      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-07-00024-CV



                         National Golf Operating, P.S., L.P., Appellant

                                                  v.

                        Williamson County Appraisal District, Appellee


 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
        NO. 00-429-C368, HONORABLE BURT CARNES, JUDGE PRESIDING



                                           OPINION


               This is an appeal from a dismissal for want of prosecution in a property tax case.

Because we cannot conclude from this record that the district court abused its discretion in

dismissing the case, we will affirm its judgment of dismissal.


                                         BACKGROUND

               In August 2000, National Golf Operating, P.S., L.P., filed the underlying suit against

the Williamson County Appraisal District, protesting the appraised value that the District had set on

its property for the tax year 2000. Through subsequent pleading amendments, National Golf added

tax years 2001-03. On October 17, 2003, the district court sent notice to the parties that the case had

been placed on the dismissal docket and would be dismissed for want of prosecution unless good

cause was shown to maintain the case on the court’s docket. See Tex. R. Civ. P. 165a. The district
court retained the case, however, and set it for trial on June 9, 2004. The case was not reached on

that setting, and it was not re-set.

                On August 14, 2006, the district court issued a second dismissal notice informing

the parties that the case had been set on the dismissal docket for October 13 of that year. On October

10, 2006, National Golf filed a motion to retain the case on the district court’s docket and set it for

trial. At 9:15 a.m. on the scheduled day of the dismissal hearing, National Golf filed a motion

to refer the case to non-binding arbitration. See Tex. Tax. Code Ann. § 42.225(a) (West 2002). The

case was called on the district court’s dismissal docket as scheduled. During the hearing, the district

court, apparently dissatisfied with National Golf’s explanation that its trial counsel had been

consumed with other trials while the case was pending, stated, “I’m going to dismiss the case.

I think it’s just too long.” National Golf replied that the district court was first required to refer the

case to non-binding arbitration in light of the motion it had filed earlier that day. It argued that

section 42.225(a) of the tax code “doesn’t allow any discretion regarding allowing us to go to

arbitration if we request it.” Rejecting this entreaty, the district court dismissed the case by order

at 3:30 p.m. that day. National Golf appeals this judgment of dismissal.


                                              ANALYSIS

                A trial court may dismiss a case for want of prosecution under either its

inherent power or Rule 165a of the Texas Rules of Civil Procedure. Villarreal v. San Antonio Truck

& Equip., 994 S.W.2d 628, 630 (Tex. 1999); Tex. R. Civ. P. 165(a). We review a dismissal for want

of prosecution under an abuse-of-discretion standard. MacGregor v. Rich, 941 S.W.2d 74, 75

(Tex. 1997). In a single issue on appeal, National Golf contends that because it had invoked section

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42.225(a) of the tax code, the district court had no discretion but to refer the case to non-binding

arbitration.   See Reagan Nat’l Adver. v. Vanderhoof Family Trust, 82 S.W.3d 366, 370

(Tex. App.—Austin 2002, no pet.) (a trial court has no discretion to misapply the law). National

Golf does not contend that the district court abused its discretion in any other respect when

dismissing the case.

               Section 42.225(a) of the tax code states, in relevant part:


        On motion by a property owner who appeals an appraisal review board order under
        this chapter, the court shall submit the appeal to non-binding arbitration. The court
        shall order the non-binding arbitration in accordance with Chapter 154, Civil Practice
        and Remedies Code. . . .


Tex. Tax. Code Ann. § 42.225(a). Emphasizing the “shall” in this provision, National Golf argues

that section 42.225(a) imposed a mandatory duty on the district court to refer the case to non-binding

arbitration and not dismiss it. See Tex. Gov’t Code Ann. § 311.016 (West 2005). In National Golf’s

view, section 42.225(a) in effect trumps or divests the discretion the district court otherwise would

possess to dismiss cases for want of prosecution. We disagree.

               Statutory construction presents a question of law that we review de novo. State

v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). We seek to discern the legislature’s intent, as

manifested first and foremost in the statutory text. Id. We ascertain the legislature’s intent from the

plain meaning of the words chosen when possible. Id. To that end, we consider statutory language

in context, not in isolation. Jones v. Fowler, 969 S.W.2d 429, 432 (Tex.1998); see Tex. Gov’t Code

Ann. § 311.011(a) (West 2005). We also presume that the legislature acted with knowledge of the

background law. Acker v. Texas Water Comm’n, 790 S.W.2d 299, 301 (Tex. 1990). Words

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and phrases that have acquired a technical or particular meaning shall be construed accordingly.

Tex. Gov’t Code Ann. § 311.011(b) (West 2005).

               Although National Golf correctly observes that “shall” denotes a mandatory duty, see

Tex. Gov’t Code Ann. § 311.016, we must construe this legislative mandate in context with the

background law that we also presume the legislature knew. Acker, 790 S.W.2d at 301. The inherent

and rule-based power of trial courts to dismiss cases for want of prosecution is well-established

in Texas law. See Villarreal, 994 S.W.2d at 630; Tex. R. Civ. P. 165(a). We also observe that the

right to jury trial under the Texas Constitution is not only mandatory but “inviolate” when invoked,

Tex. Const. Ann. art. I, § 15, yet the fact that a party files a jury demand, pays the jury fee, and

obtains a jury trial setting does not alone preclude the trial court from dismissing the case for want

of prosecution. See Coven v. Heatley, 715 S.W.2d 739, 741 (Tex. App.—Austin 1986, writ ref’d

n.r.e.). Given this legal context, we cannot agree with National Golf that the legislature intended

section 42.225(a) to mean—as its argument would imply—that a party can avoid an otherwise-

supportable dismissal for want of prosecution by the bare act of invoking the statute at any moment

before the trial court dismisses the case. See Tex. Gov’t Code Ann. § 311.023(5) (West 2005) (when

ascertaining legislative intent, we may also consider the consequences of a particular construction).

               As this conclusion is dispositive of National Golf’s sole argument in support of its

issue, we overrule that issue.

                                          CONCLUSION

               We affirm the district court’s judgment of dismissal.




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                                           ____________________________________________

                                           Bob Pemberton, Justice

Before Justices Patterson, Puryear and Pemberton

Affirmed

Filed: March 13, 2008




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