Opinion
No. 05-09-01372-CV
Opinion Filed January 28, 2011.
On Appeal from the 193rd Judicial District Court Dallas County, Texas, Trial Court Cause No. DC-07-02636.
Before Justices RICHTER, LANG, and MYERS.
MEMORANDUM OPINION
Juan A. Reyna, Jr., pro se, appeals the trial court's order dismissing his case for want of prosecution because he failed to appear for trial. Lawrence Mitchell did not file a brief on appeal. Reyna raises two issues on appeal that argue the trial court abused its discretion when it: (1) dismissed his suit for want of prosecution because he failed to appear at trial; and (2) failed to conduct a hearing on Reyna's motion to reinstate the case. We conclude the trial court abused its discretion when it dismissed Reyna's suit for failure to appear at trial. The trial court's order of dismissal is reversed and the case is remanded for further proceeding consistent with this opinion. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a); 47.4.
07I. FACTUAL AND PROCEDURAL BACKGROUND
Reyna, an inmate, sued his former criminal defense attorney, Mitchell, for breach of fiduciary duty. See Reyna v. Mitchell, No. 05-07-01259-CV, 2008 WL 5062954 (Tex. App.-Dallas Dec. 2, 2008, no pet.) (mem. op.). Attached to his original petition was Reyna's declaration of indigence. The day after Reyna filed his original petition, the trial court signed a notice of initial dismissal hearing. Id. at *1. Reyna wrote the district clerk, apparently in response to a letter he had received stating that he had failed to provide a copy of the original petition to serve the defendant. Id. Reyna advised the clerk that he did not have access to a copy machine because he was incarcerated and said that he was unsure if the earlier letter indicated that Mitchell had not been served. Id. Reyna requested the clerk to make a copy of his petition and serve Mitchell. Id. In a letter brief, Reyna repeated these concerns. Id. Also, Reyna requested that all hearings be conducted by telephone or by video so he could participate from the prison unit where he was incarcerated. Id. The trial court did not respond to or take any action on Reyna's request to attend the hearing by telephone or video conference. Id. at *2. The citation issued, but the officer was unable to locate Mitchell. Id. at *1. Then, the trial court signed a form "Dismissal Order" checking the box indicating that Reyna failed to appear at the hearing and failed to obtain service of Mitchell. Id. Reyna appealed and this Court reversed the trial court's dismissal order and remanded the case for further proceedings because the record did not show the trial court responded to or took any action on Reyna's request to attend the hearing by telephone or video conference. See id. at *2.
Reyna filed two additional declarations of indigence. The second declaration of indigence was filed after the trial court signed the first order of dismissal and the third was filed after the trial court signed the second order of dismissal.
On remand, the trial court initially signed an order that stated in part, "The Court will allow [Reyna] to appear by telephone at the aforementioned hearing, as well as all future hearings in this cause (so long as he is incarcerated), due to his incarceration." The trial court also signed a scheduling order that set the trial date and notified the parties that:
When no announcement is made for Plaintiff(s) or the Plaintiff(s) fail to appear, the Court may dismiss this case for want of prosecution, pursuant to: (i) Rule 165a TRCP; (ii) the Dallas County Local Civil Rules; and/or (iii) the Court's inherent power to dismiss cases not diligently prosecuted, with a hearing on dismissal for want of prosecution to be held at the time of trial.
Later, Reyna again filed a motion requesting to appear at the hearing and trial by telephone or video and stated that the Court must contact the prison warden. The record shows that the trial court responded to Reyna's motion by ordering Mitchell to respond to the motion. Specifically, the order stated:
In other motions, Reyna advised the trial court that he is incarcerated and the trial court must contact the warden in order for video or telephone conferencing arrangements to be made.
Concerning the Motion to Appear by Telephone or Video, the Court notes that Tex. Civ. Prac. Rem. Code § 30.012 prohibits such appearances without an agreement by the parties (and even, then, subject to subsection (b) of the same section). Therefore, the Court further ORDERS that [Mitchell] notify the Court within 14 days whether he agrees or not to such appearance by telephone.
(Emphasis in orig.). The record does not show that Mitchell responded to Reyna's motion as ordered by the trial court. Also, the record does not show that the trial court took any action on Reyna's motion by either granting or denying it. On the day of trial, the trial court signed a form "Dismissal Order" in which the trial court checked the box indicating it found "The Part(ies) seeking affirmative relief were previously Ordered to appear for final trial of this cause on the date set forth in the Trial Notice / Scheduling Order, and said Part(ies) failed to appear for final trial of this cause."
