REVERSE and REMAND; and Opinion Filed October 22, 2013.




                                         S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-13-00312-CV

                             LARRY D. TOLIVER, Appellant
                                        V.
                           RUTH ANTWINE-TOLIVER, Appellee

                      On Appeal from the 382nd Judicial District Court
                                  Rockwall County, Texas
                             Trial Court Cause No. 1-12-379

                             MEMORANDUM OPINION
                         Before Justices O’Neill, Lang-Miers, and Evans
                                   Opinion by Justice O'Neill
       Appellant Larry D. Toliver appeals the dismissal of his petition for divorce for want of

prosecution. According to Larry, the trial court erred in dismissing his divorce because he had

done everything he reasonably could to prosecute his case. For the following reasons, we

reverse and remand to the trial court for further proceedings.

       Larry is an inmate at the Texas Department of Corrections in Huntsville, Texas.         On

April 18, 2012, Larry filed a pro se petition for divorce from his wife Patsy Ruth Toliver. In his

original petition, Larry stated that he had forwarded a waiver of service to Patsy and expected

she would execute it. He also however requested the clerk to issue citation and serve Patsy. In

the alternative, he requested Patsy be provided “Notice of Suit,” by certified mail return receipt.
He also filed a letter directed to the clerk with an attached statement of his inability to pay costs,

supported by his inmate declaration.

           On June 27, 2012, the trial court sent Larry a letter notifying him that his case was set on

the July 20, 2012 docket. The letter stated he could appear by returning the letter and checking

the appropriate box or boxes indicating whether he wanted the case be set for trial, when the case

might be ready for trial, or whether he wanted the case dismissed.                                          On July 5, 2012, Larry

returned the letter notifying the trial court he had been incarcerated for almost eighteen years and

requesting the case be set for a non-jury trial. Larry also sent the clerk a separate letter inquiring

as to the status of his divorce.

           On July 12, Larry filed a “Motion for Bench Warrant” requesting he be permitted to

appear in person. In the alternative, he requested he be permitted to appear by conference call or

that his attached inmate declaration be accepted as sufficient to prove up his divorce.                                                      In

response, on July 18, 2012, the trial court sent Larry a letter notifying him that: (1) Patsy had

neither been served nor executed a waiver of service, (2) there may be an issue as to where the

divorce should have been filed, 1 and (3) either Petitioner or Respondent had to be present in

court to prove up the final divorce. The trial court notified Larry it would “hold” the case for

thirty days to give him an opportunity to review his options.

           On August 22, 2012, just over a month later, and about four months after he filed his

original petition, the trial court sent Larry a letter notifying him that the case was set for a

December 7, 2012 docket call to determine whether it should be dismissed for want of




     1
         Under Section 6.3041 of the Texas Family Code, a suit for divorce may not be maintained unless either the petitioner or the respondent
have been a domiciliary in Texas for the preceding six-month period, and a resident of the county in which the suit was filed. TEX. FAM. CODE
ANN. § 6.301 (West 2006). Here, suit was filed in Rockwall County, but it is unclear whether either respondent or petitioner was a legal resident
of Rockwall County in the six month period prior to suit being filed. The residency requirements of the family code are mandatory, but not
jurisdictional. See Svensen v. Svensen, 629 S.W.2d 97, 98 (Tex. App.—Dallas 1981, no writ).



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prosecution. Larry was informed that failure to appear and show good cause for retaining the

case on the docket would result in dismissal.

       According to Larry, on August 16, he promptly responded by sending the court a “Suit

for Writ of Mandamus,” an “Affidavit of Inability to Pay,” and a “Motion for Appointment of

Counsel.” On September 7, Larry sent the court a letter stating he had previously sent the above

filings, but that they were returned. He resent the filings which were received and filed on

September 18, 2012. In these filings, Larry again notified the trial court he was incarcerated and

indigent and stated he was unable to pay for an attorney. He directed the court to his petition

wherein he had requested Patsy be served if she did not execute a waiver. In particular, Larry

had asked the clerk to issue citation and serve Patsy in accordance with rule 103 if Patsy did not

“contact” the clerk’s office within fourteen days. He also requested, if necessary, that the court

“assure” compliance with “additional” notice of suit by certified mail return receipt requested.

