COURT OF A PPEAL S EI GHTH D I STRI CT OF TEXAS ELPASO, TEXAS

I N THE I NTEREST OF: J ONATH AN RAY VEL EZ -URESTI , A CHI L D. § § § § § § No. 08-10-00182- CV

Appea l from 288th District Court of B exar County , Texas (TC # 1995-CI -13445)

O P I N I O N Alan Ur esti, appea

ring pro se , appea ls from an orde r dismissing his motion t o modify

conser vatorship for w ant of prose cution. As he fr ames the issue, “ [t ]hi s cause on appea l . . . involves a 15-year

long ba ttle for custody . . . .” F or the re asons that follow, we aff irm. F ACTUAL SUMMA RY On Novembe r 6, 1995, the trial c ourt enter ed a de cre e of paternity establishing that Uresti is the father

of Jonathan Ray

Velez-Ur esti. The cour

t entere d order s appointing the child’s pare nts as temporar

y joint manag ing c onservators. In 2009, Ure sti filed a motion to modi fy seekingto be named sole manag ing c onservator. On September 22, 2009, the trial cour

t denied Ure sti’s request but ente red a dditional temporary order s which established a prog ressive visitation schedule. Ure sti subsequently filed a motion to modify the tempora

ry order s seekinga standard posse ssion order a nd a sepa rate motion to m odify

child support. On Marc h 25, 2010, the trial cour

t sustained a conte st to Uresti’s aff idavit of inability

to pay costs and orde red him to pay all filing f

ees a nd service costs within twenty day s of the date of the orde r. The c ourt set Ure sti’s moti on to modify for jury trial on May

17, 2010, but Uresti did not appea r. The tr ialcourt dismissed the ca se bec ause U resti fa iled to appea r and be cause he had f

ailed to pay

fee s and costs as pre viously

order ed. Thi

A s P ap P p E e L al L f A ol T lo E w J s. U RISDICTION Ure sti raises 54 issues on appe al. I ssues 1-4 re late to a De cembe r 27, 2006 orde r finding Ure sti in contempt and reduc ing c hild support arre ara g es to judg ment. A contempt orde r is not revie wable by

appea l. Norman v. Norman , 692 S.W .2d 655, 655 (Tex. 1985); Hernande z v. Hernande z , 318 S.W .3d 464, 467 n.1 (Tex.App.--El Paso 2010, no pet.) . Contempt orders may only be re viewed by

an application for a wr it of habea s corpus, if the c ontemnor has be en confine d, or by

a petition for a

writ of mandamus, if the contemnor ha s not been c onfined. See Rosser v. Squier , 902 S.W .2d 962, 962 (Tex. 1995); Ex parte W illiams , 690 S.W .2d 243, 243 (Tex. 1985). To the extent Uresti is raising an issue re lated to the 2006 ar rea rag e judg ment, his notice of a

ppeal wa s untimely

as he did not file it until J une 4, 2010. SeeT E X .R.A P P .P. 26.1. For these re asons, we do not ha ve jurisdiction to reviewhis first four issues. In I ssues 5-8, I ssues 13-15, I ssues 17-33, I ssues 35-44, and I ssues 46-49, Ur esti raises arguments relate d to sequential tempora ry order s, interlocutory

ruling s on multi ple motions to

rec use filed by

him ag ainst a laundry

list of jurists , a motion to compel discovery , alleg ed ex

1 parte communications, and a lleg ed judicial conspira cies de signe d to violate his due proce ss rig hts under the 14 Amendment of the United States Constit ution. An appea l ge nera lly may be take n t h only from a f inal judgme nt. See Lehm ann v. Har-Con Corp ., 39 S.W .3d 191, 195 (Tex. 2001). Appea ls of interlocutory

order s are appea lable only when a uthorized by

statute. Jack

B. Anglin Co., Inc. v. Tipps , 842 S.W .2d 266, 272 (Tex. 1992); see, e .g. , T E X .C I V .P R A C .&RE M .C O D E A

N N . § 51.014 (West 2008). I t matters not whether constitutional complaints are lodg ed ag ainst these

