Opinion
No. 05-07-01259-CV
Opinion filed December 2, 2008. DO NOT PUBLISH TEX. R. APP. P. 47.
On Appeal from the 193rd Judicial District Court Dallas County, Texas, Trial Court Cause No. DC-07-02636.
Before Justices MOSELEY, RICHTER, and FRANCIS.
MEMORANDUM OPINION
Juan A. Reyna, Jr., an inmate appearing pro se, sued his former criminal defense attorney, Lawrence B. Mitchell, for breach of fiduciary duty. Four months after Reyna filed suit, the trial court dismissed the suit for want of prosecution. Reyna appeals, asserting (among other things) that the trial court abused its discretion by dismissing the suit. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. We reverse the trial court's judgment and remand this case for further proceedings.
BACKGROUND
According to the clerk's record, on March 26, 2007, Reyna filed an original petition, declaration of indigence, and declaration relating to previous filings. The next day, the trial court signed a "Notice of Initial Dismissal Hearing," which provided in relevant part, with the bold language in the original:
This case is set for a hearing on the initial Dismissal Docket, as per Tex. R. Civ. P. 165a, for Friday, July 27, 2007, at 2:00 p.m. in the 193rd District Court Courtroom.
1. If no Defendant has been served as evidenced by no return of citation having been filed with the court on or before the Dismissal Hearing, the case is subject to being dismissed at the Dismissal Hearing; . . . .
Reyna wrote the district clerk on April 16, 2007, apparently in response to a letter he had received from the clerk stating that Reyna had failed to provide a copy of the original petition to serve the defendant. Reyna told the clerk he did not have access to a copy machine because he was incarcerated and also said he was unsure if the earlier letter indicated that the defendant had not been served. He asked the clerk to make a copy of his petition and serve the defendant "as soon as possible, so that I may prosecute the action." Reyna also referred to the clerk's duties on behalf of indigent plaintiffs pursuant to rule of civil procedure 145.
In a letter/brief filed May 2, 2007, Reyna repeated his concern about copying his petition and serving the defendant so that he could "prosecute this law-suit." He also requested all hearings be conducted by telephone or by video so he could participate from the prison unit where he was incarcerated.
Citation issued on May 7, 2007. The officer's return states he received the citation on May 8, 2007, together with a copy of the pleading. The return shows the officer was unable to locate the defendant on July 3, 2007. The citation and return were filed on July 12, 2007. On July 27, 2007, the trial court signed a form "Dismissal Order," in which the court checked a box indicating it found:
The record does not disclose how a copy of the pleading was made, or by whom.
In his brief, Reyna says that he responded to a notice from the constable that the address provided for service was "bad" by telling the constable he had provided the last known address for Mitchell, and, because of his incarceration, he had no access to a directory.
The Court had previously issued a Notice of Initial Dismissal Hearing, setting a date by which the Petition must be served, or the case would be dismissed without prejudice. Plaintiff failed to appear at the hearing, and failed to obtain service of the Defendant.
As a result of the foregoing, pursuant to the Texas Rules of Civil Procedure, the Local Rules of the Civil Courts of Dallas County, and the Court's inherent authority, this cause is hereby DISMISSED without prejudice, . . . .
This appeal followed.
DISMISSAL FOR WANT OF PROSECUTION
In his first issue, Reyna contends the trial court abused its discretion by dismissing his suit for want of prosecution. We review a dismissal for want of prosecution under an abuse of discretion standard. In re Marriage of Bolton, 256 S.W.3d 832, 833 (Tex.App.-Dallas 2008, no pet.); Boulden v. Boulden, 133 S.W.3d 884, 886 (Tex.App.-Dallas 2004, no pet.). An abuse of discretion occurs when the trial judge acts without reference to any guiding rules or principles. In re Marriage of Bolton, 256 S.W.3d at 833.
Appellee Mitchell did not file a brief.
The trial court's "Notice of Initial Dismissal Hearing" set the case on the dismissal docket pursuant to rule 165a. Under that rule, a trial court may exercise its discretion to dismiss for want of prosecution for: (1) failure to appear, or (2) failure to comply with the supreme court time standards. Tex. R. Civ. P. 165a(1), (2). See Villarreal v. San Antonio Truck Equip., 994 S.W.2d 628, 630 (Tex. 1999) (citing Tex. R. Civ. P. 165a).
See also Tex. R. Jud. Admin. 6, reprinted in Tex. Gov't Code Ann. tit. 2, subtit. F app. (Vernon Supp. 2008) (other than family law cases, time standard governing civil jury cases encourages trial or final disposition within eighteen months, twelve months for nonjury civil cases, from appearance date). The age of this case did not exceed the supreme court's time standards. See id.
Although an inmate has a constitutional right to access the civil trial courts, that right is not absolute or without limits. In re Marriage of Bolton, 256 S.W.3d at 833. However, when the trial judge determines an inmate should not be allowed to appear personally, the inmate should be allowed to proceed by affidavit, deposition, telephone, or other effective means. Id.; Boulden, 133 S.W.3d at 886-87. Reyna asserts he "did everything he could to respond to the trial court's notice of dismissal," and that the trial court deprived him of access to the court by not acting on Reyna's request to attend the hearing by telephone or video. The record does not show that the trial court responded to or took any action on Reyna's request. Under similar circumstances, this Court and other courts have concluded such dismissal for want of prosecution pursuant to rule 165a is an abuse of discretion. See In re Marriage of Bolton, 256 S.W.3d at 834; Boulden, 133 S.W.3d at 885, 887. See also In re R.C.R., 230 S.W.3d 423, 426-27 (Tex.App.-Fort Worth 2007, no pet.); Sweed v. City of El Paso, 139 S.W.3d 450, 452-53 (Tex.App.-El Paso 2004, no pet.); In re Marriage of Buster, 115 S.W.3d 141, 144-45 (Tex.App.-Texarkana 2003, no pet.). We reach that same conclusion here.
The trial court's dismissal order also refers to the court's inherent authority to dismiss cases. In addition to authority under rule 165a, the trial judge has inherent power to dismiss a case for want of prosecution when a plaintiff fails to prosecute his case with due diligence. Villarreal, 994 S.W.2d at 630; In re Marriage of Bolton, 256 S.W.3d at 833. But when a court's dismissal notice indicates that a case may be dismissed under rule 165a, the trial judge abuses its discretion by invoking the court's inherent authority to dismiss for failure to prosecute diligently. Lopez v. Harding, 68 S.W.3d 78, 81 (Tex.App.-Dallas 2001, no pet.) (citing Villarreal, 994 S.W.2d at 632). Because the dismissal notice stated the case was set for dismissal pursuant to rule 165a, dismissal for failure to prosecute this case diligently pursuant to the trial court's inherent authority was not authorized. We resolve Reyna's first issue in his favor.
APPELLATE RECORD
In his second issue, Reyna contends the trial court should have provided him with an appellate record. We note the record on appeal consists of the clerk's record, but not a reporter's record of the dismissal hearing. We have explained to Reyna in previous orders that the rules of appellate procedure provide that an appellant who is indigent may have the record filed in this Court without advance payment of costs, but those rules do not require that the appellant be given his own copy of the record. See Tex. R. App. P. 20.1. To the extent Reyna is arguing that no reporter's record of the dismissal hearing was filed in this Court, the record does not show affirmatively that the hearing was recorded. Moreover, we conclude such record is not necessary to the disposition of this appeal. See Tex. R. App. P. 34.1. We resolve Reyna's second issue against him.
CONCLUSION
Having resolved Reyna's first issue in his favor, we reverse the trial court's dismissal order and remand this case for further proceedings.