Monday, August 27, 2007

Pro Se: He who represents himself has a lously lawyer for counsel and a fool for a client

In the Interest of Y. L. C., a Minor Child, No. 06-07-00036-CV (Tex.App.- Texarkana, Aug. 24, 2007)(Opinion by Chief Justice Morriss)(Before Chief Justice Morriss, Justices Carter and Moseley)
Appeal from 354th District Court of Hunt County, Trial Court No. 62078
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss


Before January 29, 2007, Y.L.C.'s joint managing conservators were Debbie Truss (Y.L.C.'s maternal grandmother) and Truss' husband, William Godfrey; joint possessory conservators were Y.L.C.'s parents, Linda Ivie and Derick Clark. On that date, in an order agreed to by Ivie and Truss--but not Clark--Ivie was appointed Y.L.C.'s sole managing conservator.

The order found that Clark had made a general appearance in the suit but had defaulted by not appearing at trial. (1) The order also recited that a record of testimony was reported by a court reporter. While we have a clerk's record, no reporter's record has been filed with this Court. Clark, pro se, appeals.

We affirm the trial court's order because we hold that (1) refusing to appoint counsel for Clark was not an abuse of discretion, (2) overruling Clark's motion for continuance was not an abuse of discretion, (3) without a reporter's record, we must assume the evidence supports the trial court's order, (4) Clark's generic assertion that the trial court failed to "properly file" his motions and letters does not adequately present any issue for appellate review, and (5) Clark's generic assertion that the trial court erred in not enforcing prior orders does not adequately present any issue for appellate review.

(1) Refusing to Appoint Counsel for Clark Was Not an Abuse of Discretion

On appeal, Clark asserts that, because he was indigent, the trial court was obligated to appoint counsel to represent him in this matter. (2) We disagree.

We review the trial court's failure to appoint trial counsel in a civil case for an abuse of discretion under Section 24.016 of the Texas Government Code. See Gibson v. Tolbert, 102 S.W.3d 710, 712 (Tex. 2003).

While statutory authority allows a district judge to appoint counsel for indigent litigants, generally, (3) a civil litigant has no general constitutional right to appointed counsel. (4) See Sandoval v. Rattikin, 395 S.W.2d 889, 893-94 (Tex. Civ. App.--Corpus Christi 1965, writ ref'd n.r.e.).

In some exceptional cases, the public and private interests at stake are such that the administration of justice may best be served by appointing a lawyer to represent an indigent civil litigant. Travelers Indem. Co. of Conn. v. Mayfield, 923 S.W.2d 590, 594 (Tex. 1996).

However, as the court applied the review standard in Gibson, the existence of extraordinary circumstances required to authorize such appointment is a fact-based question that is best answered in connection with each specific case. (5) On this record, we cannot conclude that this, a child custody determination, is so extraordinary that it requires the appointment of counsel or that the trial court abused its discretion by failing to make such an appointment.
We overrule this contention of error.

(2) Overruling Clark's Motion for Continuance Was Not an Abuse of Discretion

Clark also contends the trial court erred by not granting his motion for continuance. He does not specify the document to which he refers, though there are a few candidates. In a letter to the trial court filed September 19, 2005, Clark refers to a letter to the attorney general requesting a continuance. There is a motion to continue the case in order to appoint a guardian ad litem for Y.L.C. A fax was transmitted and filed January 29, 2007, in which Clark stated he was unable to appear in court on that day.

None of those documents could be clearly considered as a motion to continue the case. Thus, the trial court could not err by failing to do so. Even if there were such a motion, we review the denial of a motion for continuance for an abuse of discretion. Apodaca v. Rios, 163 S.W.3d 297, 301 (Tex. App.--El Paso 2005, no pet.). A trial court abuses its discretion when it makes a decision without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

A motion for continuance must be in writing, state the specific facts supporting the motion, and be verified or supported by an affidavit. See Tex. R. Civ. P. 251; Blake v. Lewis, 886 S.W.2d 404, 409 (Tex. App.--Houston [1st Dist.] 1994, no writ). None of the documents that have any possible relationship to a continuance are either verified or supported by affidavit--thus, the trial court did not abuse its discretion by failing to continue the case. See Serrano v. Ryan's Crossing Apartments, No. 08-05-00325-CV, 2007 WL 1575527 (Tex. App.--El Paso May 31, 2007, no pet.); Sw. Country Enters., Inc. v. Lucky Lady Oil Co., 991 S.W.2d 490, 493 (Tex. App.--Fort Worth 1999, pet. denied).
We overrule this contention of error.

(3) Without a Reporter's Record, We Must Assume the Evidence Supports the Trial Court's Order

Clark also complains generally and briefly about the evidence. He states that the trial court's finding that he had a pattern of neglecting Y.L.C. was not supported by credible evidence and that other evidence shows lack of fitness on the part of Ivie. Clark's short ensuing argument centers entirely on Ivie's asserted lack of fitness.