Motio ns to recuse w ere filed agains t Judges Ja net Lit tlej ohn, Michael P eden, Larry Noll, Bar bar a Nellerm ie, 1 Renee McElhaney , David P eeple s, David B erchelm ann , So l Casseb II I, and Antonio Arteaga.pre- trial deter minations. I n a suit to modify support or conse rvatorship unde r the Te x as F amily Code, a modification order is final a nd appea lable. See Bilyeu v . Bilyeu , 86 S.W .3d 278, 282 (Tex.App.--Austin 2002, no pet.). T he trial c ourt has not enter ed a modific ation order beca use it has dismissed the suit. There is no statutory authorization to review the inter locutory ruling s of which Ur esti complains on appea l. Be cause we lac k jurisdiction, we over rule I ssues 5-8, I ssues 13-15, I ssues 17-33, I ssues 35-44, and I ssues 46-49. DENIAL OF IN DIG ENCY I ssues 9-12, I ssue 16, I ssues 45-46, and I ssues 50-51 involve the tria l court’s de nial of Ure sti’s indigenc e status. We rec og nize the litany of unpublished opinions articulatingthe proposition that an order

sustaining a

contest to an a ffidavit of indig ence is interlocutory and not appea lable. We may

revie w an or der sustaininga conte st only when it is made a s part of a pendingappea l from a f

inal judgme nt or other a

ppeala ble orde r. T EX .R.A P P .P. 20.1; In re Arroyo , 988 S.W .2d 737, 738-39 (Te x . 1998). B eca use Ure sti’s modification proce edingwas dismiss ed for

his failure to pa

y court c osts, his complaints arise direc tly from the dismissal order and ar e ripe for a

ppellate r eview. On Fe bruar

y 13, 2010, Ure sti filed an af fidavit of inability

to pay court c osts. W e ca

nnot deter mine how many

pag es we re inc orporated into the aff idavit, nor ca

n we a scer

tain whether

it was prope rly

executed, bec ause only

the first pag e appe ars in the c lerk’s r ecor d. Ure sti alleg ed that he wa s unemploy ed, without sufficie nt funds to pay court c osts, owned no re al estate , stocks, bonds, life insuranc e policies, or othe r prope rty . He wa s unable to borr ow the money and had no other sourc es of income . A contest wa s filed by Dinah Ga ines, a staf

f attorne y for the B exar County Civil District Courts. The contest stated:The District Judge Pre siding, on be half of the J udg es and the other off icer s which 2 are entitled or may

be entitled to fe es or c osts of Court, movant in the above entitled and number ed ca use her eby

contests the Af

fidavit of Inability

to Pay Costs filed by

ALAN URESTIhere in, and moves the c ourt to require ALAN URESTIto give g ood and ample se curity to cover costs of this action. Rule 145 g overns a ffidavits of indig ence . T E X .R.C I V .P. 145. Subs ections (c ) and ( d) provide that the de fenda

nt or the cle rk may

contest an a ffidavit that is not acc ompanied by an I OL TA cer

tificate which explains that the party is repre sented by

an attorne y

who is providing 3 fre e leg al servic es without conting ency beca use of the pa

rty ’s indige nce a

nd the attorne y

is providing service s either dire ctly or by ref err al from a

prog ram funde d by

the I OL TA program. Be cause Ure sti averr ed that he w as not beingassisted in any way by an attorne y , the I OL TA prohibition ag ainst contests does not apply

. A hea ringon the motion was conduc ted on Marc h 25, 2010. Gaines a nnounced that she repr esente d the county

and that she ha d filed a c ontest to the aff idavit on behalf of

the district cler k’s offic e and a

ny body interested in c ourt costs. Ure sti did not challeng e her announce ment or otherw ise complain that the c ontest had bee n filed on beha lf of the judg es rather than the district clerk. Ure sti then offer ed his own evide nce to the c ourt: L et the re cord show that Ex hibit 1 of my amende d aff

idavit of inability

clea rly 4 shows that Iam re ceivingg overnme nt entitlement, theref ore the contest is moot.

