                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-18-00054-CV



           ROBERT DAUGHERTY, Appellant

                           V.

             DIANNE SPRAGUE, Appellee



         On Appeal from the 62nd District Court
                Lamar County, Texas
                Trial Court No. 85954




      Before Morriss, C.J., Moseley and Burgess, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                MEMORANDUM OPINION
        After being convicted and sentenced, Robert Daugherty sued his criminal-defense attorney,

Dianne Sprague, alleging that she failed to communicate to him a plea offer from the State.

Daugherty tried various ways to serve Sprague with process in the lawsuit, but nothing suggests

that he ever succeeded. After the trial court denied Daugherty’s motion for default judgment and

dismissed his lawsuit for want of prosecution, he appealed. We affirm because (1) not notifying

Daugherty of the denial of his motion for a default judgment did not deny him the later right to

appeal that denial, (2) the record contains no evidence of any proper service of process, waiver of

service, or appearance by Sprague, and (3) nothing demonstrates any abuse of discretion in

denying Daugherty’s bench-warrant requests.

(1)     Not Notifying Daugherty of the Denial of his Motion for a Default Judgment Did Not Deny
        him the Later Right to Appeal that Denial

        Daugherty claims that the trial court’s failure to notify him of the denial of his motion for

default judgment caused structural error by restricting his right to appeal the trial court’s ruling.

“Ordinarily, the denial of a default judgment is an interlocutory order not subject to appeal.”

S. Pioneer Prop. & Cas. Ins. Co. v. Wilson, No. 01-17-00444-CV, 2018 WL 3384558, at *3 (Tex.

App.—Houston [1st Dist.] July 12, 2018, no pet.) (mem. op.) (citing TEX. CIV. PRAC. & REM.

CODE ANN. § 51.014 (West Supp. 2018)). However, it “is appealable after a final judgment or

order, including an order dismissing a case for want of prosecution.” Id. (citing Aguilar v.

Livingston, 154 S.W.3d 832, 833 (Tex. App.—Houston [14th Dist.] 2005, no pet.)). Because

Daugherty’s right to appeal the denial of his motion for default judgment is not lost, we overrule

this point of error.

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(2)     The Record Contains No Evidence of any Proper Service of Process, Waiver of Service, or
        Appearance by Sprague

        Daugherty also argues that the trial court’s finding that Sprague was never served

demonstrated bias and violated various provisions of the Code of Judicial Conduct. Because the

record failed to demonstrate proper service, we disagree. The Lamar County clerk issued a citation

addressed to Sprague commanding her to timely file a written answer. The officer’s return of

citation averred that Sprague could not be served at the address included in the citation because

she had “moved to Clarksville.” Daugherty, who was proceeding in forma pauperis, filed a letter

asking the trial court to research Sprague’s address to effectuate service of process. The letter

provided Sprague’s last known address and State Bar of Texas attorney number. On January 19,

2017, the clerk issued a second citation to Sprague at an address in Clarksville. The officer’s return

on the second citation indicated that Sprague was not served because she “reside[d] in Lamar Co.”

On March 17, 2017, Daugherty filed a letter which claimed that Sprague was served with the

lawsuit by regular and certified mail but failed to attach proof of service required by Rule 107 of

the Texas Rules of Civil Procedure. 1 Daugherty provided an address for Sprague in Idabel,

Oklahoma, in subsequent motions filed with the trial court. Although no proof of service was on

file, Daugherty moved for default judgment against Sprague on March 1, 2018. The trial court

denied the motion on March 7, without a hearing, after noting that Sprague had not been served.




1
 Daugherty mistakenly argues that the March 17 letter, which claimed that he mailed the petition to Sprague’s last
known address, was sufficient.

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         The denial of a motion for default judgment is reviewed for abuse of discretion. Armenta

v.. TDCJ, No. 06-10-00016-CV, 2010 WL 3168397, at *6 (Tex. App.—Texarkana Aug. 12, 2010,

no pet.) (mem. op.) (citing Resurgence Fin., LLC v. Taylor, 295 S.W.3d 429, 432 (Tex. App.—

Dallas 2009, pet. denied)). To authorize a default judgment, the record must reflect, immediately

before the default judgment, that the defendant has been properly served with citation, has waived

service in writing, or has appeared. Ranger Ready Mix, LLC v. Cintas Corp. No. 2, No. 06-18-

