*1 Losack, building major for the Walls
Unit, testified that an inmate is not in
custody if he is in a restricted area. departed assigned area
Once he from portion pris-
and entered a restricted longer in facility, appellant
custody The prison officials. fact appellant pris-
that the did not breach bearing boundary
on’s outer on this Scott,
issue. S.W.2d at 466. See light
Viewing the evidence in a most favor- verdict, find that a
able to the rational beyond
trier of fact could have found appellant
reasonable made an doubt departure custody. Ap-
unauthorized
pellant’s point second of error is overruled. judgment of conviction is affirmed. CRONEN, Relator,
Charles D. SMITH, Bradley Visiting
The Honorable
Judge of the 151st District County, Respondent.
Harris
No. 01-90-00757-CV. Texas, Appeals
Court of (1st Dist.).
Houston
June
70 may these relator correct since and refile the motion
technical deficiencies merits of petition, will address the and we econo- petition judicial interest of his in the my.1 of alleges that he met his burden oath hearing pauper’s on his
proof the and, therefore, duty respondent had a clear state grant application for a free Consequently, relator ment of facts. respondent claims abused his discretion of facts. denying relator a free statement thе question us is whether before the trial record as a establishes that whole discretion in judge abused his Cronen, pro Charles se. Walker, 652 S.W.2d the contest. Keller v. 1983, orig. pro (Tex.App. 543 Driscoll, County Atty., Mike Joan Den- — Dallas ceeding). ton, Houston, Atty., for County Asst. re- spondent. from the Because a statement facts hearing pauper’s application on the oath BASS, Before and DUNN SAM review, this Court’s necessary MIRABAL, JJ. re- reporter court who ordered official
ported hearing to file the statement hearing at no cost to relator. facts from the OPINION of the the record We have now reviewed DUNN, Justice. find hearing pauper’s oath and relator’s Relator, attempting to adverse appeal an in the trial court’s no abuse of discretion against city judgment in his suit decision. speed illegal allegedly Pasadena for an prove Relator had the burden by trap, way relief of mandamus seeks allegations of his affidavit. Tex. respondent’s order the dis- R.App.P. 40(a)(3)(D). contest is When the trict clerk’s contest to relator’s affidavit sought to re and mandamus is sustained inability сosts on Tex. question ruling, is whether view R.App.P. 40(a)(3). We relator’s overrule the record as a whole an examination of file. motion for leave to judge trial that the abused establishes In Keller, 543. 652 S.W.2d at note that the verification discretion. We first of the at the petition ruling on the merits affidavit relator’s handwritten attached to level, determining test only by is court signed writ of trial mandamus proceed pauperis forma public by not himself. entitlement to notary and relator preponderance of the evidence Therefore, properly has whether relator failed to appellant would be shows verify truth of all factual costs, give pay the petition to furnish contained in the therefor, security if he wanted copies of properly or sworn certified good faith to do so. made a effort to the motion. Tex. exhibits attached R.App.P. (Tex. (4). basis, 355 121(2)(F), Lowry, v. 597 S.W.2d On this mo Allred Hockless, 1980); 139 Tex. to file should be overruled. Pinchback tion leave security given, contending costs or therefor. Tex.R.App.P. was not 1. Without notice oath, points 41(b). pauper's that relator's the district clerk also out At on his proof required petition contain given does not in com- that the notice was relator stated reporter notice to the clerk and not pliance Since issue is with the rule. filing If affidavit. 41. rela- mandamus, Tex.R.App.P. disposition essential our notice, give required he shall not tor fails to we do decide it. giv- proseсute without be intitled
71
(1942); Keller,
The trial court found that relator’s unem-
ployment
involuntary.
S.W.2d at
was not
The court
also found that relator’s
of numerous
At the
against
governmental
lawsuits
enti-
various
trial court heard
evidence of
considerable
ties in Harris County
by
his own
including
relator’s financial condition
was, therefore,
inadequate
choice and
an
following:
Jаnuary
nearly
relator
*3
working.
his not
excuse for
The court
amputated
finger
job
on the
his
while
sustained
contest to
relator’s affidavit.
time;
had been unable to work since that
receiving
compensation
he was
worker’s
extraordinary
Mandamus is an
week;
benefits of
a
he had
$238
received
remedy
compel
which will issue to
a nondis-
stamps
past
longеr
food
in the
but was no
act,
cretionary
Rankin,
Smith v.
661
kind;
any
welfare of
while at his
(Tex.App.
S.W.2d
153
[1st
— Houston
prior
injury
$403.36;
he had
his
earned
1983, orig. proceeding), or to correct
Dist.]
point
and at some
in time he had also a clear abuse of discretion or the violation
eight
unemployment
received
weeks of
ben
duty
imposed by
a
law when there
efits at
a weеk. Relator’s
$54
own evi
adequate remedy by appeal. Johnson v.
that,
dence
at the
showed
time of the hear
Appeals,
Fourth Court
700 S.W.2d
ing,
approximately
his income could total
(Tex.1985).
