      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-08-00080-CV




                                In re Michael Wayne Bohannan




                     ORIGINAL PROCEEDING FROM TRAVIS COUNTY



                            MEMORANDUM OPINION


               In 1995, Michael Wayne Bohannan sued the Texas Board of Criminal Justice and the

Texas Department of Criminal Justice in the 345th Judicial District Court of Travis County, cause

number 95-00141. In his suit, Bohannan contended that the defendants had unlawfully instituted a

policy by which good time credit earned by Bohannan prior to his release on mandatory supervision

was not restored following the revocation of supervision and his return to prison. The district court

dismissed Bohannan’s suit as frivolous. See Tex. Civ. Prac. & Rem. Code Ann. § 13.001

(West 2002).

               Bohannan appealed the dismissal to this Court. See Bohannan v. Texas Bd. of

Criminal Justice, 942 S.W.2d 113 (Tex. App.—Austin 1997, writ denied). We agreed with the

district court that several of Bohannan’s claims were frivolous, but we concluded that Bohannan’s

claim that the Board exceeded its statutory authority and divested him of a vested property right was

not. Id. at 117-20. Therefore, we reversed the dismissal of that portion of Bohannan’s cause,
severed it, and remanded it to the district court for further proceedings. Id. at 120. We affirmed the

dismissal in all other regards. Id.

               In this mandamus action, Bohannan complains that the district court did not afford

him the “further proceedings” to which he was entitled. In his mandamus petition, he describes what

happened following remand:


       Bohannan, on remand, again sought discovery from Defendants and supplemented
       his motion to enforce that discovery. Bohannan, and Defendants, filed Motions for
       Summary Judgment. Bohannan repeatedly wrote letters to the court’s coordinator
       requesting hearings on his outstanding motions and addressing his need for a bench
       warrant to appear at said hearings. The trial court allegedly set no fewer than four
       hearing dates with notice made. Defendants moved for a continuance for one hearing
       only. Bohannan never moved for a continuance yet no hearing was ever held.
       Bohannan, repeatedly, for the next ten years, notified the court of his address changes
       and of his desire to have the pleadings heard.


               In November 2007, Bohannan was notified by the district clerk that his cause had

been dismissed for want of prosecution in a blanket order signed on September 5, 2006. Bohannan

states that he was not given notice that his cause had been moved to the dismissal docket and that

he was not notified of the dismissal until November 2007.

               Because the time within which the district court has plenary power has expired, the

judgment of dismissal cannot be set aside except by bill of review for sufficient cause. See Tex. R.

Civ. P. 329b(f); also see Middleton v. Murff, 689 S.W.2d 212, 213 (Tex. 1985). A bill of review is

an independent equitable action brought by a party to a previous suit who seeks to set aside a

judgment that is no longer subject to a motion for new trial or appealable. Wembley Inv.

Co. Herrera, 11 S.W.3d 924, 926-27 (Tex. 1999). A bill of review is the proper method by which




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a party may attack the dismissal of its cause for want of prosecution without proper notice.

General Elec. Co. v. Falcon Ridge Apts., 811 S.W.2d 942, 944 (Tex. 1991).

                A bill of review is a new action that is commenced by an original petition filed in the

trial court that rendered the judgment in question. Urso v. Lyon Fin, Serv., Inc., 93 S.W.3d 276, 280

(Tex. App.—Houston [14th Dist.] 2002, no pet.). The person bringing the action is the plaintiff, and

proper service of citation must be made on the other original party or parties, who must defend the

bill of review proceeding. See Transworld Fin. Serv. v. Briscoe, 722 S.W.2d 407, 408 (Tex. 1987).

The petition must be verified and, if the petition is based on lack of proper service, the petition need

allege only the facts showing the failure of service. See Caldwell v. Barnes, 154 S.W.3d 93, 97

(Tex. 2004). When a bill of review plaintiff claims lack of service, the trial court should:

(1) dispense with any pretrial inquiry into a meritorious defense; (2) hold a trial at which the bill of

review plaintiff assumes the burden of proving that he was not served with process, thereby

conclusively establishing a lack of fault or negligence on his part; and (3) conditioned on an

affirmative finding that the bill of review plaintiff was not served, allow the parties to revert to their

original status with the burden on the original plaintiff to prove his or her case. Id. at 97-98.

                The petition for writ of mandamus is denied without prejudice to Bohannan’s right

to bring a bill of review action to set aside the dismissal of his original lawsuit.


                                                __________________________________________

                                                Diane Henson, Justice

Before Justices Patterson, Puryear and Henson

Filed: February 28, 2008

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