filed with the clerk of the court a reasonable

time before the date set for trial of the cause on the non-jury docket, but not less than thirty days in

advance.”). The court called the case on January 11, but, out of concern for proper notice to Avila-

Gonzalez, again reset the case. The court set the date of the final hearing for March 20, 2018. Avila-

Gonzalez does not dispute that he received notice of the March 20 hearing. The trial court also

issued an order that Avila-Gonzalez participate in the hearing by telephonic means. On January 30,

the trial court filed a document from Avila-Gonzalez that acknowledged the March 20 setting and

again requested a jury trial. Then, on February 5, the trial court filed a document from Avila-Gonzalez



                                                    2
objecting to the March 20 setting and stating, “the Respondent indicates affirmatively in the record

that it intends to stand on its perfected right to a Jury Trial.”

                On March 20, the trial court called the case for a final hearing. Avila-Gonzalez did

not appear telephonically and was not represented by an attorney. After recounting the case’s

procedural history, the trial court stated that it had received notice from the federal prison in which

Avila-Gonzalez was incarcerated that Avila-Gonzalez “was refusing to participate in the telephone

hearing.” The court further stated that it had personally contacted the prison concerning the hearing.

Maria Elena Avila’s attorney then explained that she had contacted the case manager at the prison,

who indicated that Avila-Gonzalez “refuses to testify by phone and will not—does not want to

participate by phone at this hearing today.” Counsel then offered, and the trial court admitted, emails

supporting her contention that Avila-Gonzalez refused to appear telephonically. After hearing

further testimony and argument, the trial court stated, “We know that the Respondent/father has

refused to participate in this hearing and urge his motion, although he has received multiple and

numerous notices of these settings as previously testified to.” The court then indicated that it would

proceed with the final hearing. At the hearing, Maria Elena Avila testified, among other things, that

Avila-Gonzalez had repeatedly physically abused her and emotionally abused their children.

                At the conclusion of the hearing, the trial court stated that it would grant the divorce,

appoint the petitioner sole managing conservator of the children, and appoint Avila-Gonzalez

possessory conservator. The court signed a final decree of divorce to that effect, and this appeal

followed.




                                                    3
                                            DISCUSSION

Jury Trial and Due Process

                In his first two appellate issues, Avila-Gonzalez contends that the trial court violated

his due process rights in failing to inform him of the December 12 setting and abused its discretion

in denying his request for a jury trial. However, even assuming, without deciding, that Avila-

Gonzalez did not receive the original notice of the December 12 setting, we conclude that the trial

court did not violate Avila-Gonzalez’s due process rights. Indeed, it is undisputed that the trial court

reset the case to ensure that Avila-Gonzalez received due process. When the trial court remained

concerned about the notice issue at the January 11 hearing, it reset the case again. The final hearing

did not occur until March 20, and it is undisputed that Avila-Gonzalez had notice of that setting.

                In addition, even assuming, without deciding, that Avila-Gonzalez perfected his

request for a jury trial, we conclude that he waived that right by failing to appear at the final

hearing and urge his objection to the bench trial. See id. R. 220 (“Failure of a party to appear for

trial shall be deemed a waiver by him of the right to trial by jury.”); Bradley Motors, Inc. v. Mackey,

878 S.W.2d 140, 141 (Tex. 1994) (per curiam) (“[A] party who fails to appear at trial after filing an

answer waives the right to a jury trial.”); In re Harrison, No. 14-15-00430-CV, 2018 WL 2926268,

at *27 (Tex. App.—Houston [14th Dist.] June 12, 2018, no pet.) (substitute op.) (“A party who fails

to appear at trial after filing an answer waives a right to a jury trial.”) (collecting cases); Nichols v.

Goodger, No. 03-16-00044-CV, 2017 WL 3122793, at *3 (Tex. App.—Austin July 20, 2017, no

pet.) (mem. op.) (holding that the trial court did not deny appellant his constitutional right to trial by

jury when it held a bench trial after appellant failed to appear for trial).



                                                    4
                Because Avila-Gonzalez had notice of the final hearing and waived his right to a jury

trial by failing to appear telephonically, we conclude that the trial court did not violate Avila-

Gonzalez’s constitutional rights and did not abuse its discretion in proceeding with a bench trial.

Accordingly, we overrule Avila-Gonzalez’s first two appellate issues.


Bill of Costs

                In his third appellate issue, Avila-Gonzalez contends that the trial court “erred and

abused its discretion” in assessing costs against him despite the fact that he filed an uncontested

affidavit of indigency and inability to pay. In her brief, Maria Elena Avila does not address Avila-

Gonzalez’s argument that he is indigent, instead merely stating that “the district clerk properly

included the required certified bill of costs in the record” because it is undisputed that Avila-

Gonzalez received a copy of the record for which costs were assessed.

                The record before us includes a document entitled “Affidavit of Indigency and

Inability to Afford Payments of Child Support, Court Costs or an Appeal Bond.” In the document,

Avila-Gonzalez states that he is serving a life sentence in federal prison, asserts that he is unable to

pays costs because of his poverty, and explains his financial condition. The document makes these

declarations under penalty of perjury, is signed by Avila-Gonzalez, and is notarized. Attached to

the document are records of Avila-Gonzalez’s inmate balance. The record before us does not

indicate that this affidavit was ever contested in the trial court.

                “A party who files a Statement of Inability to Afford Payment of Court Costs

cannot be required to pay costs except by order of the court as provided by this rule.” Tex. R. Civ.

P. 145(a). The record before us does not indicate that Avila-Gonzalez’s statement was ever


                                                   5
contested or that the trial court entered an order under Rule 145 requiring Avila-Gonzalez to pay

costs. “An uncontested affidavit of inability to pay is conclusive as a matter of law.” Campbell v.

Wilder, 487 S.W.3d 146, 151 (Tex. 2016) (cleaned up). “It is an abuse of discretion for any judge,

including a family law judge, to order costs in spite of an uncontested affidavit of indigence.” Id.

at 152. Moreover, the portion of a judgment ordering costs in spite of an uncontested statement of

inability to pay is void. Tex. R. Civ. P. 145(h) (“The judgment must not require the declarant to pay

costs, and a provision in the judgment purporting to do so is void . . . .”).

                Accordingly, we sustain Avila-Gonzalez’s third appellate issue and will reverse the

provision in the trial court’s final decree that orders Avila-Gonzalez to pay court costs. See Vega

v. Davis, No. 12-17-00302-CV, 2018 WL 4001820, at *4 (Tex. App.—Tyler Aug. 22, 2018, no

pet. h.) (mem. op.) (reversing “that portion of the judgment ordering Vega to pay costs” because the

trial court failed to comply with Rule 145).


                                           CONCLUSION

                Having sustained Avila-Gonzalez’s third issue and having overruled his remaining

issues, we reverse the provision in the trial court’s final decree of divorce that “costs of court are to

be borne by the party who incurred them” to the extent it applies to Avila-Gonzalez. We affirm the

remaining provisions of the decree.




                                                   6
                                            __________________________________________

                                            Scott K. Field, Justice

Before Chief Justice Rose, Justices Puryear and Field

Affirmed in Part; Reversed in Part

Filed: October 9, 2018




                                               7
