In the Interest of J.A., a Child v. the State of Texas

IN THE
TENTH COURT OF APPEALS

No. 10-23-00197-CV

IN THE INTEREST OF J.A., A CHILD

From the 74th District Court
McLennan County, Texas
Trial Court No. 2016-776-3

MEMORANDUM OPINION

Danny Wayne Alcoser, who is incarcerated and proceeding pro se, appeals from a

final order in a suit affecting the parent-child relationship in which it was determined

that he is the biological father of J.A. In six issues, he attacks the determination of

paternity, contends the trial court erred by refusing to order additional genetic testing,

failing to provide notice of the final hearing, and failing to file findings of fact and

conclusions of law, and asserts that his counsel was ineffective. Because we agree the

trial court abused its discretion in failing to provide notice of the final hearing, we reverse
the trial court’s judgment and remand the cause for further proceedings consistent with

this opinion.

DUE PROCESS

In his third issue, Alcoser contends the trial court abused its discretion by failing

to provide him with any notice of the May 5, 2023 hearing and by denying his motion for

continuance. He asserts “the trial court’s action or lack thereof caused [him] to proceed

unprepared, including time to retrieve records from his prior court appointed counsel

and other counsels, and to be able to subpoenas [sic] witness, experts who tested the

DNA, ect.,” denying him due process.

Background

The Department of Family and Protective Services filed its Original Petition for

Protection of a Child, for Conservatorship, and for Termination in Suit Affecting the

Parent-Child Relationship on February 26, 2016. On May 20, 2016, the trial court rendered

an Order for Required Participation ordering Alcoser and J.A.’s mother, Ursula

Woessner, to cooperate with specified services. By early 2017, Alcoser was convicted of

assaulting Woessner and imprisoned. The Attorney General filed a Petition to Establish

the Parent-Child Relationship on November 9, 2017 to determine the parentage of J.A.

Since then, multiple hearings have been set. The record is not clear as to how many

hearings were held and for what purpose. By an “Order to Appear at Hearing by

Telephone Conference” dated April 13, 2023, the trial court set a final hearing in this cause

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for May 5, 2023. In the body of the order, along with details of the hearing, is the

statement: “It is hereby requested that Mr. Danny Alcoser, SID Number 05799338, TDCJ

Number 02187801 be allowed to participate in this hearing by telephone conference.”

At the May 5, 2023 hearing, the trial court asked the parties to make formal

appearances. After counsel for Woessner and the assistant attorney general introduced

themselves, the court stated: “And Mr. Alcoser, you’re appearing by telephone; and I’m

assuming that you are ready to proceed.” Alcoser replied as follows:

Yes, sir, Your Honor. I’m here at the Robertson Unit
presiding, [sic] present by telephone. I’m not ready to
proceed, no, sir. Your Honor, I have not received any type of
notice of this hearing. I haven’t been able to prepare for this
hearing. I don’t even know what this hearing is about. I’ve
submitted motions of counsel has withdrawing [sic]. I didn’t
receive notice of the case reinstatement on the docket. So, I’m
coming into this blind and would respectfully request a
continuance.

To which the trial court replied:

I appreciate that. I’m going to overrule the motion for
continuance. This case has been pending. It has not changed.
You have had notice of everything I believe that you could
possibly have notice of; and I know that I sent via U.S. mail a
notice of this hearing, and I know that it was received.

The court proceeded to try the issue of paternity. After the parties rested, the court

stated that it would defer making a ruling until it received documents Alcoser wanted to

introduce. The court gave him ten days to mail the documents to the clerk’s office.

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On May 15, 2023, Alcoser filed a motion for continuance complaining that he did

not have notice of the May 5 hearing. He also asserted that he had been forced to litigate

pro se without the opportunity to enjoy the full effect of due process or discovery to

obtain evidence necessary to prepare his defense. Attached to the motion is a request

that Alcoser sent to the Robertson Unit mailroom, dated May 8, 2023, asking if the

mailroom had provided him with any legal mail between April 1, 2023 and May 5, 2023.

Someone had written “nothing found” in the disposition section of the form. Also

attached to the motion is Alcoser’s affidavit in which he stated that he had no knowledge

of the order setting a hearing for May 5, 2023. Further, he explained that he needed to

engage in discovery to obtain information about the paternity testing that was done. He

also listed some potential witnesses he felt might provide pertinent information.

The motion for continuance was “dismissed without action” in a letter ruling

dated May 23, 2023. The trial court signed its Final Order in Suit Affecting the Parent-

Child Relationship on May 25, 2023. In it, the trial court stated that, after Alcoser’s verbal

motion for continuance was denied, Alcoser announced ready.1 The trial court found

Alcoser is the biological father of J.A. but did not order Alcoser to provide support.