917
A trial court
its
abuses
per
compensa
month from worker’s
$989
discretion
it
reaches a decision so
tion.
arbitrary and unreasonable as to amount to
prеjudicial
a clear and
error of law.
Id.
Relator also stated
expected
that he had
discretion,
To show a clear
abuse
light
doctor to release him for
duty
that,
relator must show
under the circum
day,
work that same
but he had missed the
stances of the
per
the facts and law
appointment
hearing;
because of the
he
mit the trial court to make but one deci
was to see
expected
the doctor and
Id.;
Moore,
sion.
Rowe v.
756 S.W.2d
next;
release later that same week or the
(Tex.App.
[1st Dist]
working
he had been
for the last fifteen
— Houston
orig. proceeding)
added).
(emphasis
years
every day;
but not
and his income
Aquamarine
Inc.,
Downer
Operators,
$5,728.
for 1989 was
Relator claimed thаt
supreme
stated,
court
problems looking
he also has
for work and
test for abuse of discretion is
regularly
go
“[t]he
because he has to
whether,
opinion
reviewing
court all the time. Relator also testified
court,
present
appropriate
the facts
an
longer
that he can no
afford to
drive
Rather,
case
car;
for the trial сourt’s action.
utilities;
he
in a
lives
shack without
question
it is a
of whether the
and he
refrigerator.
pays
[trial]
He
court acted without
reference to
month to maintain his furniture in stor-
guiding
principles
rules and
age.
... whether
At the time of the
he had a
arbitrary
the act was
and unreasonable.”
savings account balance of
$5.01.
prevented
testified that he had been
from
Inc.,
Aquamarine Operators,
Downer v.
working regularly because he has been do-
(Tex.1985).
241-42
many
“court work” on the
court cases
Brown,
The dissent relies on Ranier v.
he
filed.
(Tex.Civ.App.
S.W.2d 682
— Houston
argument by
Cross-examination and
orig. proceeding), in con
[1st Dist.]
counsel for the
cluding
contestant focused on rela-
that the trial court abused its dis
expectаtion
being
However,
tor’s immediate
re-
cretion.
we believe Ranier can
leased for
distinguished
work and his excuse that his
be
and harmonized with this
prevent
obtaining
court cases
him from
case. In
a husband and wife both
keeping
Thus,
employment.
sought
terminating
contestant
an order
their
put
parental rights.
into issue whether relator could have
Both husband and wife
paid
part
the costs of
indigency.
filed
Timely
affidavits of
con
if
good
wanted to and made a
tests were also filed. The
held
trial court
hearing
to do so.
and sustained the contest to each
faith effort
regard-
conflicting
the trial court There was also
evidence
affidavit.
thereby
timely
ing willingness
job and
failed to
enter its orders
affidavits, this
good
the contests to the
faith
the costs
make
effort
in the
held that all
affidavits
or
Based
some
thereof.
Tex.R.App.P.
conflicting
taken
presented
were to be
as true.
356 upon the
evidence
Tex.R.App.P.
1967),
(Vernon
40(a)(3).
whole,
say
now
the record as
we cannot
The Court then
evidence
reviewed
con-
the trial court’s decision to sustain the
to determine whether
trial
made arbi-
to relator’s affidavit was
test
had abused its discretion
sustain
any guiding
trarily
regard
and without
ing the contests.2
principle.
rule
The Court first concluded
both the
leave to
Accordingly, relator’s motion for
undeniably impov-
and wife were
husband
petition mandamus is
file a
Ranier,
A. None. compound fracture open Okay. With living on before Q. you been What have germinal nail the nail injury compensation. you got the workmen’s disruption of tendon as matrix as well I bills. you was behind A. I told mechanism dor- the extensor insertion of made, which scraped along on what sally. nothing. almost do any help you, please If I can be getting food No, no, just you were Q. — truly Very contact me. not hesitаte stamps? Rose, A. M.D. Franklin yours, A. Yes. ma’am. like cut means is the forklift What Q. on welfare? you And were it finger off. It broke the bone and ma’am. A. Yes. just by piece little hanging there around, flapping you get Q. job? and was you of meat Had tried completely And it’s still not well know. A. Yes. ma’am. kept that’s me from work- Anyway, yet. job at the As- Q. you did How says he January. But he ing since trodomain? sending me might planning on —he’s something as of light duty or back getting job any- Q. you tried Have over there But haven’t been this week. else? where to—had *5 Yes, A. ma’am. court. THE COURT: Go to Q. Where? morning, —go this to court [Relator]: easy jobs, getting I all kinds of yes, sir. A. tried work, clerk, paper telephone like sales trainee, clerk, all kind having any [By Besides not Relator]: ^office one eаsy that I could do with jobs little cover I tried to money, that’s what hand, you know. that, on welfare through all I’ve been any I ain’t any money I and at Q. you and didn’t have tried Have I don’t got any property pay places— with. or fast food the restaurants my property outside of any real have No, A. ma'am. homestead, this one lot just which people that are аl- Q. of those —some I’m my and little shack. where I live on asking help? ways I no utili- living poverty. don’t have no, restaurants, apply any A. I didn’t conveniences, you any I have ties. don’t ma’am. sewer, electric, water, no know, no no asking for they’re usually Q. Because complete know, just it’s regular you— help. poverty there. over kitchen work. A. I can’t stand being that, finger beyond And due question. Do year you so me ask
broke, any Q. all let had work Just haven’t get a Up you could any property to live on. any money you have I didn’t have my compen- getting until the time was loan on? shape, you
sation, pretty I was in bad No, get loans tried to ma’am. I’ve A. go for a money has to know. And that up put offered to past. I’ve even and stuff. lot of bills they my lot and wouldn’t my shack and get home I can’t collateral.
