In the Interest of Z.L.T., J.K.H.T., and Z.N.T., Minor Children

No. 04-00-00763-CV

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

82 S.W.3d 100; 2002 Tex. App.

April 17, 2002, Delivered
April 17, 2002, Filed


SUBSEQUENT HISTORY: 53.7(F) mot. for extension of time filed by, 05/30/2002
Reversed by, Remanded by, Review granted by In the Interest of Z. L. T., 2003 Tex. LEXIS 520 (Tex., Nov. 21, 2003)

PRIOR HISTORY: [**1] From the 225th Judicial District Court, Bexar County, Texas. Trial Court No. 99-EM5-03756. Honorable John J. Specia, Jr., Judge Presiding. n1

n1 Master James A. Rausch presided over the hearing and entered the order establishing the parent-child relationship.

DISPOSITION: Reversed and remanded.




COUNSEL: FOR APPELLANT: Zeb Lee Thompson (Pro se), Rosharon, TX.

FOR APPELLEE: John B. Worley, Assistant Attorney General, Child Support Division, Austin, TX. Michelle Young Leding, Assistant Attorney General, Child Support Division, San Antonio, TX.

JUDGES: Opinion by: Phil Hardberger, Chief Justice. Concurring opinion by: Sarah B. Duncan, Justice, joined by Justice Paul W. Green and Justice Karen Angelini. Sitting: Phil Hardberger, Chief, Justice, Alma L. Lopez, Justice, Catherine Stone, Justice, Paul W. Green, Justice, Sarah B. Duncan, Justice Karen Angelini, Justice, Sandee Bryan Marion, Justice.

OPINIONBY: PHIL HARDBERGER

OPINION: [*101]
This appeal is from an order establishing the parent-child relationship between the appellant and three minor children. Appellant raises three issues in his brief, contending the trial court erred by: (1) failing to give appellant notice of the hearing; (2) failing to ensure that a reporter's record was made of the proceedings; and (3) failing to consider and rule on appellant's application for writ of habeas corpus ad testificandum, requesting that appellant be permitted to personally appear at all hearings. On its own [**2] motion, this court voted to consider the case en banc. See TEX. R. APP. P. 41.2(c). The en banc court concludes that the trial court erred in failing to consider and rule on appellant's application for writ of habeas corpus ad testificandum. Accordingly, we reverse the trial court's judgment and remand the cause to the trial court for further proceedings consistent with this opinion. Because appellant's other issues are not necessary to the final disposition of the appeal, we do not address them. See TEX. R. APP. P. 47.1.
BACKGROUND
The Attorney General of Texas filed a petition to establish the parent-child relationship to three minor children, naming the appellant as the father of the children. The appellant, who was incarcerated, filed an application for writ of habeas corpus ad testificandum, requesting that he be permitted to personally appear at all hearings. The record does not reflect that the trial court considered or ruled on appellant's application. After a hearing, the trial court entered an order establishing the parent-child relationship, ordering appellant to pay current and retroactive child support, and setting visitation.
DISCUSSION
Individuals [**3] who are incarcerated do not automatically lose their fundamental constitutional right to court access as a result of their incarcerated status. Zuniga v. Zuniga, 13 S.W.3d 798, 801 (Tex. App.--San Antonio 1999, no pet.). However, incarcerated individuals, whether they are defendants or plaintiffs in civil actions, do not have an absolute right to appear in person. Zuniga v. Zuniga, 13 S.W.3d at 801; Pruske v. Dempsey, 821 S.W.2d 687, 689 (Tex. App.--San Antonio 1991, no writ). In situations in which an incarcerated individual has requested to be present at hearings, Texas courts require the trial court to directly address the issue "by weighing the protection of the integrity of the correctional system against the prisoner's right of access to the courts and strike a [*102] balance that is fundamentally fair." Pruske, 821 S.W.2d at 689; see, e.g., Jones v. Jones, 64 S.W.3d 206, 211-12 (Tex. App.--El Paso 2001, no pet. h.); Taylor v. Taylor, 63 S.W.3d 93, 97 (Tex. App.--Waco 2001, no pet.); Dodd v. Dodd, 17 S.W.3d 714, 718 (Tex. App.--Houston [1st Dist.] 2000, no pet.); [**4] Byrd v. Attorney General, 877 S.W.2d 566, 569 (Tex. App.--Beaumont 1994, no writ); Nichols v. Martin, 776 S.W.2d 621, 623 (Tex. App.--Tyler 1989, orig. proceeding); Birdo v. Holbrook, 775 S.W.2d 411, 414 (Tex. App.--Fort Worth 1989, writ denied). Some of the factors the trial court may consider are:
a. the cost and inconvenience of transporting the prisoner between his place of incarceration and the courtroom;
b. the security risk and potential danger to the court and public of allowing the prisoner to attend court;
c. whether the prisoner's claims are substantial;
d. whether a determination of the matter can reasonably be delayed until the prisoner is released;
e. whether the prisoner can and will offer admissible, noncumulative testimony which cannot be offered effectively by deposition, telephone, or otherwise;
f. whether the prisoner's presence is important in judging his demeanor and credibility compared with that of other witnesses;
g. whether the trial is to the court or to a jury; and h. the prisoner's probability of success on the merits.

