Opinion
No. 05-08-01485-CV
Opinion Filed November 3, 2009.
On Appeal from the 95th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 08-8804-D.
Before Justices O'NEILL, FRANCIS, and LANG.
MEMORANDUM OPINION
Appellant Marshall Jackson Jr. appeals the trial court's order of dismissal for want of prosecution. In his sole issue on appeal, appellant asserts the trial court abused its discretion by entering an order of dismissal for want of prosecution as a result of appellant's failure to appear at the dismissal hearing. For the reasons below, we decide appellant's issue against him. The trial court's order is affirmed. Because the law to be applied in this case is well settled, we issue this memorandum opinion. See Tex. R. App. P. 47.2, 47.4.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant, an inmate of the Texas Department of Corrections who is proceeding pro se, filed this case in the trial court on July 21, 2008. In his petition, appellant sought a writ of habeas corpus to test the "constitutionality and validity" of a certain Texas statute.
In an August 21, 2008 "Notice of Hearing" that bore the cause number of this case, the trial court stated as follows:
The above referenced cause of action has been set for dismissal on:
Tuesday, September 2, 2008 at 1:00 p.m.
You must contact the 95th District Court Administrator, in person or by telephone on or before the above hearing to report the status of this cause.
Failure to appear at this hearing shall result in dismissal of this case for want of prosecution. Please contact the 95th District Court Administrator at 214-653-6361 with any questions.
Due to the high volume of cases set on the Court's docket, please do not call any earlier than one week prior to the above setting to report the status of this cause.
(emphasis original).
The record contains appellant's "Motion for an Order to Have Prison Administration to Make Petitioner Available for Personal Appearance Befor [sic] the Court Administrator on September 2, 2008 at 1:00 p.m.," which states it was executed August 29, 2008. That motion is file-stamped September 9, 2008. In that motion, in addition to requesting the trial court make him available for a personal appearance, appellant requested the trial court allow "the use of telephone or mail in lieu of personal appearances by attorneys" for motion hearings, pretrial conferences, scheduling, and the setting of trial dates pursuant to the Texas Rules of Judicial Administration. The record is silent as to the disposition of that motion.
In an "Order of Dismissal for Want of Prosecution" dated September 4, 2008, the trial court stated in relevant part
Plaintiff did not take certain action heretofore specified by the Court within the time period prescribed, and having not disposed of this case, the Court finds that this cause should be dismissed for want of prosecution pursuant to Texas Rule of Civil Procedure 165a. The Court finds that Plaintiff was duly notified of a dismissal hearing set on September 2, 2008 at 1:00 p.m. and did not take the necessary action. Accordingly,
IT IS ORDERED that the case is dismissed for want of prosecution with costs taxed against Plaintiff for which execution issue.
(emphasis original). This appeal timely followed.
II. DISMISSAL FOR WANT OF PROSECUTION
In his sole issue on appeal, appellant contends the trial court judge abused her discretion "when she entered an order of dismissal for want of prosecution as a result of [appellant's] failure to appear at his hearing Tuesday, September 2, 2008 at 1:00." Specifically, appellant argues the trial court's dismissal of this case for want of prosecution "based on [his] failure to appear at dismissal hearing" was "fundamentally unfair and denied [him] access to the courts, where [he] was unable to appear personally because he was incarcerated, the trial court denied his request for a bench warrant, and he was unable to appear by alternative means, such as telephone, affidavit, because trial court denied his motion to appear by such alternative means." No brief was filed in this Court by appellees.
A. Standard of Review
We review a dismissal for want of prosecution under an abuse of discretion standard. State v. Rotello, 671 S.W.2d 507, 509 (Tex. 1984); Crown Asset Mgmt., L.L.C. v. Bogar, 264 S.W.3d 420, 422 (Tex. App.-Dallas 2008, no pet.). The burden of proof rests on a litigant asserting an abuse of discretion because there is a presumption the action of the trial court was justified. Bogar, 264 S.W.3d at 422. A trial court abuses its discretion when it acts without reference to any guiding rules and principles. Id. (citing Cire v. Cummings, 134 S.W.3d 835, 839 (Tex. 2004)).
