COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

IN THE INTEREST OF:

JONATHAN RAY VELEZ-URESTI,

A CHILD.

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No. 08-10-00182-CV

Appeal from

 288th District Court

of Bexar County, Texas

(TC # 1995-CI-13445)

O P I N I O N

Alan Uresti, appearing pro se, appeals from an order dismissing his motion to modify

conservatorship for want of prosecution. As he frames the issue, “[t]his cause on appeal . . .

involves a 15-year long battle for custody. . . .” For the reasons that follow, we affirm.

FACTUAL SUMMARY

On November 6, 1995, the trial court entered a decree of paternity establishing that Uresti

is the father of Jonathan Ray Velez-Uresti. The court entered orders appointing the child’s

parents as temporary joint managing conservators. In 2009, Uresti filed a motion to modify

seeking to be named sole managing conservator. On September 22, 2009, the trial court denied

Uresti’s request but entered additional temporary orders which established a progressive

visitation schedule. Uresti subsequently filed a motion to modify the temporary orders seeking a

standard possession order and a separate motion to modify child support. On March 25, 2010,

the trial court sustained a contest to Uresti’s affidavit of inability to pay costs and ordered him to

pay all filing fees and service costs within twenty days of the date of the order. The court set

Uresti’s motion to modify for jury trial on May 17, 2010, but Uresti did not appear. The trial
court dismissed the case because Uresti failed to appear and because he had failed to pay fees and

costs as previously ordered. ThiAs PapPpEeLalL fAolTloEw Js.U RISDICTION

Uresti raises 54 issues on appeal. Issues 1-4 relate to a December 27, 2006 order finding

Uresti in contempt and reducing child support arrearages to judgment. A contempt order is not

reviewable by appeal. Norman v. Norman, 692 S.W.2d 655, 655 (Tex. 1985); Hernandez v.

Hernandez, 318 S.W.3d 464, 467 n.1 (Tex.App.--El Paso 2010, no pet.). Contempt orders may

only be reviewed by an application for a writ of habeas corpus, if the contemnor has been

confined, or by a petition for a writ of mandamus, if the contemnor has not been confined. See

Rosser v. Squier, 902 S.W.2d 962, 962 (Tex. 1995); Ex parte Williams, 690 S.W.2d 243, 243

(Tex. 1985). To the extent Uresti is raising an issue related to the 2006 arrearage judgment, his

notice of appeal was untimely as he did not file it until June 4, 2010. See TEX.R.APP.P. 26.1. 

For these reasons, we do not have jurisdiction to review his first four issues.

In Issues 5-8, Issues 13-15, Issues 17-33, Issues 35-44, and Issues 46-49, Uresti raises

arguments related to sequential temporary orders, interlocutory rulings on multiple motions to

recuse filed by him against a laundry list of jurists, a motion to compel discovery, alleged ex 1

parte communications, and alleged judicial conspiracies designed to violate his due process rights

under the 14 Amendment of the United States Constitution. An appeal generally may be taken

th

only from a final judgment. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). 

Appeals of interlocutory orders are appealable only when authorized by statute. Jack B. Anglin

Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992); see, e.g., TEX.CIV.PRAC.&REM.CODE ANN.

§ 51.014 (West 2008). It matters not whether constitutional complaints are lodged against these

Motions to recuse were filed against Judges Janet Littlejohn, Michael Peden, Larry Noll, Barbara Nellermie, 1

Renee McElhaney, David Peeples, David Berchelmann, Sol Casseb III, and Antonio Arteaga.
pre-trial determinations. In a suit to modify support or conservatorship under the Texas Family

Code, a modification order is final and appealable. See Bilyeu v. Bilyeu, 86 S.W.3d 278, 282

(Tex.App.--Austin 2002, no pet.). The trial court has not entered a modification order because it

has dismissed the suit. There is no statutory authorization to review the interlocutory rulings of

which Uresti complains on appeal. Because we lack jurisdiction, we overrule Issues 5-8, Issues

13-15, Issues 17-33, Issues 35-44, and Issues 46-49.