00035-CV, 2018 WL 4838233, at *2 (Tex. App.—Texarkana Oct. 5, 2018, no pet.) (mem. op.);

Bus. Staffing, Inc. v. Gonzalez, 331 S.W.3d 791, 792 (Tex. App.—Eastland 2010, no pet.); see

Leonard Manor, Inc. v. Century Rehab. of Tex., L.L.C., No. 06-09-00036-CV, 2009 WL 2878016,

at *1 (Tex. App.—Texarkana Sept. 10, 2009, pet. denied) (mem. op.). Because Sprague did not

appear, did not waive service, and was not properly served, the trial court properly denied

Daugherty’s motion for default judgment. 2 We overrule this point of error.

(3)      Nothing Demonstrates any Abuse of Discretion in Denying Daugherty’s Bench-Warrant
         Requests

         Daugherty also asserts that he was deprived of his constitutional right to be heard when the

trial court denied his motion for default judgment and later dismissed the case, both without

granting his request for a bench warrant to ensure his in-person presence at the hearings.

Daugherty had provided copies of a proposed bench warrant “[i]n the event the Court [felt] a need

for a hearing” on the motion for default judgment, but the trial court did not hold a hearing on that




2
 Daugherty also complains that the trial court erred in failing to order discovery against Sprague. Our conclusion
that the record failed to show proper service is dispositive of this complaint.
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motion. 3 On May 8, 2018, the trial court issued a notice of intent to dismiss the case for want of

prosecution and set the matter for a July 2 hearing date. The trial court denied Daugherty’s request

for a bench warrant to that hearing, and, on July 2, Daugherty’s lawsuit was dismissed for want of

prosecution.

           “An inmate has a constitutional right to access to the civil trial courts.” Allen v. Rushing,

129 S.W.3d 226, 229 (Tex. App.—Texarkana 2004, no pet.) (citing Hudson v. Palmer, 468 U.S.

517, 523 (1984)). “That right, however, is not completely unfettered.” Id. “For example, an

inmate does not have an absolute right to appear personally at all hearings associated with a civil

suit.” Id. (citing Armstrong v. Randle, 881 S.W.2d 53, 56 (Tex. App.—Texarkana 1994, writ

denied)). “An inmate may file an application for writ of habeas corpus with the trial court,

requesting it issue a bench warrant for the inmate’s appearance at a particular hearing.” Id. at 229–

30 (citing In re Z.L.T., 124 S.W.3d 163 (Tex. 2003)). In considering whether to grant an inmate’s

request to personally appear for a hearing, a trial court should consider the following factors:

       •          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;

3
Because the record failed to demonstrate proper service on Sprague, the trial court was free to find that Daugherty
was not entitled to default judgment without the need for a hearing.

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       •         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.

Ringer v. Kimball, 274 S.W.3d 865, 868 (Tex. App.—Fort Worth 2008, no pet.) (footnote omitted)

(citing Z.L.T., 124 S.W.3d at 165–66). “The Z.L.T. court held that a litigant’s status as an inmate

does not alter the litigant’s burden to identify with sufficient specificity the grounds for the ruling

sought.” Id. (citing Z.L.T., 124 S.W.3d at 166). “Accordingly, the trial court has no responsibility

to independently inquire into the applicability of the factors listed above.” Id. (citing Z.L.T., 124

S.W.3d at 166). “Rather, the burden is on the inmate to establish his right to relief, and if the

inmate fails to present sufficient information to the trial court for the trial court to evaluate the

bench warrant request under the factors listed above, the trial court does not abuse its discretion in

denying the request.” Id. (citing Z.L.T., 124 S.W.3d at 166).

           Here, Daugherty’s requests for bench warrants contain no information by which the trial

court could assess the necessity of his appearance at either hearing. Indeed, the motions do not

even reference the factors identified in Z.L.T. Because Daugherty failed to meet his burden to

prove his entitlement to a bench warrant, we cannot say the trial court abused its discretion in

implicitly denying his requests. See Ringer, 274 S.W.3d at 868; Z.L.T., 124 S.W.3d at 166. We

overrule his last point of error. 4



4
 Daugherty does not separately argue that the trial court abused its discretion in dismissing the case for want of
prosecution.
                                                        6
      We affirm the trial court’s judgment.




                                              Josh R. Morriss, III
                                              Chief Justice



Date Submitted:      December 20, 2018
Date Decided:        December 21, 2018




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