CONCURRING OPINION

No. 04-11-00294-CV

IN THE INTEREST OF D.C.C., et al., Children

From the 131st Judicial District Court, Bexar County, Texas

Trial Court No. 2010-PA-00389

Honorable Charles E. Montemayor, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Concurring Opinion by: Rebecca Simmons, Justice

Sitting: Catherine Stone, Chief Justice

Sandee Bryan Marion, Justice

Rebecca Simmons, Justice

Delivered and Filed: December 7, 2011

I concur with the majority that the trial court acted within its discretion, but I write 

separately to reinforce the principle that litigants should not be denied access to the courts simply 

because they are incarcerated. See In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003). 

Unfortunately, this principle is sometimes disregarded in a trial court’s rush to justice. The 

opening sentence of the majority opinion reflects a regrettable result of this disregard: “Because 

appellant was incarcerated she did not participate in the termination trial.” Because she was not 

present, she was unable to present any evidence to oppose the termination of her parental rights 

to her two children. 

Appellant was not present at trial because, a few days before trial, she was moved from 

the Bexar County jail to another facility without counsel’s knowledge. Counsel claimed that he 

was unable to secure her appearance by video as he had planned. Because counsel did not file a 

continuance or make any record of the circumstances surrounding his client’s absence or her 

need to testify, I concur in the judgment of this court but also note that there is a distinct 

difference between a parental termination case and other civil cases that do not have a 
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constitutional dimension. It is this constitutional dimension that is a factor that should weigh 

heavily when assessing an inmate’s participation in a termination proceeding. Had she been 

present at the trial, the mother would have heard the State’s evidence and could have responded 

with evidence that her attorney simply could not provide. She would have had the opportunity to 

rebut the State’s assertions and could have offered her own testimony regarding her attitudes, her 

willingness to comply with court orders, and her love for and commitment to her children. Her 

testimony may not have changed the court’s decision, but it would have provided the court with 

more complete information and would have given the mother an opportunity to be heard.

In its opinion the majority relies on In re Z.L.T., which held that an inmate seeking to 

appear in a proceeding must present factual information to the trial court to assess the necessity 

of her appearance. Significantly, In re Z.L.T. involved the denial of a request for a bench 

warrant. The request for a bench warrant provides an opportunity for the inmate to educate the 

court before trial on the relevant factors that were discussed in In re Z.L.T. However, in this 

case, appellant’s attorney claimed he did not know she was going to be unavailable until 

immediately before trial; thus there was limited opportunity to obtain or provide evidence of the 

factors recited in In re Z.L.T. However, despite the hardship, the mother’s attorney could have 

filed a written motion for continuance or at least made a record of the specific reasons justifying 

his client’s testimony and appearance. See TEX. R. CIV. P. 251 (permitting a continuance for 

“sufficient cause supported by affidavit”); Doyle v. Doyle, 482 S.W.2d 285, 286 (Tex. Civ. 

App.—Beaumont 1972, no writ) (sustaining the denial of an absent inmate’s motion for 

continuance in a divorce proceeding where counsel showed only that the husband could not 

appear because he was an inmate and failed to “show what matters [the inmate] would testify to 

if he took the stand as a witness”).
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Unfortunately, the mother’s attorney failed to request or provide any details to support a 

continuance, and the court chose to proceed with trial. However, I suggest that the decision to 

proceed with termination without parental participation should not be taken lightly. The minimal 

costs to the judicial and correctional systems to delay the trial until the mother could be 

present—even if only by remote appearance—seem to be outweighed by the mother’s interest in 

personally participating in a trial of such import. Although the trial court acted within its 

discretion, I believe the better practice here—even in the face of her attorney’s failure to 

adequately present evidence to support his “not ready” announcement—would have been to 

postpone the trial until the mother could be present in some manner.

For the reasons given above, I respectfully concur.

Rebecca Simmons, Justice