Court of Appeals of Texas, Eighth District, El Paso
IN RE: PURPORTED MECHANICAL AND MATERIALMAN'S LIEN CLAIM OF LIEN AGAINST PELLICANO BUSINESS PARK, L.L.C.
from County Court at Law No. 7 of El Paso County, Texas (TC #
McClure, C.J., Rodriguez, and Palafox, JJ.
CRAWFORD McCLURE, Chief Justice.
appeal is before the Court on its own motion to determine
whether it should be dismissed for want of prosecution.
Finding that Appellant, Rosa Serrano d/b/a The Lens Factory,
has failed to file her brief, we dismiss the appeal for want
October 18, 2017, the Court issued an order granting
Appellant's fifth motion for an extension of time in
which to file her brief. The order notified Appellant that
the Court would not consider any additional extension
motions. Despite that warning, Appellant filed a sixth
extension based on her frivolous request for the
reporter's record to be supplemented with a contempt
hearing held on June 6, 2016. The Court had previously denied
Appellant's request to supplement the record with this
hearing because the Court does not have jurisdiction to a
review a contempt order in a direct appeal. Consequently, on
November 15, 2017, the Court issued an order denying
Appellant's request to extend the due date for her brief.
The order specifically informed Appellant that the Court
intended to dismiss the appeal for lack of jurisdiction.
See Tex.R.App.P. 38.8(a)(1).
responded by filing two motions requesting that we: (1)
appoint appellate counsel to represent her in the pending
civil appeals (cause numbers 08-16-00327-CV and
08-16-00291-CV); (2) recuse and transfer the appeal to the
Third Court of Appeals; (3) suspend the criminal conviction
for Medicaid fraud (cause number 08-17-00190-CR); and (4)
abate the appeal and forward the appellate record to
Appellant's attorney, the State Counsel for Offenders. We
will consider whether the relief requested justifies allowing
the appeal to continue despite Appellant's failure to
file her brief.
first asks that counsel be appointed to represent her in this
civil appeal from a take-nothing judgment on her claims
against Pellicano Business Park. On April 3, 2017, the Court
denied Appellant's request for appointed counsel.
Appellant represented herself in the underlying civil
proceedings, but she was represented by appointed counsel in
connection with multiple contempt of court motions based on
her alleged violations of a temporary injunction. The trial
court found Appellant in contempt of court and ordered her
confined in jail as punishment for those violations. In this
direct appeal, Appellant may not raise any complaints
regarding the contempt proceedings and contempt orders
because we do not have jurisdiction to address them.
Chavira v. Quarry Hills Mgmt., LLC, 458 S.W.3d 561,
565-66 (Tex.App.--El Paso 2014, pet. denied). A contempt
order involving incarceration must be reviewed through an
application for writ of habeas corpus. Id.
Sixth Amendment's right to counsel does not apply to
civil cases. See Turner v. Rogers, 564 U.S. 431,
442, 131 S.Ct. 2507, 2516, 180 L.Ed.2d 452 (2011); Harris
v. Civil Service Commission for Municipal Employees of the
City of Houston, 803 S.W.2d 729, 731 (Tex.App.--Houston
[14th Dist.] 1990, no pet.)("Neither the Texas nor
United States Constitution guarantees a right to counsel in a
civil suit."). Further, the Texas Supreme Court has
never recognized a general right to counsel in civil cases.
See Travelers Indemnity Company of Connecticut v.
Mayfield, 923 S.W.2d 590, 594 (Tex. 1996). The district
and county courts are authorized by statute to appoint
counsel for an indigent party in a civil case. See
Tex.Gov't Code Ann. § 24.016 (West 2004);
Tex.Gov't Code Ann. § 25.0004(c)(West 2004);
Tex.Gov't Code Ann. § 26.049. The appointment of
counsel under Section 24.016 is limited to "exceptional
circumstances" in which "the public and private
interests at stake are such that the administration of
justice may best be served by appointing a lawyer to
represent an indigent civil litigant." Coleman v.
Lynaugh, 934 S.W.2d 837, 839 (Tex.App.--Houston [1st
Dist.] 1996, no writ), quoting Mayfield, 923 S.W.2d
at 594. We doubt that these provisions apply to an appellate
court, but we will for the sake of argument assume that they
do in order to address Appellant's motion. We have
examined the record and do not find anything to indicate that
this case involves the type of exceptional circumstances
which would justify the appointment of counsel. Accordingly,
we deny Appellant's requests to appoint appellate
also represents in one of her motions that the State Counsel
for Offenders has agreed to represent her in these two civil
appeals, and she asks that we abate the appeal and forward
the appellate record to the SCFO so that her brief can be
prepared. Appellant has not provided the Court with any
evidence to support her claim that the SCFO has agreed to
represent her. We delayed ruling on these motions to give the
SCFO an opportunity to file an entry of appearance, but none
has been filed. Accordingly, we deny Appellant's requests
to abate the appeal and forward the record to the SCFO.
also asks that all the members of the Court recuse themselves
from the case and transfer the appeal to the Third Court of
Appeals. The Court previously denied Appellant's motion
requesting recusal and transfer of the appeal.
Appellant's motion does not present a basis for
reconsideration of that ruling.
further requests in her motion that we "release" or
"suspend" her criminal conviction for Medicaid
fraud because she has filed a case in civil court to
challenge that conviction. Appellant's conviction for
Medicaid fraud is not part of this civil appeal, and we are
not aware of any authority for "releasing" or
"suspending" her conviction. For these reasons, we
deny all relief requested in Appellant's motions filed on
November 27, 2017 and December 4, 2017. Further, we find that
Appellant has not established any grounds for continuing the
Court has given Appellant every opportunity to prosecute her
appeal from the trial court's final judgment entered on
September 15, 2016. Appellant is an experienced pro
se litigant at both the trial and appellate level, and
she has demonstrated a familiarity with the Rules of
Appellate Procedure. Even after being advised that the Court
would not consider any additional extension requests and the
Court intended to dismiss her appeal for want of prosecution,
Appellant did not file her brief. Further, she has repeatedly
delayed this appeal while using the case as a platform for
challenging the contempt orders and criminal convictions. As
we have informed Appellant, we do not have jurisdiction to
review the contempt orders in this direct appeal. Appellant
is certainly aware that her criminal ...