Applicable Law

We review a trial court’s ruling on a motion for continuance for an abuse of

discretion. See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002). A

1 In our review of the record, we were unable to find Alcoser’s announcement of “ready.”
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trial court abuses its discretion if its decision is arbitrary, unreasonable, and without

reference to any guiding rules and principles or is so arbitrary and unreasonable as to

amount to a clear and prejudicial error of law. Id.; Downer v. Aquamarine Operators, Inc.,

701 S.W.2d 238, 241-42 (Tex. 1985).

A defendant who has made an appearance in a cause is entitled to notice of the

trial setting as a matter of due process. LBL Oil Co. v. Int’l Power Servs., Inc., 777 S.W.2d

390, 390-91 (Tex. 1989) (per curiam). The failure to provide notice constitutes a lack of

due process and is grounds for reversal. Kuykendall v. Beverly, 436 S.W.3d 809, 813 (Tex.

App.—Texarkana 2014, no pet.). When a party does not have an email on file with the

electronic filing manager, notice may be served by one of several different methods,

including by mail. TEX. R. CIV. P. 21a(a)(2). Service by mail is complete upon deposit of

the document, postpaid and properly addressed, in the mail. Id. R. 21a(b)(1). When a

party asserts notice was not sent, service must be proved according to the rule. Mathis v.

Lockwood, 166 S.W.3d 743, 745 (Tex. 2005) (per curiam). A certificate by a party or an

attorney of record, or the return of the officer, or the affidavit of any person showing

service of a notice is prima facie evidence of the fact of service. TEX. R. CIV. P. 21a(e).

Implicit in the concept of service is the need for the party upon whom an item is

served to actually receive it. Payton v. Ashton, 29 S.W.3d 896, 898 (Tex. App.—Amarillo

2000, no pet.). Compliance with Rule 21a, including mailing a document, creates a

rebuttable presumption that it was received. Mathis, 166 S.W.3d at 745; Thomas v. Ray,

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889 S.W.2d 237, 238 (Tex. 1994) (orig. proceeding). Evidence of non-receipt negates the

presumption. Mathis, 166 S.W.3d at 745. Receipt of notice can be of particular importance

when incarcerated parties are involved because they require an intermediary to receive

and distribute their mail. See In re L.G.T., No. 05-17-00140-CV, 2017 Tex. App. LEXIS 5884,

at *15 (Tex. App.—Dallas June 26, 2017, no pet.) (mem. op.) (Held that a letter directed to

the prison ordering an inmate to trial was not evidence that the inmate received notice of

the trial setting.).

Discussion

Alcoser denied receiving notice of the hearing and provided documentation that

the prison mailroom had no record of having received notice, triggering the necessity of

proving service. See Mathis, 166 S.W.3d at 745. While Alcoser’s statements at the hearing

were not under oath, the oath requirement was waived in the absence of an objection,

and the circumstances clearly indicated that he tendered the evidence on the record based

on personal knowledge. Id. Even if the trial judge disbelieved Alcoser’s testimony, that

would not provide affirmative evidence that service occurred. Id.

The record includes an order, dated April 13, 2023, ordering Alcoser to appear at

a hearing by telephone conference on May 5, 2023. The order setting the hearing does

not contain a certificate of service or any other indication that it was served on Alcoser.

Further, the record does not contain a notice of trial. The trial court’s verbal assertion

that it sent notice does not show compliance with Rule 21a. See TEX. R. APP. P. 21a(e).

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Neither does the judgment contain a recitation that Alcoser was given due notice of trial.

See P. Bosco & Sons Contracting Corp. v. Conley, Lott, Nichols Mach. Co., 629 S.W.2d 142, 143

(Tex. App.—Dallas 1982, writ ref’d n.r.e.) (Recitation in judgment that proper notice was

given is prima facie evidence of proper notice and must be accepted as true in the absence

of proof to the contrary.). Nothing in the record constitutes prima facie evidence of the

fact of service and no presumption of receipt arose under Rule 21a. See Mathis, 166 S.W.3d

at 745. Therefore, the trial court abused its discretion in holding the May 5, 2023 hearing.

We sustain Alcoser’s third issue.

CONCLUSION

The trial court’s failure to grant Alcoser’s motion for continuance was an abuse of

discretion requiring reversal. See Kuykendall, 436 S.W.3d at 813. Due to our disposition

of Alcoser’s third issue, we need not reach his remaining issues. See TEX. R. APP. P. 47.1.

We reverse the trial court’s judgment and remand this cause for further

proceedings.

STEVE SMITH
Justice

Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Reversed and remanded
Opinion delivered and filed January 30, 2025
[CV06]

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