Pruske, 821 S.W.2d at 689. In this case, the trial court [**5] abused its discretion by failing to directly address the appellant's request to appear in person and to strike a balance that is fundamentally fair. Id.
The Attorney General requests that we reconsider our prior decisions and hold that the trial court's duty to weigh the issue is not triggered unless the inmate has provided sufficient information to the court. The Attorney General further argues that we should imply from a silent record that the trial court considered the request.
Requiring the inmate to provide information regarding each of the factors the trial court may consider would not appear to be of much assistance to the trial court in undertaking the balancing. See id. (listing factors trial court may consider). The majority of the factors require subjective determinations by the trial court in view of the nature of the underlying litigation and the nature of the requesting party's history. If the trial court needed additional information regarding these factors, the trial court could seek the information in considering the request.
In addition, each of the Attorney General's arguments appears to ignore the reason the trial court is required to undertake a [**6] balancing in considering such a request. The trial court is required to undertake this balancing to protect an inmate's fundamental constitutional right to court access. If we adopt an approach that assumes the trial court engaged in this balancing despite a silent record, and the trial court in reality failed to consider the controlling factors, the trial court has effectively deprived an inmate of his constitutional rights without any consideration. For these reasons, we reject the attorney general's arguments and hold that the record must expressly reflect that the trial court addressed the inmate's request to appear. See Jones v. Jones, 64 S.W.3d at 211-12 (noting record did not demonstrate that trial court balanced the need to appear); Taylor v. Taylor, 63 S.W.3d at 97-98 (rejecting attorney general's [*103] argument that request did not provide sufficient justification for presence); Dodd v. Dodd, 17 S.W.3d at 718 (noting record did not reflect that the trial court addressed request to be present and holding trial court should have "(1) made findings as to the need for [appellant's] presence in light of the issues raised by appellant's [**7] pro se defendant status, and (2) determined alternate means for him to present and respond to evidence"); Byrd v. Attorney General, 877 S.W.2d at 569 (record failed to reflect if trial court ruled on request); Nichols v. Martin, 776 S.W.2d at 623 (concluding trial court must make the pertinent inquiries when request is made).
Finally, the Attorney General argues that we should not require the trial court to consider an inmate's request unless the inmate proffers alternative forms of participation. However, alternative means of access is included in the factors the trial court may consider. Zuniga, 13 S.W.3d at 801 (noting trial court could have afforded alternative means of access if it concluded that presence was unnecessary). The inmate is requesting to personally appear. In addressing this request, the trial court has the discretion to consider whether alternative forms of participation would satisfy the inmate's right to court access. Alternative forms of access is not something that the inmate must proffer because the consideration of alternative access is within the trial court's discretion.
CONCLUSION
The trial [**8] court abused its discretion in failing to directly address the appellant's request to be present at all hearings. The trial courts' judgment is reversed, and the cause is remanded to the trial court for further proceedings consistent with this opinion.
PHIL HARDBERGER,