Larry asked the trial court to hold his petition in “abeyance” and to serve Patsy. It does not

appear from our review of the record that the clerk ever issued the citation. On December 7,

2012, the trial court dismissed the case for want of prosecution. Larry appeals.

       We review a dismissal for want of prosecution under an abuse of discretion standard.

Oliphant Fin., L.L.C. v. Galaviz, 299 S.W.3d 829, 839 (Tex. App.—Dallas 2009, no pet.). A

trial court’s authority to dismiss a case for want of prosecution stems from two sources: (1)

Texas Rule of Civil Procedure 165a, and (2) the trial court’s inherent power. Villarreal v. San

Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999); Oliphant Fin., 299 S.W.3d at 839.

A trial court may dismiss a case under rule 165a on “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 time standards promulgated” by the supreme court. TEX. R. CIV. P.

165a(1), (2). In addition, the common law vests the trial court with the inherent power to dismiss

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independently of the rules of procedure when a plaintiff fails to prosecute its case with due

diligence. Villarreal, 994 S.W.2d at 630; Oliphant Fin., 299 S.W.3d at 839. In determining

whether a party has demonstrated a lack of diligence in prosecuting a claim, a trial court may

consider the entire history of the case, including the length of time the case was on file, the

extent of activity in the case, whether a trial setting was requested, and the existence of

reasonable excuses for delay. Id. In determining whether an inmate has demonstrated a lack of

diligence, a court should also be mindful of the inmate’s constitutional right to access the courts

and consider that an inmate cannot appear personally unless permitted by the court and may not

be able to appear through counsel because of indigency. See in re Marriage of Bolton, 256

S.W.3d 832, 834 (Tex. App.—Dallas 2008, no pet.).

       After reviewing the record, we conclude the trial court abused its discretion in concluding

Larry did not prosecute his divorce with reasonable diligence. See In re Marriage of Buster, 115

S.W.3d 141, 144 (Tex. App.—Texarkana 2003, no pet.). In his petition, Larry stated he was

attempting to procure a waiver of citation from Patsy, but if he failed to do so, he requested the

clerk to issue citation and to serve Patsy. Larry also filed an “affidavit” of indigence, supported

by his inmate declaration. When informed of the first docket call, he promptly responded and

“appeared” by returning the trial court’s letter and requesting his case be set for a non-jury trial.

He also sent the clerk a letter inquiring as to the status of his case. Shortly thereafter, Larry filed

a motion requesting a bench warrant or to be permitted to appear by telephone conference call.

After Larry was notified that Patsy had not been served, he again notified the trial court he was

indigent and incarcerated and requested Patsy be served. Just four months after he filed suit, the

trial court sent Larry notice of its intent to dismiss for want of prosecution. The trial court

subsequently dismissed Larry’s petition pursuant to that notice, less than eight months after he

filed suit. After reviewing the entire record, including Larry’s request for a jury setting, his

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indigency and request to have Patsy served, his filings in the trial court, and the length of time

the case was on file, we conclude the trial court abused its discretion in concluding Larry failed

to diligently prosecute his case. See Avery v. Avery, 05-12-00253-CV, 2013 WL 1896189, * 1

(Tex. App.—Dallas 2013, no pet.) (trial court abused its discretion in dismissing inmate’s

divorce when he had attempted, but failed, to obtain service of process on wife, and trial court

failed to notify him that wife had not been served so that he could seek alternative service). We

sustain Larry’s sole issue, and reverse and remand to the trial court for further proceedings.




                                                      /Michael J. O'Neill/
                                                      MICHAEL J. O'NEILL
                                                      JUSTICE


130312F.P05




                                                –5–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

LARRY D. TOLIVER, Appellant                          On Appeal from the 382nd Judicial District
                                                     Court, Rockwall County, Texas
No. 05-13-00312-CV         V.                        Trial Court Cause No. 1-12-379.
                                                     Opinion delivered by Justice O’Neill.
RUTH ANTWINE-TOLIVER, Appellee                       Justices Lang-Miers and Evans participating.

        In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and this cause is REMANDED to the trial court for further proceedings consistent
with this opinion.


Judgment entered this 22nd day of October, 2013.




                                                    /Michael J. O'Neill/
                                                    MICHAEL J. O'NEILL
                                                    JUSTICE




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