Opinion
No. 11-15-00098-CV
08-04-2016
EX PARTE WILLIAM SOLOMON LEWIS
On Appeal from the 266th District Court Erath County, Texas
Trial Court Cause No. CV 33051
MEMORANDUM OPINION
Appellant, William Solomon Lewis, appeals the dismissal of his petition for expunction for want of prosecution. He asserts in two issues that the trial court abused its discretion when (1) it refused to reinstate his case and (2) it refused to grant his motion to hold a hearing in absentia, refused to serve his amended petition on respondents, and dismissed his petition. In response, the State, as Appellee, asserts that this court lacks the jurisdiction to hear this case. We affirm.
I. Background Facts
Appellant filed a petition for expunction to remove a 2001 arrest for assault from his criminal record. On November 3, 2014, while Appellant was incarcerated in a federal prison in Pennsylvania, he filed a pro se petition for expungement in the 266th District Court of Erath County. The trial court set the hearing for January 6, 2015, and notified Appellant; it held the hearing on January 6, as scheduled. On February 22, 2015, Appellant filed a motion for a hearing in absentia. On March 15, 2015, the trial court entered an order that dismissed Appellant's petition for want of prosecution. Appellant filed a motion to reinstate the case on March 25, 2015, and he attached a declaration that he was unable to attend the hearing because of his incarceration. The trial court denied Appellant's motion to reinstate, and he filed this appeal.
Appellant proceeded pro se in the case below, and he appears pro se in this appeal. --------
II. Analysis
We will first address the State's jurisdictional argument then address Appellant's second issue. We will then address Appellant's first issue.
A. This court has jurisdiction to hear this case.
In its brief, the State argues that this court lacks jurisdiction because Appellant's motion to reinstate did not extend the deadline for filing his notice of appeal and because he did not timely file his appeal. A notice of appeal is necessary to invoke this court's jurisdiction. TEX. R. APP. P. 25.1(a). Generally, an appellant in a non-accelerated appeal must file a notice of appeal within thirty days of the date that the trial court signs an appealable order. TEX. R. APP. P. 26.1. However, a timely filed postjudgment motion to reinstate extends the period to ninety days. TEX. R. APP. P. 26.1(a)(3). The trial court entered its order that dismissed the case on March 15, 2015. Appellant filed a motion to reinstate on March 25, 2015, but the State claimed the motion was defective and failed to extend the notice of appeal deadline. Appellant filed his notice of Appeal on April 14, 2015. As we explain below, we do not agree with the State's argument that this court lacks jurisdiction.
Section 132.001 of the Texas Civil Practice and Remedies Code provides that inmates' unsworn declarations must be in writing and made under the penalty of perjury and must substantially comply with the template or form provided in that section. TEX. CIV. PRAC. & REM. CODE ANN. § 132.001(c), (e) (West Supp. 2015). The omission of certain information from Appellant's declaration, namely his date of birth and county of incarceration, is not fatal. See United Rentals, Inc. v. Smith, 445 S.W.3d 808, 813 (Tex. App.—El Paso 2014, no pet.) (holding that omission of the declarant's address and date of birth was not fatal because the declarant included "under penalty of perjury" language); see also Owens v. State, 763 S.W.2d 489, 491 (Tex. App.—Dallas 1988, pet. ref'd) (holding that an inmate's unsworn declaration substantially complied with Sections 132.001-.003 where it declared personal knowledge and was subject to penalty of perjury, although it failed to include the inmate's identification number, county jail name, or place of incarceration).
The Texarkana Court of Appeals, in Teixeira v. Hall, examined the adequacy of an inmate's unsworn declaration that did not comport with the template provided in Section 132.001. 107 S.W.3d 805, 808-09 (Tex. App.—Texarkana 2003, no pet.). The Teixeira court stated that the basic question was whether, if the inmate had lied, perjury could be assigned to his declaration. Id. at 810. The Teixeira court looked to cases that involved affidavits under Rule 145 of the Texas Rules of Civil Procedure for guidance, and it concluded that those cases "have not held that . . . magic words are the keystone" to determining adequacy; rather, the factors determining adequacy were whether the statements were based on the affiant's personal knowledge and "whether the statement is so positive as to allow perjury to lie." Id. The Teixeira court concluded "[w]e see no reason to apply a stricter rule to declarations made under Section 132.001 by a prison inmate." Id.
In Gray v. Gray, a motion to retain did not include a discrete jurat or acknowledgement; however, it did contain a statement that "[b]eing presently incarcerated, I declare under penalty of perjury that the foregoing Motion is true and correct." No. 09-14-00332-CV, 2015 WL 1535684, at *4 (Tex App.—Beaumont Apr. 2, 2015, no pet.) (alteration in original). The Gray court held that because the "operative part of the jurat" that subjects the declarant to the penalty of perjury was included, the declaration was substantially compliant with the statutory requirements and substituted for a "sworn verification." Id. In the case before us, Appellant's motion to reinstate included a declaration with the same "penalty of perjury" provisions; thus, Appellant verified his motion, which extended the deadline to file his notice of appeal. Therefore, he timely appealed. We hold that we have jurisdiction to hear this appeal.