CHIEF JUSTICE

CONCURBY: Sarah B. Duncan

CONCUR:
CONCURRING OPINION

Following previous decisions of this court and others, the majority reverses the judgment because the trial court "abused its discretion by failing to directly address the appellant's request to appear in person and to strike a balance that is fundamentally fair." See, e.g., Zuniga v. Zuniga, 13 S.W.3d 798, 801 (Tex. App.-San Antonio 1999, no pet.); Pruske v. Dempsey, 821 S.W.2d 687, 689 (Tex. App.-San Antonio 1991, no writ). However, in reaching its decision, the majority does not detail the extent to which the appellant's motion addresses the relevant factors. n2 In fact, the motion states no basis for why the appellant's appearance at trial is desirable or necessary; nor does it ask for permission to appear by an alternate means. The same was true of Zuniga's application. Under these circumstances, [**9] other courts of appeals would reject the appellant's claim of reversible error. See Pedraza v. Crossroads Sec. Sys., 960 S.W.2d 339, 342 (Tex. App.-Corpus Christi 1997, no pet.) ("His application for a writ of habeas corpus ad testificandum contains no basis or argument for granting it."); Armstrong v. Randle, 881 S.W.2d 53, 57-58 (Tex. App.-Texarkana 1994, writ denied) ("He fails to show, however, the substance of any testimony he would have given, or how such testimony would have affected the jury's verdict. He does not show why such testimony could not have been given by deposition, telephone, affidavit, or otherwise."); Brewer v. Taylor, 737 S.W.2d 421, 423-24 [*104] (Tex. App.-Dallas 1987, no writ) ("His application for writ of attachment contains no basis or argument for granting it.").

n2 See also In re Taylor, 39 S.W.3d 406, 412 (Tex. App.-Waco 2001, orig. proceeding); Dodd v. Dodd, 17 S.W.3d 714, 716-18 (Tex. App.-Houston [1st Dist.] 2000, no pet.); Byrd v. Attorney General, 877 S.W.2d 566, 569 (Tex. App.-Beaumont 1994, no writ).

[**10]
In light of these decisions from other courts of appeals, it is not surprising that the Attorney General asks that we reconsider our prior decisions and hold that the trial court's duty to weigh the relevant factors "will not be triggered unless the inmate has provided sufficient information in his bench warrant request." n3 The majority refuses to do so for two reasons: (1) "requiring the inmate to provide information regarding each of the factors the trial court may consider would not appear to be of much assistance to the trial court in undertaking the balancing"; and (2) "each of the Attorney General's arguments appears to ignore the reason the trial court is required to undertake a balancing" - "an inmate's fundamental constitutional right to court access." Neither reason, in my view, supports the continued adherence to our previous decisions and the concomitant burden imposed on litigants, trial courts, and our judicial system in general.

n3 The Attorney General also asks that we apply Texas Rule of Appellate Procedure 33.1(a)(2)(A) and hold that by proceeding to trial without issuing a bench warrant the trial court implicitly denied the application. Cf. Williams v. Bank One, Texas, N.A., 15 S.W.3d 110, 114 (Tex. App.-Waco 1999, no pet.) (holding that by proceeding to trial the trial court implicitly denied a motion for continuance). I would do so.

[**11]
As a general rule, "one who first requests the intervention of a court in his behalf-who asserts a right or a duty and demands a remedy-is properly required to carry the burden of proving his right to the remedy ...." Pace Corp. v. Jackson, 155 Tex. 179, 284 S.W.2d 340, 350 (1955). Thus, our procedural rules require a movant to state in his motion the relief requested and the particular grounds supporting his request. See TEX. R. CIV. P. 21; TEX. R. APP. P. 10.1(a); TEX. R. APP. P. 33.1(a)(1)(A). These rules are based on nothing more - and nothing less - than commonsense. For a court to evaluate a movant's request, the court must be informed about what relief the movant seeks and why, in the movant's view, the requested relief is appropriate. This commonsense rule applies with as much or more force in the context of an incarcerated litigant's application for a bench warrant. To perform the balancing required by our prior decisions, the court must have knowledge of several facts. For instance, at the time of trial, where will the incarcerated litigant be physically located? The State of Texas covers 266,807 square miles; and, within the Texas Department of Criminal [**12] Justice, there are over 100 facilities, stretching from El Paso to Texarkana, from Edinburg to Dalhart. n4 For what criminal offense was the litigant incarcerated and what has been his record for violent behavior while in prison? When does the litigant believe he will be released? Most importantly, what material, relevant, and non-cumulative evidence does the incarcerated litigant intend to present and why, in the litigant's view, can this evidence not be presented effectively by deposition, telephone, or some other means? Who better to provide this information to the court than the incarcerated litigant?

n4 See http://www.tdcj.state.tx.us/stat/publications/fy2001statsum.pdf.