One m ight inf

er that “ other offi cers” entitled to paym ent of costs inclu des the district clerk, w ho is an elected 2 offi cial. While w e do not pr oclaim to be w ell versed in the comm on pr actices of the district clerk’s offi ce or the Bexar County Council of Judges, w e d o r ecomm end that the lang uag e o f stan dar d c ontests be r evisit ed. IOLT A is the acro ny

m for I nterest on Law

y ers T rust A ccounts. 3 Neither the am ended aff idavit nor the exh ibit is contained in the clerk’s reco rd

. A pp arently , it w as not offered 4 as an exh ibit duringth e hearing

. Nevertheless, all par ties and the court clearly w ere add ressingth e am ended aff idavit. Bo th the T exas Suprem e Court and the San Antonio Court of A pp ea l s, fr o m whi c h this case w as transf err ed, hav e deter m ined that aff

idavits of indigen ce m ay be am ended. In re J. W

. , 52 S.W. 3d 73 0, 73 2 (T ex. 20 01 ); American Comm. Telecomm ., I

nc. v. Commerce North Ba nk , 6 60 S.W .2d 57 0, 57 1 ( T ex.A pp .–San Antonio 1 98 3, or der ).. . .

That mea ns a par ty rec eiving g overnme ntal entitlement based on indig ency shall not be re quired to pay

court c osts. . . . The Court must comply with the Texas statutes and the Te x as Rules of Civil P roce dure Rule 145, other wise the Court is violating my

civil rig hts under F eder al Chapter 42, Sec tion 1983 and denying me my rig hts to due proce ss, equal rig hts, and its abuse of discr etion would be base d on sexual discrimination pertaining to one rules [sic] for attorney and mothers a

nd another discriminating r

ules [si c] for pro se fathe rs. Gaines the n responde d that the amende d aff idavit did not affirmatively state that Ure sti was

rec eiving food stamps. Instead, “ [h] e states I will be applying for g overnme nt assistance in the form of Me dicaid and f

ood stamps beca

use of my indige nt state of life.” [Emphasis added]. S he also cha lleng ed that the e x hibit was not incorporated into the aff idavit, was not sworn to, and w as not proper e vidence of indig ence . Ure sti offere d no further evidenc e and G aines be g an cr ossexamination. Uresti testified that he lived with his mother on McCauley street a nd denied owning any

proper ty on Menef

ee B oulevar d. He a dmitted inheriting the Me nefe e prope rty from his father . The will and Or der A dmitti ng Wil l to Probate as Muniment of Title we re a dmitted into evidence without objection. Uresti testified that his curr ent driver ’s license ref lected his addre ss as McCauley

but admitted that the former license which had e x pired July 31, 2009, ref lected the Menef

ee pr operty

as his home addr ess. When asked, U resti claimed he had no idea who re sided at 1634 Mene fee or whe ther a ny one wa s living there at all. He a dmitted selling the home to “Tony

something or

other.” He did not re call the name, the date of sale, or the sales price

. Q: Now, Mr. Ur esti, who pay s the proper ty taxes on 1634 Menefe e? A. I don’t know, whoe ver. I

g uess Tony

. Q: And is Tony

related to y ou? A: No, he is not.Q: Who is J ohn Anthony Romo? A: Ihave no ide a. Gaines the n introduced a

child support order

enter ed on Jul y

28, 2009, which indicate d Ure sti’s addre ss as 1634 Menef

ee. Ure sti later testified that he w as not disabled, attende d school part- time, had pre viously worke d in construction, but was not cur rently employ ed. The previous y ear he had e arne d $8,000. He wa s looking for a job but had only

begun exploring employ

ment opportunities two

wee ks prior. He continued to deny owner ship of the Mene fee proper ty even a fter the court admitted a re lease and wa iver of ve ndor’s lien e x ecute d by Ure sti’s mother as lienholder which

rec ited that, “[t] he L ienholder a cknowledg es that the a fore mentioned prope rty was de eded to Alan Ur esti throug h the Will and L ast Testame nt of Albert Rene Ure sti and this R elea se and Waiver of Ve ndor’s L ien also applies to Alan Uresti who has c ompleted pay ment of the . . . Note of eve n date in the pr incipal amount of $15,000 . . . .” The trial c ourt then struck the aff idavit of inability and orde red U resti pay

the cour t costs of $612 befor e proc eedingin the case . This require ment is consistent with Rul e 145(d) which mandates that no furthe r leg al ac tion may be taken by the par ty until pay ment of costs or upon lea ve of c ourt. T E X .R.C I V .P. 145(d). In its written orde r, the trial c ourt found that Ur esti was able to affor d costs. On April 26, 2010, Ure sti filed a motion for re consideration, in which he cha lleng ed the ability of the judg es to file a c ontest, and attac hed an e x hibit reflec ting that his household wa s elig ible for f

ood stamps for the pe riod of Mar ch throug h J une of 2010. A ccor ding to the c lerk’s

rec ord, the motion was set for hear ing on Ma

y 11, 2010. There is no reporte r’s re cord of a hear ing on that date. On Ma y 10, Ure sti filed a sec ond aff idavit of indige nce. T his document offe red no e x planation as to why it was filed one da

y befor e the sc heduled he aringon the motionfor r econside ration.