Clark, as appellant, has the burden to provide us a record sufficient to show the asserted error. See Johnson v. Walker, 824 S.W.2d 184, 186 (Tex. App.--Fort Worth 1991, writ denied).
"[W]hen an appellant fails to bring a reporter's record, an appellate court must presume the evidence presented was sufficient to support the trial court's order." Willms v. Americas Tire Co., 190 S.W.3d 796, 803 (Tex. App.--Dallas 2006, pet. denied). When we have no reporter's record and no findings of fact, we assume that the evidence supports the judgment. Vickery v. Comm'n for Lawyer Discipline, 5 S.W.3d 241, 251 (Tex. App.--Houston [14th Dist.] 1999, pet. denied); see Sixth RMA Partners v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003). As Clark did not arrange to provide a reporter's record, we must assume that the evidence is sufficient to support the judgment.
We overrule this contention of error.

(4) Clark's Generic Assertion that the Trial Court Failed to "Properly File" His Motions and
Letters Does Not Adequately Present Any Issue for Appellate Review

Clark also contends that the court erred by not accepting his "motions" and "letters" to be properly "filed" so as to be heard and ruled on. There are a substantial number of letters and apparent motions from Clark that are contained within the official record of the case. To be in the clerk's record on appeal, the documents must have been filed. Clark points to no specific motion or ruling that was not filed in the trial court. Thus, he has not shown error.

It is not the proper job of this Court to create arguments for an appellant. We are restricted to addressing the arguments actually raised, not those that might have been raised. Garcia v. Robinson, 817 S.W.2d 59 (Tex. 1991). When the appellant does not provide us with argument that is sufficient to make an appellate complaint viable, we ordinarily are not called on to perform an independent review of the record and applicable law in order to determine whether the error complained of occurred. Ferguson v. DRG/Colony N., Ltd., 764 S.W.2d 874, 887 (Tex. App.--Austin 1989, writ denied); Most Worshipful Prince Hall Grand Lodge v. Jackson, 732 S.W.2d 407, 412 (Tex. App.--Dallas 1987, writ ref'd n.r.e.). We will not do the job of the advocate. Maranatha Temple, Inc. v. Enter. Prods. Co., 893 S.W.2d 92, 106 (Tex. App.--Houston [1st Dist.] 1994, writ denied); Jackson, 732 S.W.2d at 412.
We overrule this contention of error.

(5) Clark's Generic Assertion that the Trial Court Erred in Not Enforcing Prior Orders Does Not Adequately Present Any Issue for Appellate Review

Clark also contends that the court erred by not enforcing previous rulings in which Ivie was to have completed a parenting program that was required by the court May 17, 2000. The court's docket sheet states that temporary orders were entered on that date, but Clark has directed us to no provision of any relevant order in the record, nor has he shown us any effort to enforce any such ruling, or that, if such a ruling existed, Ivie did not comply with its terms. Clark has not shown error.
We overrule this contention of error.

We affirm the trial court's order.

Josh R. Morriss, III
Chief Justice

Date Submitted: August 9, 2007
Date Decided: August 24, 2007

1. The motion on which this order rests was filed March 9, 2005. Clark promptly responded and repeatedly contacted the trial court in writing, but did not appear before the court January 29, 2007, the date of the hearing on the motion. The record reflects that Clark was properly notified and that he filed an additional document with the trial court on that date. Notice of the hearing was sent October 19, 2006, and was received by Clark October 23.
2. Clark, in his pro-se brief, has not provided extensive citation either to the record or to controlling law--but did set out his arguments in an understandable fashion. Appellee's counsel, in a two-page brief, provided no citation to any authority whatsoever, and responded only to one of five issues set out by Clark.
3. "A district judge may appoint counsel to attend to the cause of a party who makes an affidavit that he is too poor to employ counsel to attend to the cause." Tex. Gov't Code Ann. § 24.016 (Vernon 2004); see Gibson, 102 S.W.3d at 712; Ex parte Munoz, 139 S.W.3d 349, 352 (Tex. App.--San Antonio 2004, no pet.).
4. We recognize exceptions to that general rule in cases involving the termination of parental rights, see Tex. Fam. Code Ann. § 107.013 (Vernon Supp. 2006); juvenile delinquency, Tex. Fam. Code Ann. § 51.10 (Vernon Supp. 2006); and court-ordered mental health services, Tex. Health & Safety Code Ann. § 574.003 (Vernon 2003). None of those situations are implicated in this case.
5. The exceptional-circumstances concept is generally mentioned, but the Texas Supreme Court declined to expressly hold that exceptional circumstances was the proper boundary for the court's discretion. See Gibson, 102 S.W.3d at 713. We have found no case--and Clark suggests none--finding an exceptional circumstance which would trigger a duty to appoint counsel in a civil case, other than the recognized constitution-based cases: termination of parental rights, juvenile delinquency, and court-ordered mental health services.

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