I do not doubt that the decision on an application for a bench warrant - as well as the balancing required on several of the factors outlined in our prior decisions - requires a court to make a series of subjective determinations. But a subjective determination cannot be made without basic factual information. And it is the incarcerated [**13] [*105] litigant who can and, under our rules of procedure, should provide the starting point for the court's investigation. This information can then be verified and considered by the court.
The majority states that the sua sponte investigation required by our prior decisions is necessary to "to protect an inmate's fundamental constitutional right to court access." In so doing, the majority implies a far broader constitutional right than has actually been recognized. As the Fifth Circuit has noted, "'while the precise contours of a prisoner's right of access to the courts remain somewhat obscure, the Supreme Court has not extended this right to encompass more than the ability of an inmate to prepare and transmit a necessary legal document to a court.'" Norton v. Dimazana, 122 F.3d 286, 290 (5th Cir. 1997) (quoting Brewer v. Wilkinson, 3 F.3d 816, 821 (5th Cir. 1993), cert. denied, 510 U.S. 1123, 127 L. Ed. 2d 397, 114 S. Ct. 1081 (1994)); see also Wolff v. McDonnell, 418 U.S. 539, 576, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974). Certainly this important - but nonetheless narrowly-defined - constitutional right is not impacted [**14] by requiring an incarcerated litigant to include in his application for a bench warrant a statement of the grounds for the relief he requests.
In all other contexts, this court holds "[a] pro se litigant ... to the same standards as licensed attorneys" and requires him to "comply with applicable laws and rules of procedure." Shull v. United Parcel Serv., 4 S.W.3d 46, 52-53 (Tex. App.-San Antonio 1999, pet. denied), cert. denied, 531 U.S. 835 (2000), quoting Holt v. F.F. Enters., 990 S.W.2d 756, 759 (Tex. App.-Amarillo 1998, pet. denied). I would do the same in this context and hold (1) an incarcerated litigant who applies for a bench warrant must comply with Texas Rule of Civil Procedure 21 by including in his application a statement of the relief he seeks and the grounds supporting his request, and (2) if a trial court proceeds to trial without expressly ruling on an application for a bench warrant, it is implicitly denied. Because these holdings would effect a change in the law, however, I would apply them prospectively only. Accordingly, I concur in the majority's judgment reversing the trial court's judgment and remanding the [**15] cause. See TEX. R. APP. P. 43.3(b).
Sarah B. Duncan, Justice

IN THE INTEREST OF D. S., A CHILD

NUMBER 13-01-110-CV

COURT OF APPEALS OF TEXAS, THIRTEENTH DISTRICT, CORPUS CHRISTI

82 S.W.3d 743; 2002 Tex. App.

July 3, 2002, Opinion Delivered
July 3, 2002, Filed


NOTICE: [**1] PUBLISH. TEX. R. APP. P. 47.3.

PRIOR HISTORY: On appeal from the County Court at Law No. 5 of Nueces County, Texas.

DISPOSITION: Reversed and remanded.




COUNSEL: ATTORNEY FOR APPELLANT: Caroline L. Bertuzzi, Attorney at Law, Corpus Christi, TX.

ATTORNEY FOR APPELLEE: Armando Cavada, Nueces County Attorney's Office, Corpus Christi, TX.

ATTORNEYS FOR INTERESTED PARTIES: Cathy Pope Clark, Assistant Attorney General, Corpus Christi, TX. Minerva P. Arriaga, Attorney At Law, Corpus Christi, TX.

JUDGES: Before Chief Justice Valdez and Justices Hinojosa and Rodriguez. Opinion by Justice Rodriguez.

OPINIONBY: NELDA V. RODRIGUEZ

OPINION: [*744] Before Chief Justice Valdez and Justices Hinojosa and Rodriguez.
Opinion by Justice Rodriguez.
Appellant, the biological mother of D.S., a minor child, brings this appeal following the trial court's order terminating her parental rights to D.S. n1 By eight issues, appellant generally contends the trial court erred in denying her request for a bench warrant, denying her request for a jury instruction, and denying her motion to dismiss the case. Appellant also contends the evidence is not factually sufficient to support the jury's findings. We reverse and remand.

n1 Appellant and the father of D.S. had their parental rights terminated in the same proceeding. The father, however, is not a party to this appeal.