Ag ainst this backdrop, we consider Uresti’s spec ific complaints. I ssue 9 asks whe ther Gaines’ conduct in filing a conte st on behalf of the judg es violated his rights. W e over rule I ssue 9 beca use Ure sti did not object at the initial hea ring and fa iled to pursue a he aring on his moti on for r econside ration. T E X .R.A P P .P. 33.1 (bef ore a complaint can be a pre requisite for appellate revie w, the re cord must show that (1) the complaint was r aised be fore the trial cour t by timely reque st, objection, or motion that “stated the g rounds for the ruling that the complainingparty soug ht from the trial c ourt with sufficient spe cificity to make the tria l court aw are of the complaint, unless the spec ific g rounds wer e appa rent fr om the context,” (2) complied with the require ments of the rule s of proc edure or evide nce, a nd (3) that the tr ial court rule d or re fused to rule on the r equest). T his is consistent with t he cor e princ iple underlying e rror -pre servation require ments -- the tria l court should be g iven the opportunity to corre ct potential er

rors be fore the ca se proc eeds on a

ppeal. See, e .g. In re C.O.S. , 988 S.W .2d 760, 765 (Tex. 1999). “[O]ur civil rules of proc edure and our de cisions thereunde r re quire a party to apprise a

trial court of

its

err or bef ore tha t error can be come the ba sis for re versa l of a judg ment.” Id. In I ssues 10 and 11, Ure sti complains that his rights wer e violated whe n J udg e B erc helmann pre sided at the he aring on the contest whe n he wa s a par ty to the contest. We overr ule both of these issues f

or the same

rea son -- Ur esti lodge d no objection. T E X .R.A P P .P. 33.1. I ssues 12 and 50 opine that if J udg e B erc helmann “illeg ally enter ed the c ontest” as a

comovant, he wa s constitutionally disqualified and the or der is “Null, Void and Moot and/or voidable” a s a re sult. Nothing in the re cord be fore us demonstrates that Judge Be rche lmann was

a co- movant. The c ontest filed by Gaines state d that it was filed by “[t] he District Judge Presiding, on be half of the J udg es and the other off icer s which ar e entitled or ma y be entitled tofee s or costs of Court.” We have combe d the re cord a nd can f ind no evidence that J udg e Be rche lmann is, was, or may be entitled to cour

t costs and Ure sti point s us to none. We overrule I ssues 12 and 50. I ssue 16 is a re statement of the pr evious issues, asking whether “various judge s violate[d] Appellant’s r ights by presidingover the Appellant’s c ase a fter ha ving be en coMovants in the Contest to the Appellant’s Aff idavit of Indige nce?” He does not identify the other va rious judge s nor does he direc t us to evidence that any judge was e ntitled to court costs. For these re asons, we ove rrule I ssue 16. I ssue 45 contends that: After an illeg al Contest ag ainst the Appellant’s A ffidavit of Indige nce w as ente red and g rante d by

the Co-Movant Judges, a second A ffidavit of indig ence was filed by the Appellant whic h was ne ver c ontested. Did the Court er r whe n it dism issed the Appellant’ s case when ther e wa s no contest ag ainst Appellant’s Sec ond Affida vit of I ndige nce, nor

a rulingon whether

or not the Appe llant could proce ed forma pa uperus [sic]? In I ssue 51, he r estates his complaint to argue that “a fter Judge Be rche lmann enter ed his illeg al and Tampere d Orde r, wa s not his Order a lso Moot as the result of the f iling Second A ffidavit of Inability [si c]? ” I n short, Ure sti maintains that because no contest to the sec ond aff idavit was filed, he w as entitled to proce ed as a n indige nt from the date of filing forwa rd. We reje ct this argument for f