B. The trial court did not abuse its discretion when it dismissed the case.
Appellant claims that the trial court abused its discretion when it failed to grant his request to hold a hearing in absentia, failed to serve an amended petition, and dismissed his case for want of prosecution. We note that the clerk's record does not include an amended petition or a request to serve the amended petition. The burden is on Appellant to request a complete record. Roberts v. Wilson, 394 S.W.3d 45, 57 (Tex. App.—El Paso 2012, no pet.); see also TEX. R. APP. P. 34.5(a), (b), (c). This part of issue two is not before us.
As for Appellant's claim that the trial court should have granted his request for a hearing in absentia and should not have dismissed the case, we note that Appellant requested that the trial court set a hearing on his petition, which the trial court did. We note that a person who seeks affirmative relief, even though he is an inmate who cannot appear at a hearing due to incarceration, must request a continuance of the hearing until a later date in order to claim error. Brewer v. Taylor, 737 S.W.2d 421, 423 (Tex. App.—Dallas 1987, no writ) (citing Hobbs v. Hobbs, 691 S.W.2d 75, 77 (Tex. App.—Dallas 1985, writ dism'd)). The person that seeks affirmative relief cannot simply ignore the trial setting with impunity. Id. (citing Essex Int'l Ltd. v. Woods, 646 S.W.2d 322, 324 (Tex. App.—Dallas 1983, no writ)). Appellant requested a hearing date; the trial court set a date for the hearing and held the hearing on the specified date, but Appellant neither appeared nor filed a motion for continuance of the hearing.
Appellant does not complain that he did not receive notice of the hearing but, instead, complains that his motion for hearing in absentia, which was filed after the hearing, was not heard or granted. He cannot complain that the trial court abused its discretion when it dismissed his case for want of prosecution when he failed to appear for a hearing that he requested. Here, the issue constitutes invited error because Appellant may not claim as error an action that he induced. By his own request, Appellant asked the trial court to set the hearing; he obtained the relief that he sought. See id. (inmate who sued for malpractice failed to file a motion for continuance, announced "ready for trial," but failed to appear; trial court did not abuse its discretion when it dismissed case for want of prosecution and denied motion to reinstate); see also Bullock v. Drake, No. 11-98-00231-CV, 1999 WL 33748040, at *1 (Tex. App.—Eastland Dec. 8, 1999, no pet.) (not designated for publication); Davis v. Kemper Nat'l Ins. Co., No. 11-98-00233-CV, 1999 WL 33748038, at *1 (Tex. App.—Eastland May 13, 1999, no pet.) (not designated for publication). Furthermore, we may not reverse a judgment in a civil case based on unassigned error. Sepeda v. State, No. 14-14-00443-CV, 2015 WL 4366220, at *2 (Tex. App.—Houston [14th Dist.] July 16, 2015, pet. denied) (mem. op.) (holding that trial court did not abuse its discretion by dismissing for want of prosecution where inmate failed to object to the setting of a dismissal hearing and failed to appear). We overrule Appellant's second issue.
C. The trial court did not abuse its discretion when it denied Appellant's motion to reinstate.
In his first issue, Appellant argues that the trial court abused its discretion when it refused to reinstate his case. In response, the State argues that Appellant's motion to reinstate was unverified because Appellant's unsworn declaration did not contain his date of birth or the county where he was incarcerated. As we have previously explained, we held that Appellant substantially complied with Section 132.001(c) and (e). See United Rentals, 445 S.W.3d at 813; see also Owens, 763 S.W.2d at 491.
Even though we agree with Appellant that he verified his motion, the trial court did not abuse its discretion when it denied his motion to reinstate because Appellant failed to show how his failure to appear or move for a continuance of the hearing was not intentional or the result of conscious indifference. "The trial court's authority to dismiss for want of prosecution stems from two sources: (1) Rule 165a of the Texas Rules of Civil Procedure, and (2) the court's inherent power." Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999); see also Bevil v. Johnson, 307 S.W.2d 85, 87 (Tex. 1957). Rule 165a allows a trial court to dismiss upon the "failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice" or when a case is not disposed of within the appropriate time standards. TEX. R. CIV. P. 165a(1), (2). When a trial court dismisses a case for want of prosecution under its statutory power, it shall reinstate the case upon a showing that the movant's or his attorney's failure to appear was not intentional or the result of conscious indifference. TEX. R. CIV. P. 165a(3).
We review a trial court's order denial of a motion to reinstate under an abuse of discretion standard. Bevil, 307 S.W.2d at 87; see Quita, Inc. v. Haney, 810 S.W.2d 469, 470 (Tex. App.—Eastland 1991, no writ). A trial court abuses its discretion when it acts arbitrarily or without reference to guiding rules and principles. Morrow v. H.E.B., Inc., 714 S.W.2d 297, 298 (Tex. 1986). As a pro se litigant, Appellant had the duty to prosecute his claim with due diligence. Johnson v. McLean, 630 S.W.2d 790, 793 (Tex. App.—Houston [1st Dist.] 1982, no writ). Due diligence includes either appearing in court or filing a motion for a continuance. Brewer, 737 S.W.2d at 423. Inmate litigants have no right to appear personally in front of the courts. Id. Appellant neither appeared at the hearing nor moved for a continuance of the hearing. He also did not show how his failure to act was not intentional or the result of conscious indifference. The trial court did not abuse its discretion when it denied Appellant's motion to reinstate. We overrule Appellant's first issue.
III. This Court's Ruling
We affirm the order of the trial court.
MIKE WILLSON
JUSTICE August 4, 2016 Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.