I. BACKGROUND
Appellant was convicted of possession of cocaine and sentenced [**2] to five years probation. Approximately four months after the conviction, D.S. was born. In April of 1995, the Texas Department of Protective and Regulatory Services (the Department) began an investigation of appellant's home. The investigation revealed that appellant and her husband were neglecting D.S. The investigation also revealed that D.S. was living in very substandard conditions. D.S. was voluntarily placed in the care of appellant's mother.
On October 2, 1995, appellant's probation was revoked for failing to pay probation fees and not reporting to her probation officer. Appellant was sent to prison. Upon her release in 1997, appellant regained possession of D.S. However, approximately one year later, appellant's [*745] probation was again revoked. Upon her release from a parole violator's facility, the Department informed appellant that she would have to satisfy the requirements of a safety plan in order to retain custody of D.S. In March of 1999, the Department removed D.S. from appellant's care, based on allegations that appellant engaged in prostitution. Following an adversary hearing, D.S. was returned to appellant's care, however, both appellant and the Department were named [**3] as joint managing conservators of D.S. In August of 1999, appellant was arrested for a parole violation and sent to prison. D.S. was placed in foster care. The Department was appointed temporary sole managing conservator of D.S. On September 5, 2000, a jury rendered a verdict terminating appellant's parental rights. This appeal ensued.

II. ANALYSIS

A. Bench Warrant

By her first issue, appellant contends the trial court erred by denying her request for a bench warrant. A litigant may not be denied access to the courts simply because she is an inmate. See Hudson v. Palmer, 468 U.S. 517, 523, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984); In re I.V., 61 S.W.3d 789, 796 (Tex. App.-Corpus Christi 2001, no pet.). However, the right of access is not an absolute one; it is only a qualified right. In re Z.L.T., No. 04-00- 00763- CV, 2002 Tex. App. LEXIS 2666, *3 (San Antonio April 17, 2002, no pet. h.); In re B.R.G., 48 S.W.3d 812, 819 (Tex. App.-El Paso 2001, no pet.); Pedraza v. Crossroads Sec. Sys., 960 S.W.2d 339, 342 (Tex. App.-Corpus Christi 1997, no pet.).
In determining whether an inmate should [**4] personally attend court proceedings, the trial court must balance the interest of the State in preserving the integrity of the correctional system with the inmate's interest in access to the courts, with a goal of achieving a balance that is fundamentally fair. Aguilar v. Alvarado, 39 S.W.3d 244, 248 (Tex. App.-Waco 1999, pet. denied) (emphasis added); Dodd v. Dodd, 17 S.W.3d 714, 717 (Tex. App.-Houston [1st Dist.] 2000, no pet.); Pedraza, 960 S.W.2d at 342. Factors to be considered in weighing these two interests include, but are not limited to: (1) the cost and inconvenience of transporting the inmate; (2) the security risk presented by the inmate; (3) the substance of the matter; (4) the need for witnessing the inmate's demeanor; (5) whether the trial is before the jury or judge; and (6) the possibility of delaying trial until the inmate is released. In re I.V., 61 S.W.3d at 796; Pedraza, 960 S.W.2d at 342; see Brewer v. Taylor, 737 S.W.2d 421, 423 (Tex. App.-Dallas 1987, no writ). We review the trial court's determination under an abuse of discretion standard. In re I.V., 61 S.W.3d at 797; [**5] Aguilar, 39 S.W.3d at 248.
Appellant argues the trial court failed to balance the interests of the State with her interest before it summarily denied her request for a bench warrant. By not applying any factors to help balance the interests, appellant argues, the trial court abused its discretion. We agree with appellant that the trial court should have at least entertained the relevant factors before denying her bench warrant. See Zuniga v. Zuniga, 13 S.W.3d 798, 802 (Tex. App.-San Antonio 1999, no pet.) (trial courts need to articulate factors that weigh both in favor and against issuing a bench warrant); see also Nance v. Nance, 904 S.W.2d 890, 892 (Tex. App.-Corpus Christi 1995, no writ) (trial court must balance the government's interest against the prisoner's right of access to courts by considering the various factors).
[*746] During the hearing on appellant's request for a bench warrant, the trial court stated, in pertinent part,

So I would have to make some type of assessment. . . . This isn't really one that I want - - that deserves it, so to speak . . . is yours one that deserves it? I don't want to start drawing those distinctions, [**6] and so I haven't granted any [bench warrants] yet, and yours would be the first.