DENIAL OF INDIGENCY

Issues 9-12, Issue 16, Issues 45-46, and Issues 50-51 involve the trial court’s denial of

Uresti’s indigence status. We recognize the litany of unpublished opinions articulating the

proposition that an order sustaining a contest to an affidavit of indigence is interlocutory and not

appealable. We may review an order sustaining a contest only when it is made as part of a

pending appeal from a final judgment or other appealable order. TEX.R.APP.P. 20.1; In re

Arroyo, 988 S.W.2d 737, 738-39 (Tex. 1998). Because Uresti’s modification proceeding was

dismissed for his failure to pay court costs, his complaints arise directly from the dismissal order

and are ripe for appellate review.

On February 13, 2010, Uresti filed an affidavit of inability to pay court costs. We cannot

determine how many pages were incorporated into the affidavit, nor can we ascertain whether it

was properly executed, because only the first page appears in the clerk’s record. Uresti alleged

that he was unemployed, without sufficient funds to pay court costs, owned no real estate, stocks,

bonds, life insurance policies, or other property. He was unable to borrow the money and had no

other sources of income. A contest was filed by Dinah Gaines, a staff attorney for the Bexar

County Civil District Courts. The contest stated:
The District Judge Presiding, on behalf of the Judges and the other officers which 2

are entitled or may be entitled to fees or costs of Court, movant in the above

entitled and numbered cause hereby contests the Affidavit of Inability to Pay

Costs filed by ALAN URESTI herein, and moves the court to require ALAN

URESTI to give good and ample security to cover costs of this action. 

Rule 145 governs affidavits of indigence. TEX.R.CIV.P. 145. Subsections (c) and (d)

provide that the defendant or the clerk may contest an affidavit that is not accompanied by an

IOLTA certificate which explains that the party is represented by an attorney who is providing 3

free legal services without contingency because of the party’s indigence and the attorney is

providing services either directly or by referral from a program funded by the IOLTA program. 

Because Uresti averred that he was not being assisted in any way by an attorney, the IOLTA

prohibition against contests does not apply.

A hearing on the motion was conducted on March 25, 2010. Gaines announced that she

represented the county and that she had filed a contest to the affidavit on behalf of the district

clerk’s office and anybody interested in court costs. Uresti did not challenge her announcement

or otherwise complain that the contest had been filed on behalf of the judges rather than the

district clerk. 

Uresti then offered his own evidence to the court:

Let the record show that Exhibit 1 of my amended affidavit of inability clearly 4

shows that I am receiving government entitlement, therefore the contest is moot.

One might infer that “other officers” entitled to payment of costs includes the district clerk, who is an elected 2

official. While we do not proclaim to be well versed in the common practices of the district clerk’s office or the Bexar

County Council of Judges, we do recommend that the language of standard contests be revisited.

 IOLTA is the acronym for Interest on Lawyers Trust Accounts. 3

Neither the amended affidavit nor the exhibit is contained in the clerk’srecord. Apparently, it was not offered 4

as an exhibit during the hearing. Nevertheless, all parties and the court clearly were addressing the amended affidavit. 

Both the Texas Supreme Court and the San Antonio Court of Appeals, from which this case was transferred, have

determined that affidavits of indigence may be amended. In re J. W., 52 S.W.3d 730, 732 (Tex. 2001); American Comm.

Telecomm., Inc. v. Commerce North Bank, 660 S.W.2d 570, 571 (Tex.App.–San Antonio 1983, order).
. . .

That means a party receiving governmental entitlement based on indigency shall

not be required to pay court costs. . . . The Court must comply with the Texas

statutes and the Texas Rules of Civil Procedure Rule 145, otherwise the Court is

violating my civil rights under Federal Chapter 42, Section 1983 and denying me

my rights to due process, equal rights, and its abuse of discretion would be based

on sexual discrimination pertaining to one rules [sic] for attorney and mothers and

another discriminating rules [sic] for pro se fathers. 

