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Erazo v. Sanchez

Court of Appeals of Texas, Fourteenth District

July 18, 2019

ALEX ERAZO, Appellant

          On Appeal from the 270th District Court Harris County, Texas Trial Court Cause No. 2014-71507

          Panel consists of Chief Justice Frost and Justices Bourliot and Poissant


          Frances Bourliot Justice.

         In this pro se appeal, appellant Alex Erazo complains of the trial court's failure to appoint counsel in a civil lawsuit. In the lawsuit, Erazo requested the trial court to order the performance of a new autopsy related to a criminal case. The trial court granted summary judgment favoring appellees Luis A. Sanchez of the Harris County Institute of Forensic Sciences and Harris County District Attorney Kim Ogg. Erazo asserts two issues: (1) the trial court erred in failing to consider his requests for appointment of counsel, and (2) the trial court erred by refusing or failing to appoint counsel. Concluding that the trial court did in fact consider Erazo's requests and did not err in denying the requests, we affirm.


         Erazo admitted he shot his girlfriend in the head and caused her death and the death of their unborn child on October 23, 2000. An autopsy was performed, and the manner of death was determined to be "homicide."[1] Erazo was subsequently convicted of murder, and the jury in that trial assessed his punishment at life in prison and a $10, 000 fine. After an appeal in which harmful error was determined to have occurred in the punishment phase, a new jury assessed Erazo's punishment at life in prison and a $10, 000 fine. Erazo v. State, 260 S.W.3d 510, 511 (Tex. App.-Houston [14th Dist.] 2008, pet. ref'd). The second judgment was affirmed on appeal. Id.

         Erazo filed the present action in October 2014, seeking to have the deceased's body exhumed in Honduras and brought back to the United States for a new autopsy. Erazo insists that the fatal shooting was the result of an accident, argues that the original autopsy report was devoid of any factual basis for concluding that the manner of death was homicide, and suggests that a new autopsy would reveal previously undiscovered evidence indicating that the shooting was an accident.

         In his original petition, Erazo included a request for the court to appoint counsel to represent him in the lawsuit pursuant to Texas Government Code section 24.016. On July 3, 2017, Erazo filed a "Motion for Appointment of Counsel Prusuant [sic] to 28 U.S.C. § 1915(e)(1)." This motion appears to be, and appellant acknowledges on appeal was, in fact, a misfiling intended for a federal court case against a different defendant. On October 3, 2017, Erazo filed a Request for Court Appointed Counsel. This document internally referenced itself as a Motion for Court Appointed Counsel but failed to state the law under which the request was being made.

         Appellees filed a combined traditional and no-evidence motion for summary judgment on September 20, 2017, arguing that Erazo could not meet the requirements for reopening a coroner's inquest and providing supporting exhibits. The trial court granted the motion on October 30, 2017.

         The trial court issued an order on October 31, 2017, "Denying Plaintiff's Motion For The Appointment of Counsel." In the order, the trial court explained that it had no authority to appoint counsel under the federal statute and that Erazo was not entitled to appointed counsel under Texas Government Code section 24.016. The court further explained that Erazo had not filed an affidavit stating that he was too poor to hire counsel as required by section 24.016; the case was not an exceptional one in which the public and private interests at stake were such that the administration of justice would be served by appointing counsel; there was no basis for appointing an attorney ad litem, such as incapacity or legal disability; and Erazo had sufficiently represented himself in the proceedings.[2]

         Governing Law

         There is no general right to counsel in Texas in civil cases. See Travelers Indem. Co. of Conn. v. Mayfield, 923 S.W.2d 590, 594 (Tex. 1996); Harris v. Civil Serv. Comm'n for Mun. Emps. 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").[3] However, under Government Code section 24.016, a district judge has the discretion to appoint counsel for an indigent party in a civil case. Tex. Gov't Code § 24.016 ("A district judge may appoint counsel to attend to the cause of a party who makes an affidavit that he is too poor to employ counsel to attend to the cause."); see also Dunsmore v. Ortiz, No. 14-15-00437-CV, 2016 WL 7401893, at *2 (Tex. App.-Houston [14th Dist.] Dec. 20, 2016, no pet.) (mem. op.). In exercising this discretion, courts must be attuned to the fact that "in some exceptional cases, 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." Mayfield, 923 S.W.2d at 594 (discussing court's inherent power of appointment); accord Gibson v. Tolbert, 102 S.W.3d 710, 712 (Tex. 2003) (discussing authority pursuant to section 24.016); see also Albert v. Adelstein, No. 02-13-00073-CV, 2013 WL 4017511, at *4 (Tex. App.-Fort Worth Aug. 8, 2013, no pet.) (mem. op.) ("The general rule is that a court does not abuse its discretion by refusing to appoint such counsel unless the case is 'exceptional.'") (citing Hines v. Massey, 79 S.W.3d 269, 272 (Tex. App.-Beaumont 2002, no pet.)).

         As the Texas Supreme Court has explained, circumstances that could be deemed "exceptional" are "by definition rare and unusual," such that they defy identification by a generalized rule. Gibson, 102 S.W.3d at 713. It may be easier to identify particular circumstances as common than to pronounce a general rule on what constitutes exceptional circumstances. Id. Accordingly, we examine the denial of appointed counsel in civil cases on a case-by-case basis. See id.; Taylor v. Taylor, No. 2-09-035-CV, 2009 WL 4913867, at *2 (Tex. App.-Fort Worth Dec. 17, 2009, pet. denied) (mem. op.).[4]

         Did the Trial Court Consider ...

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