The trial court erred by not considering any factors in balancing the State's interest and appellant's interest. See, e.g., Brewer, 737 S.W.2d at 423 (citing Stone v. Morris, 546 F.2d 730, 735 (7th Cir. 1976)) (the trial court must weigh the interest of the plaintiff in presenting his testimony in person against the interest of the State in maintaining the confinement of the prisoner). By summarily denying every bench warrant for no other reason than not wanting to make "some type of assessment" the trial court is failing to act on an inmate's legitimate request to be present. See I.V., 61 S.W.3d at 797; Byrd v. Attorney Gen., 877 S.W.2d 566, 569 (Tex. App.-Beaumont 1994, no writ).
The State argues that even though the judge did not address any relevant factors when it denied appellant's bench warrant, there was no abuse of discretion because appellant was able to participate in the proceeding by telephone. This argument would be valid if the trial court had first weighed the relevant factors. See In re Taylor, 39 S.W.3d 406, 412 [**7] (Tex. App.-Waco 2001) (orig. proceeding). Because appellant's right to be present is a qualified right, see In re B.R.G., 48 S.W.3d at 819, the trial court must weigh the relevant factors and have a reason for denying a bench warrant before it decides to only allow appellant to participate by telephone. See id. at 820 ("If, after considering these factors, the trial court determines that the prisoner is not entitled to appear personally, then the trial court should permit him to proceed by affidavit, deposition, telephone, or other effective means.") (emphasis added); see also Nichols v. Martin, 776 S.W.2d 621, 623 (Tex. App.-Tyler 1989, no writ) (concluding trial court must make pertinent inquiries regarding appellant's request to appear); cf. Nance, 904 S.W.2d at 892 (the order reflects various findings demonstrating that the trial court did not arbitrarily refuse to issue the requested bench warrant). In this instance, the trial court's decision not to weigh any relevant factors was arbitrary and unreasonable. See Nance, 904 S.W.2d at 892.
Our review of the record reveals that if the trial [**8] court had considered the relevant factors in determining whether the bench warrant should be issued, it is likely it would have allowed appellant to be present at trial. For example, appellant did not seem to be a huge security risk; the parent-child relationship is a fundamental liberty interest, see Santosky v. Kramer, 455 U.S. 745, 753, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982); and the trial would only have been delayed for a short time, as appellant was scheduled for release only fifteen days after the date the trial began. See Pedraza, 960 S.W.2d at 342.
Thus, because the trial court did not weigh any relevant factors before it summarily denied appellant's request to personally attend the hearing, see, e.g., In re B.R.G., 48 S.W.3d at 820; Pedraza, 960 S.W.2d at 342; Nance, 904 S.W.2d at 892; Byrd, 877 S.W.2d at 569, we find the trial court abused its discretion. See In re I.V., 61 S.W.3d at 797; Nance, 904 S.W.2d at 892.
In addition, judgments terminating the parent-child relationship must be carefully scrutinized because of the importance [**9] of that relationship. In re K.R., 63 S.W.3d [*747] 796, 800, 45 Tex. Sup. Ct. J. 95 (Tex. 2001). Having a parent not present at her own trial to terminate her parental rights could leave the jury with an impression that the proceeding is not important to the parent. Furthermore, because of obvious negative connotations associated with a parent who is incarcerated, it is important for the jury to witness the demeanor and credibility of the parent to get a sense of the parent's conviction to care for the child. For these reasons, we conclude the outcome of the trial was probably improper. See TEX. R. APP. P. 44.1; Taylor v. Taylor, 63 S.W.3d 93, 98 (Tex. App.-Waco 2001, no pet.). Appellant's first issue is sustained. n2

n2 Because of our disposition of appellant's first issue, we need not address her remaining issues. See TEX. R. APP. P. 47.1.

Accordingly, we reverse the trial court and remand for a new trial on the merits. [**10]
NELDA V. RODRIGUEZ
Justice