                             NUMBER 13-07-00694-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


RICHARD EUGENE SIMMONS,                                                      Appellant,

                                            v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE -
INSTITUTIONAL DIVISION AND CORRECTIONS
CORPORATION OF AMERICA,                                                       Appellee.


                    On appeal from the 197th District Court
                          of Willacy County, Texas.


                          MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Yañez and Benavides
            Memorandum Opinion by Chief Justice Valdez

              Richard Eugene Simmons, an inmate appearing pro se, appeals the trial

court’s order dismissing his personal injury suit for want of prosecution. In three issues,

Simmons claims that the trial court abused its discretion by (1) dismissing his case for
failure to appear; (2) dismissing the case without ruling on his motion for bench warrant;

and (3) not ruling on his motion to vacate the judgment and reinstate the case. We reverse

and remand.

                                               I. BACKGROUND

        On October 31, 2005, Simmons, proceeding pro se and in forma pauperis, sued the

Texas Department of Criminal Justice–Institutional Division (“TDCJ”) and Corrections

Corporation of America for personal injuries he allegedly sustained when a guard

accidently dropped a “gas grenade” in Simmons’s dormitory during a routine patrol.1 TCDJ

answered Simmons’s petition on April 4, 2006.                      Although the record indicates that

Corrections Corporation was served with citation, it does not contain any pleading filed by

Corrections Corporation. On August 10, 2006, Simmons filed a change of address form

indicating that he was released on parole and notifying the clerk of his new address.

        On August 1, 2007, the trial court issued an order setting a hearing for dismissal for

want of prosecution. The order stated that the case would be dismissed unless “in open

[c]ourt good cause be shown for the case to be maintained on the docket.” Simmons

subsequently filed the following: (1) an affidavit to show good cause; (2) a change of

address form; (3) a motion to issue a bench warrant and order to appear; (4) a motion for

appointment of counsel; and (5) a motion to provide a copy of the record. According to

Simmons’s affidavit: he was re-incarcerated on a “technical parole violation”; he lost all of

the pleadings and papers relating to his suit; and TDCJ did not permit him to copy a

manual on the use of force, which was necessary to fully investigate the claims.


        1
           Sim m ons filed suit without com pleting TDCJ’s grievance system procedure. Therefore, the trial
court stayed any action on the suit until com pletion of the grievance system procedure. See T EX . C IV . P RAC .
& R EM . C OD E A N N . § 14.005(c) (Vernon 2002). On January 4, 2006, Sim m ons filed a com plete step-two
grievance form , which stated that no further action was warranted.
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          The trial court did not act on any of Simmons’s motions. Instead, on September 6,

2007, the trial court dismissed Simmons’s suit for want of prosecution. On October 5,

2007, Simmons filed a motion to vacate judgment and reinstate the case. The record does

not show any ruling by the trial court on Simmons’s post-dismissal motion. This appeal

followed.

                                           II. DISCUSSION

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

standard. See WMC Mortgage Corp. v. Starkey, 200 S.W.3d 749, 752 (Tex. App.–Dallas

2006, pet. denied); Franklin v. Sherman Indep. Sch. Dist., 53 S.W.3d 398, 401 (Tex.

App.–Dallas 2001, pet. denied) (per curiam) (citing State v. Rotello, 671 S.W.2d 507, 509

(Tex. 1984)); see also Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex.

1999). The trial court abuses its discretion when it acts without reference to any guiding

rules or principles.       WMC Mortgage Corp., 200 S.W.3d at 752 (citing Jimenez v.

Transwestern Prop. Co., 999 S.W.2d 125, 129 (Tex. App.–Houston [14th Dist.] 1999, no

pet.)).

          A trial court may dismiss a case for want of prosecution under rule 165a for (1)

failure to appear or (2) failure to comply with the supreme court time standards. See TEX .

R. CIV. P. 165a(1), (2). In addition, the trial court has inherent power to dismiss a case for

want of prosecution. See Villarreal, 994 S.W.2d at 630 (“[T]he common law vests the trial

court with the inherent power to dismiss independently of the rules of procedure when a

plaintiff fails to prosecute his or her case with due diligence.”); Franklin, 53 S.W.3d at 401;

see also TEX . R. CIV. P. 165a(4).

          Although an inmate has a constitutional right to access the civil trial courts, that right


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is not absolute or without limits. In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003); In re

R.C.R., 230 S.W.3d 423, 426 (Tex. App.–Fort Worth 2007, no pet.). “[A]n inmate does not

have an absolute right to appear in person in every court proceeding.” In re Z.L.T., 124

S.W.3d at 165; see also Sweed v. City of El Paso, 139 S.W.3d 450, 452 (Tex. App.–El

Paso 2004, no pet.) (court should weigh preservation of correctional system’s integrity

against inmate’s right of access with goal of achieving balance that is fundamentally fair).

When the trial judge 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. Boulden v. Boulden, 133 S.W.3d 884, 886-87 (Tex. App.–Dallas 2004, no pet.);

see In re R.C.R., 230 S.W.3d at 426; Sweed, 139 S.W.3d at 452; In re Marriage of Buster,

115 S.W.3d 141, 145 (Tex. App.–Texarkana 2003, no pet.).

       The facts in this case are similar to the facts in In re Marriage of Bolton, 256 S.W.3d

832 (Tex. App.–Dallas 2008, no pet.). In that case, a pro se inmate could not personally

appear at the dismissal hearing for his divorce action because he was incarcerated and,

because he was indigent, he could not retain the services of an attorney to appear on his

behalf. Id. at 834. Additionally, the inmate had informed the trial judge of these facts in

his motions and letters, and he moved for a bench warrant or alternative means of

appearing. Id. The trial court ignored the inmate’s motions and dismissed the case

because he failed to appear. Id. The court of appeals held that the trial court abused its

discretion in dismissing the case. Id. The court’s rationale was that by requiring the inmate

to appear at a hearing, while not acting on his motion for a bench warrant or to conduct the

hearing by telephone conference or other means, the trial court effectively closed the




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courthouse doors to the inmate. Id. (citing Boulden, 133 S.W.3d at 886).

        This case is no different than Bolton. The record does not show that the trial court

ruled on Simmons’s motion for a bench warrant or that the trial court provided Simmons

with an opportunity to be heard, such as by affidavit, deposition, telephone, or other

effective means. See Boulden, 133 S.W.3d at 886-87. We conclude that the trial court

closed the courthouse doors in this case by not providing Simmons with an opportunity to

be heard at the dismissal hearing and that such action was an abuse of discretion. Id.

Simmons’s first and second issues are sustained.2

                                           III. CONCLUSION

        We reverse the trial court's order dismissing the case for want of prosecution and

remand this case to the trial court for further proceedings consistent with this opinion.




                                                         ROGELIO VALDEZ
                                                         Chief Justice
Memorandum Opinion delivered and
filed this the 30th day of October, 2008.




        2
         W e need not address Sim m ons’s third issue, as it would not further affect the outcom e of this
appeal. See T EX . R. A PP . P. 47.1.



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