our re asons. First, the Rules of A

ppellate Proc edure , unlike the Rules of Civil P roce dure, c ontain a deadline f or filling a

contest to an a ffidavit of indig ence . T E X .R.A P P .P. 20.1(e) (conte st must be filed on or be fore the date se t by the cler k if the af fidavit was f

iled in the appellate court, or within ten day s after

the date the aff

idavit was filed if it wa s filed in the trial cour t). The mer e filing of the sec ond aff

idavit did not absolve Uresti fr om pursuing his motion for re consideration which wa s scheduled f

or hea ringthe ver

y next day . Appar ently , he chose not to do so.Secondly , the Rules of Civil P roce dure e nvision that the affidavit will be filed with the orig inal

petition. T E X .R.C I V .P. 145 (a) ; Baughman v. Baughm an , 65 S.W .3d 309, 312 (Tex.App.--Waco 2001, pet. denied) . Third, the Rules of Civil Procedure do not contemplate the se quential or

succe ssive filing of

aff idavits of indige nce. We c an envision the tribulation and turmoil trial courts would endur e if a

party , whom a trial c ourt had a lrea dy found not to be indig ent, eng ag ed in the filing of

repe titive moti ons. Fourth, since there was no spec ific dea dline for f iling a contest, one c ould be filed up until the date of the next reg ularly

schedule d hearing. T E X .R.C I V .R. 145(d)( if the cour t finds at the first re g ular he aringthat the par ty is able to aff

ord costs, the par

ty must pay them). The ne x t reg

ular he aringwas sche duled for Ma y 11 and the subject wa s Uresti’s motion for re consideration. For whatever rea son, and it was Ur esti’s responsibility

to secure a hea

ring , it did not t ake pla ce. F or these r easons, we overr ule I ssues 45 and 51. Finally

in I ssue 46, Ure sti complains that J udg e Mar tha Tanne r fa iled to rec og nize that while Appellant wa s confined in jail, he w as obviously without financial re source s and there fore his second af

fidavit of indig ence was fa cially valid. We reiterate that it was filed on Ma y 10. The c ase w as set for

a jury trial on May

17 and wa s dismis sed on that day (1) be cause Ure sti failed to a ppear , and (2) beca

use he ha d failed to pa

y court c osts as previously order ed. Throug hout his brief, Ure sti insi sts that he failed to a ppear beca use he w as in jail. The re cord 5 does conta in a child support contempt cr iminal relea se orde r which pr ovides that a he aringwas held on May

27, that Ure sti appear ed by jail video and by

attorney . The orde r re cites: 1. An Arr est Warra

nt/Com mitment Order/Capias wa s issued ag ainst Uresti on Mar ch 22;

In his br ief, Uresti alleges that he “ w as arr ested in pr esiding court w hen he app eared on his m otio n to reverse 5 the j udges [sic] ruling ’s [sic] to deny his A ff idavit of Inability to pay Court Cost.” He pr ovides no reco rd reference. T hat hearingw as scheduled for May 11

.2. I t was executed on or about May

11; and 3. Ure sti had been c onfined in the B exar County J ail for 28 da

y s. There are obvious internal inconsistencies in this order . I f Ure sti had been in jail for 28 day s, he would have be en take n into custody at least by

May 1. Yet he f

iled his pro se second a ffidavit of indige nce on Ma

y 10. That af

fidavit was sig ned and nota rized on May

7. More trouble some is that the re lease order

aff irmatively

states that Ure sti was repr esente d by counsel. His sec ond aff idavit aver

red that he had no leg al re prese ntation. I n his brief, Ur esti claims that he wa s repr esente d by

a public def

ender . His rec ord re fer ence relates to the rele ase or der itself which ref lects leg al re prese ntation but no designation of whether counsel wa s court-a

ppointed or reta ined. Thus, this document does not establish the fa cial validity of his indige nce. We ove rrule I ssue 46. DISMISSAL F OR WANT OF P ROSECUTIO N Finally , in I ssues 34, 45, 46, 52, 53, and 54, Ur esti challeng es the trial c ourt’s dismissal of his moti on to modify