Gaines then responded that the amended affidavit did not affirmatively state that Uresti was

receiving food stamps. Instead, “[h]e states I will be applying for government assistance in the

form of Medicaid and food stamps because of my indigent state of life.” [Emphasis added]. She

also challenged that the exhibit was not incorporated into the affidavit, was not sworn to, and was

not proper evidence of indigence. Uresti offered no further evidence and Gaines began crossexamination. Uresti testified that he lived with his mother on McCauley street and denied

owning any property on Menefee Boulevard. He admitted inheriting the Menefee property from

his father. The will and Order Admitting Will to Probate as Muniment of Title were admitted

into evidence without objection. Uresti testified that his current driver’s license reflected his

address as McCauley but admitted that the former license which had expired July 31, 2009,

reflected the Menefee property as his home address. When asked, Uresti claimed he had no idea

who resided at 1634 Menefee or whether anyone was living there at all. He admitted selling the

home to “Tony something or other.” He did not recall the name, the date of sale, or the sales

price.

Q: Now, Mr. Uresti, who pays the property taxes on 1634 Menefee?

A. I don’t know, whoever. I guess Tony.

Q: And is Tony related to you?

A: No, he is not.
Q: Who is John Anthony Romo?

A: I have no idea.

Gaines then introduced a child support order entered on July 28, 2009, which indicated Uresti’s

address as 1634 Menefee.

Uresti later testified that he was not disabled, attended school part-time, had previously

worked in construction, but was not currently employed. The previous year he had earned

$8,000. He was looking for a job but had only begun exploring employment opportunities two

weeks prior. He continued to deny ownership of the Menefee property even after the court

admitted a release and waiver of vendor’s lien executed by Uresti’s mother as lienholder which

recited that, “[t]he Lienholder acknowledges that the aforementioned property was deeded to

Alan Uresti through the Will and Last Testament of Albert Rene Uresti and this Release and

Waiver of Vendor’s Lien also applies to Alan Uresti who has completed payment of the . . . Note

of even date in the principal amount of $15,000 . . . .” The trial court then struck the affidavit of

inability and ordered Uresti pay the court costs of $612 before proceeding in the case. This

requirement is consistent with Rule 145(d) which mandates that no further legal action may be

taken by the party until payment of costs or upon leave of court. TEX.R.CIV.P. 145(d). In its

written order, the trial court found that Uresti was able to afford costs.

On April 26, 2010, Uresti filed a motion for reconsideration, in which he challenged the

ability of the judges to file a contest, and attached an exhibit reflecting that his household was

eligible for food stamps for the period of March through June of 2010. According to the clerk’s

record, the motion was set for hearing on May 11, 2010. There is no reporter’s record of a

hearing on that date. On May 10, Uresti filed a second affidavit of indigence. This document

offered no explanation as to why it was filed one day before the scheduled hearing on the motion
for reconsideration. 

Against this backdrop, we consider Uresti’s specific complaints. Issue 9 asks whether

Gaines’ conduct in filing a contest on behalf of the judges violated his rights. We overrule Issue

9 because Uresti did not object at the initial hearing and failed to pursue a hearing on his motion

for reconsideration. TEX.R.APP.P. 33.1 (before a complaint can be a prerequisite for appellate

review, the record must show that (1) the complaint was raised before the trial court by timely

request, objection, or motion that “stated the grounds for the ruling that the complaining party

sought from the trial court with sufficient specificity to make the trial court aware of the

complaint, unless the specific grounds were apparent from the context,” (2) complied with the

requirements of the rules of procedure or evidence, and (3) that the trial court ruled or refused to

rule on the request). This is consistent with the core principle underlying error-preservation

requirements -- the trial court should be given the opportunity to correct potential errors before

the case proceeds on appeal. See, e.g. In re C.O.S., 988 S.W.2d 760, 765 (Tex. 1999). “[O]ur

civil rules of procedure and our decisions thereunder require a party to apprise a trial court of its

error before that error can become the basis for reversal of a judgment.” Id. In Issues 10 and 11,

Uresti complains that his rights were violated when Judge Berchelmann presided at the hearing

on the contest when he was a party to the contest. We overrule both of these issues for the same

reason -- Uresti lodged no objection. TEX.R.APP.P. 33.1.