Section 30.012 of the Texas Civil Practice and Remedies Code applies to hearings of preliminary matters or witness testimony at trial. Tex. Civ. Prac. Rem. Code Ann. § 30.012 (West 2008). It does not apply to an inmate plaintiff's appearance at trial.
II. TRIAL COURT'S ORDER OF DISMISSAL
In issue one, Reyna argues the trial court abused its discretion when it dismissed his suit for want of prosecution because he failed to appear at trial. Reyna claims the trial court failed to rule on his motion to appear by telephone or video conference. Also, he argues the trial court erred when it applied Texas Civil Practice and Remedies Code section 30.012 because application of that section allowed Mitchell to determine whether Reyna could appear by telephone or video conference when it is the trial court that must make that determination.
A. Standard of Review
A trial court may dismiss a case for want of prosecution under rule 165a for failure to appear or failure to comply with the supreme court time standards. Tex. R. Civ. P. 165a(1), (2). In addition, a trial court has the inherent power to dismiss a case for want of prosecution. See Tex. R. Civ. P. 165a(4); Villarreal v. San Antonio Truck Equip., 994 S.W.2d 628, 630 (Tex. 1999). An appellate court reviews a trial court's dismissal for want of prosecution under an abuse of discretion standard. Green v. Kaposta, No. 05-08-01041-CV, 2009 WL 4045249, *1 (Tex. App.-Dallas Nov. 24, 2009, no pet.) (mem. op.); Reyna, 2008 WL 5062954 at *2; 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.). A trial court abuses its discretion when it acts without reference to any guiding rules or principles. Green, 2009 WL 4045249 at *1; Reyna, 2008 WL 5062954 at *2; In re Marriage of Bolton, 256 S.W.3d at 833.
B. Applicable Law
Although an inmate has a constitutional right to access the civil trial courts, that right is not absolute or without limits. Reyna, 2008 WL 5062954 at *2; In re Marriage of Bolton, 256 S.W.3d at 833. However, when the trial court 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. Reyna, 2008 WL 5062954 at *2; In re Marriage of Bolton, 256 S.W.3d at 833; Boulden, 133 S.W.3d at 886-87. In suits brought by an inmate in a trial court in which an affidavit or unsworn declaration of inability to pay costs is filed by the inmate, the trial court may hold a hearing at a jail or facility operated by or under contract with the department or may conduct the hearing with video communications technology that permits the trial court to see and hear the inmate and that permits the inmate to see and hear the court and any other witness. Tex. Civ. Prac. Rem. Code Ann. §§ 14.002, 14.008(a) (West 2002). Or, the trial court may consider the case on submission by requiring that written statements be submitted and copies be provided to the inmate. Id. § 14.009; see also McClain v. Terry, 320 S.W.3d 394, 397 (Tex. App.-El Paso 2010, no pet.).
C. Application of the Law to the Facts
The record shows that Reyna gave notice to the trial court that he was an inmate and could not physically appear in court, and being indigent, he could not afford to retain the services of an attorney to appear on his behalf. Reyna moved to appear at the hearings and trial by telephone or video conference. However, the trial court did not rule on Reyna's request. Instead, the trial court ordered Mitchell to respond to Reyna's motion and gave Mitchell the power to decide whether Reyna could appear by telephone conference. Then, the trial court dismissed Reyna's lawsuit because he failed to appear at trial. By requiring Reyna to appear at trial while not acting on his motion to conduct the trial by telephone or video conference, the trial court effectively closed the courthouse doors to him. Green v. Kaposta, No. 05-08-01041-CV, 2009 WL 4045249, *1 (Tex. App.-Dallas Nov. 24, 2009, no pet.) (mem. op.). As we stated in the first appeal in this matter, under similar circumstances, this Court and other courts have concluded such dismissal is an abuse of discretion. See Reyna, 2008 WL 5062954 at *2; Green, 2009 WL 4045249 at *1. Accordingly, we conclude the trial court abused its discretion when it dismissed Reyna's case because he failed to appear at trial. Issue one is decided in favor of Reyna. Based on our resolution of issue one, we need not decide Reyna's second issue.
III. CONCLUSION
The trial court erred when it dismissed Reyna's suit for want of prosecution because he failed to appear at trial.
The trial court's order of dismissal is reversed and the case is remanded for further proceedings consistent with this opinion.