Opinion
NO. 09-11-00254-CV
04-12-2012
ARCADE JOSEPH COMEAUX, JR., Appellant v. TOMMY GAGE, Appellee
On Appeal from the County Court at Law No. 2
Montgomery County, Texas
Trial Cause No. 10-07-07058 CV
MEMORANDUM OPINION
Arcade Joseph Comeaux, Jr., a Texas inmate, sued Sheriff Tommy Gage and other employees of the Montgomery County Sheriff's Department. The trial court dismissed Comeaux's lawsuit for want of prosecution. In seven appellate issues, Comeaux challenges the dismissal of his lawsuit and contends that his right to access the courts was violated. We affirm the trial court's judgment.
In issues one through six, Comeaux challenges the trial court's dismissal of his lawsuit. We review a dismissal for want of prosecution under an abuse of discretion standard. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997). A trial court may dismiss a lawsuit for want of prosecution when a party seeking affirmative relief fails to appear for any hearing or trial of which the party had notice or when a case is not disposed of within applicable time standards. Tex. R. Civ. P. 165a(1), (2); Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999). The trial court also has inherent power to dismiss when a plaintiff fails to prosecute his case with due diligence. Villarreal, 994 S.W.2d at 630. Before dismissing a party's lawsuit, the trial court must give the party notice and an opportunity to be heard. Id.
The trial court dismissed Comeaux's lawsuit for want of prosecution because "[n]o party seeking affirmative relief to said suit appeared[.]" See Tex. R. Civ. P. 165a(1). Comeaux contends that this dismissal was not preceded by a timely show-cause order or a formal hearing, which he argues violated his due process rights under the United States and Texas Constitutions. He complains the trial court lacked jurisdiction to dismiss the lawsuit and failed to consider his motion to proceed in forma pauperis, serve the defendants, address why the defendants were not served or did not answer, and grant his motion for bench warrant. Finally, Comeaux argues that the trial court abused its discretion by failing to consider his motion for extension of time and his motion to reinstate.
The record indicates that the trial court gave Comeaux notice that his lawsuit would be dismissed if he failed to show cause for retaining the lawsuit on the trial court's docket and instructed Comeaux to show cause by April 15, 2011. See Tex. R. Civ. P. 165a(1); see also Villarreal, 994 S.W.2d at 630. According to the certified mail receipt, the show-cause order was delivered to Comeaux on March 8. Comeaux filed his motion for bench warrant on April 1. On April 7, the trial court denied the motion, but expressly authorized Comeaux to respond in writing. See Johnson v. Handley, 299 S.W.3d 925, 929 (Tex. App.—Dallas 2009, no pet.) ("[A]n inmate does not have an unqualified right to appear personally before the court[,]" but may appear by an alternative effective means.). Comeaux contends he did not timely receive the order denying his motion for bench warrant. Nevertheless, per Rule 165a, Comeaux had received prior notice of the trial court's intention to dismiss his lawsuit. See Tex. R. Civ. P. 165a(1).
Moreover, the trial court was not required to hold an oral hearing or permit Comeaux to personally appear before dismissing Comeaux's lawsuit. See Gulf Coast Inv. Corp. v. NASA 1 Bus. Ctr., 754 S.W.2d 152, 153 (Tex. 1988) (per curiam); see also Starrett v. Johnson, No. 12-02-00191-CV, 2003 Tex. App. LEXIS 3224, at *3 (Tex. App.—Tyler Jan. 8, 2003, no pet.) (mem. op.). All that is required is notice and an opportunity to be heard, which the show-cause order provided. See Tex. R. Civ. P. 165a(1). Comeaux's failure to show cause by the dismissal deadline justified the trial court's dismissal of his lawsuit for want of prosecution. See id.; see also Villarreal, 994 S.W.2d at 630. The trial court's jurisdiction was not implicated by its dismissal of Comeaux's lawsuit. See Smith v. City of Blanco, No. 03-08-00784-CV, 2009 Tex. App. LEXIS 7889, at *14 (Tex. App.—Austin Oct. 8, 2009, no pet.) (mem. op.).
Finally, Comeaux's motion to reinstate was not verified, and the unsworn declaration that Comeaux included in his motion did not meet the requirements of section 132.001 of the Civil Practice & Remedies Code. See Tex. R. Civ. P. 165a(3); see also Tex. Civ. Prac. & Rem. Code Ann. § 132.001 (West Supp. 2011). The trial court would have abused its discretion if it had granted the motion.See McConnell v. May, 800 S.W.2d 194 (Tex. 1990); see also Carrera v. Marsh, 847 S.W.2d 337, 342 (Tex. App.— El Paso 1993, no pet.) (unverified motion for new trial). Finding no abuse of discretion by the trial court, we overrule issues one through six.
We also note that Comeaux based his motion to reinstate on claims that (1) the trial court's order denying his motion for bench warrant, in which the trial court instructed Comeaux to show cause by April 15, was not timely mailed or received; and (2) he was transferred to another unit on April 14. However, the trial court's show-cause order was signed March 3 and received by Comeaux on March 8, long before Comeaux's alleged transfer and the trial court's April 15 deadline.
In issue seven, Comeaux contends jail officials deprived him of access to the courts by denying him access to legal research materials. This argument, however, is not supported by clear and concise arguments or proper citations to authority. See Tex. R. App. P. 38.1(i). Because issue seven has not been properly briefed, we overrule it. See id.; see also Drum v. Calhoun, 299 S.W.3d 360, 364 (Tex. App.—Dallas 2009, pet. denied) (Although we construe pro se briefs liberally, a pro se party must still follow the same rules as litigants represented by a licensed attorney.). We affirm the trial court's judgment.
AFFIRMED.
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STEVE McKEITHEN
Chief Justice
Before McKeithen, C.J., Gaultney and Horton, JJ.