Issues 12 and 50 opine that if Judge Berchelmann “illegally entered the contest” as a comovant, he was constitutionally disqualified and the order is “Null, Void and Moot and/or

voidable” as a result. Nothing in the record before us demonstrates that Judge Berchelmann was

a co-movant. The contest filed by Gaines stated that it was filed by “[t]he District Judge

Presiding, on behalf of the Judges and the other officers which are entitled or may be entitled to
fees or costs of Court.” We have combed the record and can find no evidence that Judge

Berchelmann is, was, or may be entitled to court costs and Uresti points us to none. We overrule

Issues 12 and 50. Issue 16 is a restatement of the previous issues, asking whether “various

judges violate[d] Appellant’s rights by presiding over the Appellant’s case after having been coMovants in the Contest to the Appellant’s Affidavit of Indigence?” He does not identify the

other various judges nor does he direct us to evidence that any judge was entitled to court costs. 

For these reasons, we overrule Issue 16. 

Issue 45 contends that: 

After an illegal Contest against the Appellant’s Affidavit of Indigence was entered

and granted by the Co-Movant Judges, a second Affidavit of indigence was filed

by the Appellant which was never contested. Did the Court err when it dismissed

the Appellant’s case when there was no contest against Appellant’s Second

Affidavit of Indigence, nor a ruling on whether or not the Appellant could proceed

forma pauperus [sic]? 

In Issue 51, he restates his complaint to argue that “after Judge Berchelmann entered his illegal

and Tampered Order, was not his Order also Moot as the result of the filing Second Affidavit of

Inability [sic]?” In short, Uresti maintains that because no contest to the second affidavit was

filed, he was entitled to proceed as an indigent from the date of filing forward. We reject this

argument for four reasons.

First, the Rules of Appellate Procedure, unlike the Rules of Civil Procedure, contain a

deadline for filling a contest to an affidavit of indigence. TEX.R.APP.P. 20.1(e) (contest must be

filed on or before the date set by the clerk if the affidavit was filed in the appellate court, or

within ten days after the date the affidavit was filed if it was filed in the trial court). The mere

filing of the second affidavit did not absolve Uresti from pursuing his motion for reconsideration

which was scheduled for hearing the very next day. Apparently, he chose not to do so. 
Secondly, the Rules of Civil Procedure envision that the affidavit will be filed with the original

petition. TEX.R.CIV.P. 145 (a); Baughman v. Baughman, 65 S.W.3d 309, 312 (Tex.App.--Waco

2001, pet. denied). Third, the Rules of Civil Procedure do not contemplate the sequential or

successive filing of affidavits of indigence. We can envision the tribulation and turmoil trial

courts would endure if a party, whom a trial court had already found not to be indigent, engaged

in the filing of repetitive motions. Fourth, since there was no specific deadline for filing a

contest, one could be filed up until the date of the next regularly scheduled hearing. 

TEX.R.CIV.R. 145(d)(if the court finds at the first regular hearing that the party is able to afford

costs, the party must pay them). The next regular hearing was scheduled for May 11 and the

subject was Uresti’s motion for reconsideration. For whatever reason, and it was Uresti’s

responsibility to secure a hearing, it did not take place. For these reasons, we overrule Issues 45

and 51. 

Finally in Issue 46, Uresti complains that Judge Martha Tanner failed to recognize that

while Appellant was confined in jail, he was obviously without financial resources and therefore

his second affidavit of indigence was facially valid. We reiterate that it was filed on May 10. 

The case was set for a jury trial on May 17 and was dismissed on that day (1) because Uresti

failed to appear, and (2) because he had failed to pay court costs as previously ordered. 