take it for Q. right. loans, All home construction improvement [By Defense Counsel]: loans, compen- loans, any loans, the workmen’s much was bond How you got every month? tried and tried And I’ve sation kind of loans. tried. A. week. [By Relator]:
Q. ask, May I you Nobody gun your who have tried to had held a head to you up bоrrow from? make come here and file all these against governmental lawsuits various every major A. Almost bank in Hous- county. entities in this You’ve done that downtown, ton. All these banks Texas by your your inability own choice. So Bank, City Commerce Bank. First Re- you go work because have to to court Bank, MBank, public Bank of the South- me, doesn’t hold water with Every major you bank can west. find. you’re by your here own choice. savings my neighbor- All and loans you secondly, And have indicated also companies hood. All the finance I could you here that are selective somewhat Mall, find house and between Almeda you kind of about what work do. You miles, or four which is three within that you said don’t like restaurant work. there, every areа around financial insti- Well, going taxpay- I’m not to force tution that I could find. County pay your ers of Harris Q. you Did file an income tax last you up say come here and year?. you don’t like to do restaurant work. Yes, A. ma’am. Let me see what it you you go If want $4,182, year, here. plus Last made somewhere, you joba in a restaurant $1,546, unemployment some for a total necessary, if pay every the costs like $5,728, year income last which left me litigant county. in this on welfare. The contest is sustained. That’s all. Q. you ap- Do know what the costs of There is no from the evidence that doubt peal would be this case? impoverished. pov relator is Whether No, ma’am, trying A. but erty resulted from his own lack of effort say past, Hardy has аsked —in determining cannot be considered in wheth me for a thousand dollars standard bond. er he is able to the costs of They charge fifty me cents or a dollar Brown, Ranier v. this, page every page they do for (Tex.Civ.App. [1st Dist.] — Houston They charge separate- and the other. me orig. person A proceeding). should not be ly top for the statement of facts on right though *6 denied the to an even everything the record and else. And pay inability to the costs results from money, just didn’t have the past improvidence. misconduct or Id. money by have the to and live didn’t Ranier, granted In mandamus this got on. And now I’ve all these other relator, finding the trial as to wife problems up come that I don’t have the court abused its discretion money to cover them. inability pay contest to her affidavit of longer further testified he no relator, as to the costs. husband he does not have the drives his car because denied mandamus because he had se- gas, he repair buy it or to nor can money to hearing, cured a two weeks before inspection plate or license fеes. pay the enough left to and he had 1-½ months save refrigerator, since his shack has He has no deposit money pay cash for his electricity running He did not water. appeal; appeal was not due until bond compensation receiving ben- start workers’ hearing. months I-V2 after 1990, 1,May three weeks before efits until case, present In relator wishes hearing. judgment signed February appeal closing hearing the evidence and After 1990. The deadline for arguments, Judge Smith stated follow- bond, May or affidavit lieu was ing: hearing on contest to 1990. The Cronen, I re- Okay. THE COURT: inability pay relator's affidavit of you are involun- main unconvinced that May 1990. Unlike the conducted unemployed. tarily relator here had husband relator nо additional time after save bond; posting money for the of an HERNANDEZ,
therefore, Appellant, trial court restrict- here was Jesus then, of ed to a consideration relator’s ability pay a hearing, moment of the TEXAS, Appellee. BAR OF STATE $1000.00, of other costs deposit cash of No. 13-90-420-CV. appeal.1 Texas, Appeals of Civil 145 of the Texas Rules Rule Corpus “рarty is unable Christi. defines a who Procedure “person pres- is costs” as a who to afford June government entitlement ently receiving a indigency person based on ability Up until costs.”
who hearing in
three weeks before on welfare and had been
relator had been 1, 1991, stamps;
receiving May before food to afford “party who matter law. Relator’s wel-
costs” as a stamp food benefits ceased when
fare and receiving compensation
he began workers’ injured hand; for his the worker’s
benefits his sole
compensation benefits constituted hearing. the time
income at opinion, as of
In the date
hearing, position yet relator was most
enjoying people what consider of life. condone
bare necessities cannot rela-
conclusion that the week $238.00 receiving began
tor three ap- should be
weeks before
plied due immedi- to a bond $1000.00
ately. opinion, the its trial court abused rela-
discretion in the contest to pay costs inability
tor’s affidavit of file the grant leave to would
petition for of mandamus. *7 power compared purchasing opinion, in as majority is also noted that It inflation, Ranter, i.e., take distinguishing seem to effect of does not the dollar in purchasing power of the dollar into account