for wa nt of prosec ution. He direc ts us to opini ons from the 8th Circuit Court of Appea ls, which are not binding on this court, as w ell as two United States Supreme Court case s holding pro se litigants to less string ent standar ds than forma l pleading s draf ted by lawy ers. See B oag v. Mac Dougall , 454 U.S. 364, 365, 102 S.C t. 700, 70 L .Ed.2d 551 (1982), citing Haines v. Kerne r , 404 U.S. 519, 92 S.C t. 594, 30 L .Ed.2d 652 (1982). H is reliance is misplaced, howe ver, be cause these opinions only addre ss whether

a pro se inmate ade quately stated a f eder al ca use of a ction for mistreatment during incar cer ation. They have no be aringon the cha lleng es Ure sti brings in this court. Our re view is g uided by

Rule 38.1(i), which r equire s that an appe llant's br ief c ontain “a clea r and c oncise a

rgument for the c ontentions made, with appropr iate citations to authorities andto the rec ord.” T E X .R.A P P .P. 38.1(i). Although appellate courts libera lly construe br iefs by pro

se litigants, we must hold t hem to the same standa rds as lice nsed attorne y s and re quire them to comply with all applicable la

ws and rule s of proc edure

. Stewart v. El Paso County Sheriff’s Departme nt , 324 S.W .3d 321, 323 (Tex.App.--El Paso 2010, pet. de nied), citing Sterner v. Marathon Oil Company , 767 S.W .2d 686, 690 (Tex. 1989). When a par ty fails to cite to the

rec ord or to leg al authority in their brief

, nothing is pre sented for

revie w. Republic Unde rwrit ers InsuranceCompany v. M ex- Tex, Inc ., 150 S.W .3d 423, 427 (Tex. 2004); Stewart , 324 S.W .3d at 323. Be cause Ure sti has failed to comply with Rule 38.1(i) of the Te x as Rules of Appe llate Procedur e, we overr

ule I ssues 34, 45, 46, 52, 53, and 54 a s inadequately briefe d. We pause to note, howeve r, that the dismissal order w as valid on the ba sis of Uresti’s fa ilure to pay costs. We do not addre ss his alleg ation that he wa s incarc erated and c ould not appear at trial. The

6 judgme nt of the trial cour t is affirmed.

J anuar y 25, 2011 ANN CRAWFORD McCLURE, Chief J ustice Be fore McClure, C.J ., Rivera, a nd Antcliff, JJ

.

T he reco rd reflects t

hat Uresti did appe ar by

j ail video at the conditio nal release hearing. Litig ants cann ot 6 be denied access to the courts s im ply because they

are inm ates. In re Z.L.T. , 1 24 S.W .3d16 3,1 65 (T ex. 20 03 ), citing Hud son v. Palme r, 46 8 U.S. 51 7, 52 3, 10 4 S.Ct. 31 94 , 82 L.Ed.2 d 39 3 (1 98 4)

. But an inm ate do es not hav e an abso lute right to app ear in per son in every court pr ocee ding. Z.L.T., 12 4 S.W. 3d at 16 5, citing Zun iga v. Zun iga , 13 S.W. 3d 79 8, 80 1 (T ex.A

pp .-- San Antonio 19 99 , no w rit). T he inm ate's right of access to the courts m ust be w e i gh e d a ga i ns t the pr otectio n of our cor rectio nal sy stem ' s integ rity

. See Jon es v. Jon es, 64 S.W. 3d 20 6, 21 0 (T ex.A pp .-- El P aso 20 01 , no pet.)

. A s the Suprem e Court articulated in Z.L.T., it is the incarcera ted inm ate w ho bear s the burd en to dem onstrate w hy his appear ance i s necessary . T here, th e in m ate f iled a req uest for a bench w arr ant, y et th e court foun d that he failed to m ake the req uis ite s how ingthat his pr esence w as necessary . Z.L.T. , 1 24 S.W .3dat 166

. Consequently , th e trial court w as not req uired, on its ow n, to seek the necessary inf or m ation. Id

. Here, there is nothin g in the reco rd to sug gest Uresti sought a b e nc h w arr ant or other alternative m eans, such as video conferencing , by w hich to par ticipate in either the hearingon the m otio n f

orrec onsideratio n or the jury trial itself. Jon es, 64 S.W .3d at 2 10 -11.