B. Applicable Law
A trial court's power to dismiss a suit for want of prosecution originates from two sources: (1) Texas Rule of Civil Procedure 165a and (2) the trial court's inherent authority. Id. (citing Villareal v. San Antonio Truck Equip., 994 S.W.2d 628, 630 (Tex. 1999)). Under rule 165a, a trial court may dismiss a suit when (1) a party fails to appear for a trial or hearing or (2) a suit is not disposed of within the time standards set by the Texas Supreme Court. See Tex. R. Civ. P. 165a. Independent of the rules of civil procedure, a trial court may dismiss a suit under its inherent authority if the plaintiff fails to prosecute the case with due diligence. Bogar, 264 S.W.3d at 422 (citing Villareal, 994 S.W.2d at 630).
The applicable time frame for non-family civil cases is (1) within eighteen months after appearance date for jury trials or (2) within twelve months after appearance date for bench trials. See Tex. R. Jud. Admin. 6(b). Appellant does not assert, and the record does not show, such time standards are relevant in this case.
As a general rule, we must affirm a trial court's judgment if an appellant does not challenge all independent bases or grounds that fully support the judgment. See Nobility Homes of Tex., Inc. v. Shivers, 557 S.W.2d 77, 83 (Tex. 1977); Oliphant Fin. LLC v. Angiano, No. 05-07-01443-CV, 2009 WL 2648125, at *1 (Tex. App.-Dallas Aug. 28, 2009, no pet. h.); Crown Asset Mgmt., L.L.C. v. Strayhorn, No. 05-07-01603-CV, 2009 WL 2784561, at *2 (Tex. App.-Dallas Sept. 3, 2009, no pet.) (mem. op.); see also Britton v. Tex. Dep't of Crim. Justice, 95 S.W.3d 676, 681 (Tex. App.-Houston [1st] 2002, no pet.) (basis for rule is appellate court must accept validity of unchallenged independent ground and thus any error in ground challenged on appeal is harmless).
C. Application of Law to Facts
In its August 21, 2008 "Notice of Hearing," the trial court informed appellant he "must contact the 95th District Court Administrator, in person or by telephone on or before the [September 2, 2008] hearing to report the status of this cause." (emphasis original). Appellant does not assert, and the record does not show, he contacted the court administrator in person or by telephone as directed. Additionally, in that same notice, appellant was informed " [f]ailure to appear at [the September 2, 2008] hearing shall result in dismissal of this case for want of prosecution." (emphasis original). Appellant does not assert, and the record does not show, he appeared at the September 2, 2008 hearing.
In its "Order of Dismissal for Want of Prosecution" dated September 4, 2008, the trial court stated in part
Plaintiff did not take certain action heretofore specified by the Court within the time period prescribed, and having not disposed of this case, the Court finds that this cause should be dismissed for want of prosecution pursuant to Texas Rule of Civil Procedure 165a. The Court finds that Plaintiff was duly notified of a dismissal hearing set on September 2, 2008 at 1:00 p.m. and did not take the necessary action. Accordingly,
IT IS ORDERED that the case is dismissed for want of prosecution with costs taxed against Plaintiff for which execution issue.
(emphasis original).
Appellant asserts the trial court erred by dismissing this case "as a result of [his] failure to appear at his hearing Tuesday, September 2, 2008 at 1:00." However, based on the wording of the trial court's August 21, 2008 notice and September 4, 2008 order, it is possible the trial court dismissed this case pursuant to its inherent authority to dismiss cases for want of prosecution because appellant did not contact the court administrator as directed. Cf. Keough v. Cyrus USA, Inc., 204 S.W.3d 1, 3 (Tex. App.-Houston [14th] 2006, pet. denied) (noting that where trial court's order of dismissal was unclear as to whether it was based upon rule 165a or inherent authority, either ground may have been relied upon). Appellant does not address this potential alternative, independent basis for dismissal or assert error regarding dismissal pursuant to such basis.
Because the trial court may have dismissed this case for want of prosecution pursuant to its inherent authority based on appellant's failure to contact the court administrator in person or by telephone as directed in the August 21, 2008 notice, appellant was required to address this independent basis for dismissal on appeal. See Nobility Homes of Tex., Inc., 557 S.W.2d at 83; Oliphant Fin. LLC, 2009 WL 2648125, at *1; Strayhorn, 2009 WL 2784561, at *2. Appellant did not do so. Therefore, we cannot conclude the trial court abused its discretion in this case. See Rotello, 671 S.W.2d at 509; Bogar, 264 S.W.3d at 422. Appellant's sole issue is decided against him.
III. CONCLUSION
Based on the record and the foregoing analysis, we decide against appellant on his sole issue. The trial court's dismissal order is affirmed.