Throughout his brief, Uresti insists that he failed to appear because he was in jail. The record 5

does contain a child support contempt criminal release order which provides that a hearing was

held on May 27, that Uresti appeared by jail video and by attorney. The order recites:

1. An Arrest Warrant/Commitment Order/Capias was issued against Uresti on March 22;

In his brief, Uresti alleges that he “was arrested in presiding court when he appeared on his motion to reverse

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the judges [sic] ruling’s[sic] to deny his Affidavit of Inability to pay Court Cost.” He provides no record reference. That

hearing was scheduled for May 11.
2. It was executed on or about May 11; and

3. Uresti had been confined in the Bexar County Jail for 28 days.

There are obvious internal inconsistencies in this order. If Uresti had been in jail for 28 days, he

would have been taken into custody at least by May 1. Yet he filed his pro se second affidavit of

indigence on May 10. That affidavit was signed and notarized on May 7. More troublesome is

that the release order affirmatively states that Uresti was represented by counsel. His second

affidavit averred that he had no legal representation. In his brief, Uresti claims that he was

represented by a public defender. His record reference relates to the release order itself which

reflects legal representation but no designation of whether counsel was court-appointed or

retained. Thus, this document does not establish the facial validity of his indigence. We overrule

Issue 46.

DISMISSAL FOR WANT OF PROSECUTION

Finally, in Issues 34, 45, 46, 52, 53, and 54, Uresti challenges the trial court’s dismissal of

his motion to modify for want of prosecution. He directs us to opinions from the 8th Circuit

Court of Appeals, which are not binding on this court, as well as two United States Supreme

Court cases holding pro se litigants to less stringent standards than formal pleadings drafted by

lawyers. See Boag v. MacDougall, 454 U.S. 364, 365, 102 S.Ct. 700, 70 L.Ed.2d 551 (1982),

citing Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1982). His reliance is

misplaced, however, because these opinions only address whether a pro se inmate adequately

stated a federal cause of action for mistreatment during incarceration. They have no bearing on

the challenges Uresti brings in this court.

Our review is guided by Rule 38.1(i), which requires that an appellant's brief contain “a

clear and concise argument for the contentions made, with appropriate citations to authorities and
to the record.” TEX.R.APP.P. 38.1(i). Although appellate courts liberally construe briefs by pro

se litigants, we must hold them to the same standards as licensed attorneys and require them to

comply with all applicable laws and rules of procedure. Stewart v. El Paso County Sheriff’s

Department, 324 S.W.3d 321, 323 (Tex.App.--El Paso 2010, pet. denied), citing Sterner v.

Marathon Oil Company, 767 S.W.2d 686, 690 (Tex. 1989). When a party fails to cite to the

record or to legal authority in their brief, nothing is presented for review. Republic Underwriters

Insurance Company v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex. 2004); Stewart, 324 S.W.3d at

323.

Because Uresti has failed to comply with Rule 38.1(i) of the Texas Rules of Appellate

Procedure, we overrule Issues 34, 45, 46, 52, 53, and 54 as inadequately briefed. We pause to

note, however, that the dismissal order was valid on the basis of Uresti’s failure to pay costs. We

do not address his allegation that he was incarcerated and could not appear at trial. The 6

judgment of the trial court is affirmed.

January 25, 2011 

ANN CRAWFORD McCLURE, Chief

Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.

 The record reflects that Uresti did appear by jail video at the conditional release hearing. Litigants cannot 6

be denied access to the courts simply because they are inmates. In re Z.L.T., 124 S.W.3d 163,165 (Tex. 2003), citing

Hudson v. Palmer, 468 U.S. 517, 523, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). But an inmate does not have an absolute

right to appear in person in every court proceeding. Z.L.T., 124 S.W.3d at 165, citing Zuniga v. Zuniga, 13 S.W.3d 798,

801 (Tex.App.--San Antonio 1999, no writ). The inmate's right of access to the courts must be weighed against the

protection of our correctional system's integrity. See Jones v. Jones, 64 S.W.3d 206, 210 (Tex.App.--El Paso 2001, no

pet.). As the Supreme Court articulated in Z.L.T., it is the incarcerated inmate who bears the burden to demonstrate why

his appearance is necessary. There, the inmate filed a request for a bench warrant, yet the court found that he failed to

make the requisite showing that his presence was necessary. Z.L.T., 124 S.W.3d at 166. Consequently, the trial court

was not required, on its own, to seek the necessary information. Id. Here, there is nothing in the record to suggest Uresti

sought a bench warrant or other alternative means, such as video conferencing, by which to participate in either the

hearing on the motion for reconsideration or the jury trial itself. Jones, 64 S.W.3d at 210-11.