                            COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                  FORT WORTH


                                   NO. 2-09-270-CV


JOSHUA LEE PARNELL                                                        APPELLANT

                                            V.

JACQUELINE LOIS PARNELL                                                     APPELLEE

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           FROM THE 233RD DISTRICT COURT OF TARRANT COUNTY

                                        ------------

                          MEMORANDUM OPINION 1

                                        ------------

      In two points, appellant Joshua Lee Parnell, proceeding pro se, appeals the

trial court’s order dismissing his divorce case for want of prosecution. W e reverse

and remand.

                                 Background Facts

      In February 2009, Joshua, who is confined in a prison located in Fort

Stockton, filed an original petition for divorce in Tarrant County. The petition alleged,

among other facts, that Joshua’s marriage to appellee Jacqueline Lois Parnell has



      1
           See Tex. R. App. P. 47.4.
become insupportable because of a conflict of personalities and because Jacqueline

gave birth to another man’s child. Service of citation was attempted on Jacqueline

by certified mail at the address that Joshua had provided for her in the petition, 2 but

the certified letter was returned as unclaimed.

       Joshua wrote letters to the district clerk in April and May 2009 stating that he

could not appear in person because he is an inmate but requesting that his divorce

be finalized through an affidavit. The trial court’s coordinator responded to Joshua’s

May letter by informing him that his case was “not ready for prove up as service has

not been completed.” Also in May, the trial court issued a document titled “NOTICE

OF DISMISSAL FOR THE 233rd JUDICIAL DISTRICT COURT.” The notice states

in part,

               In accordance with Rule 165a, the following cases have been
       placed on a dismissal docket and will be DISMISSED FOR WANT OF
       PROSECUTION on July 29, 2009 at 9:00 A.M. unless there is good
       cause for the case to be maintained on the docket, or the case has
       been tried or otherwise disposed of by order of the court PRIOR TO
       THAT DATE.
               Failure to appear without excuse will result in the dismissal of the
       case for want of prosecution or finalization of this matter.
       Any subsequent filings after the dismissal notice has been
       submitted WILL NOT remove the case from dismissal docket.
       It will be necessary to contact the Court Coordinator if a case has
       subsequent filings OR your case will be dismissed.

The notice, which appellant concedes that he received, then stated in larger font that

a “personal appearance is required to remove a case from this dismissal docket” and

       2
        See Tex. R. Civ. P. 106(a)(2); Taylor v. State, 293 S.W .3d 913, 916 n.1
(Tex. App.—Austin 2009, no pet.).

                                            2
listed several cases that were scheduled for dismissal, including Joshua’s divorce

case.

        In June 2009, Joshua filed an unsworn declaration stating that the facts

contained in his petition were true, and he also filed a motion asking the court to

accept the declaration to support his petition. 3 In an apparent attempt to comply with

the trial court’s dismissal notice by contacting the court coordinator, Joshua also sent

a letter to the trial court that he titled “APPEARANCE BY MOTION FOR

ACCEPTANCE OF AFFIDAVIT OF TESTIMONY.” The letter reads in part as

follows:

               District Court,
               Enclosed find my “MOTION FOR ACCEPTANCE OF AFFIDAVIT
        OF TESTIMONY” to proceed with my original divorce suit I filed on
        2/24/09 . . . .
               Presently, I find myself completing my prison term and the Texas
        Department of Criminal Justice does not bench warrant prisoners to a
        civil matter/suit[.] [T]he motion affidavit self explains my presence in
        this suit.

Joshua also filed a proposed final divorce decree and other documents. On July 30,

2009 (five months after Joshua filed his suit and a month after he attempted to

appear in the proceeding by his affidavit), the trial court dismissed Joshua’s case for

want of prosecution, stating,

             After due notice, as required by the rules of civil procedure, the
        above styled caused [sic] was reached and called for trial on

        3
         Texas law allows inmates to use unsworn declarations in lieu of verified
affidavits. See Tex. Civ. Prac. & Rem. Code Ann. § 132.001 (Vernon Supp. 2009);
Smith v. McCorkle, 895 S.W .2d 692, 692–93 (Tex. 1995) (orig. proceeding).

                                           3
      07/29/2009, in the 233rd District Court, . . . and the respective petitioner
      failed to appear in person or by attorney and prosecute their cause of
      action in this case.
             THEREFORE, IT IS ORDERED that this cause of action be
      DISMISSED FOR W ANT OF PROSECUTION . . . .

Joshua filed notice of this appeal.

                        Dismissal for Want of Prosecution

      Joshua’s brief contains two related points contending that the trial court erred

by dismissing his case. W e review a trial court’s dismissal for want of prosecution

for an abuse of discretion. Ringer v. Kimball, 274 S.W .3d 865, 867 (Tex. App.—Fort

W orth 2008, no pet.); Sellers v. Foster, 199 S.W .3d 385, 390 (Tex. App.—Fort

W orth 2006, no pet.). To determine whether a trial court abused its discretion, we

must decide whether the court acted without reference to any guiding rules or

principles; in other words, we must decide whether the act was arbitrary or

unreasonable. Ringer, 274 S.W .3d at 867. Merely because a trial court may decide

a matter within its discretion differently than an appellate court would in similar

circumstances does not demonstrate an abuse of discretion. Id.

      A trial court has authority to dismiss a case for want of prosecution under

either rule of civil procedure 165a or the court’s inherent power to maintain and

control its docket. Id.; see Villarreal v. San Antonio Truck & Equip., 994 S.W .2d 628,

630 (Tex. 1999); Maida v. Fire Ins. Exch., 990 S.W .2d 836, 839 (Tex. App.—Fort

W orth 1999, no pet.). Under rule 165a, a trial court may dismiss a case for want of

prosecution on the failure of a party seeking affirmative relief to appear for a hearing


                                           4
or trial if the party had notice that dismissal could result from the party’s failure to

appear. Tex. R. Civ. P. 165a(1) (explaining that at “the dismissal hearing, the court

shall dismiss for want of prosecution unless there is good cause for the case to be

maintained on the docket”); Ringer, 274 S.W .3d at 867.

      A trial court may dismiss under its inherent power when a plaintiff fails to

prosecute his or her case with due diligence. Ringer, 274 S.W .3d at 867; see

Villareal, 994 S.W .2d at 630. However, when the trial court indicates that it is

dismissing a case under rule 165a instead of through its inherent power, we may

only affirm the dismissal if it was proper under rule 165a. See Villareal, 994 S.W .2d

at 631–33; Johnson-Snodgrass v. KTAO, Inc., 75 S.W .3d 84, 88 (Tex. App.—Fort

W orth 2002, pet. dism’d) (explaining that notice “that a case may be dismissed for

failure to appear at a hearing, as authorized by rule 165a, does not constitute

adequate notice that the trial court may exercise its inherent authority to dismiss a

case for want of prosecution”); Lopez v. Harding, 68 S.W .3d 78, 80–81 (Tex.

App.—Dallas 2001, no pet.).

      In part of his first point, Joshua contends that the trial court erred when it

dismissed his divorce case for want of prosecution because the court deprived him

of a meaningful opportunity to be heard. “It is well established that litigants cannot

be denied access to the courts simply because they are inmates.” Ringer, 274

S.W .3d at 867–68 (explaining that an inmate’s right of access to court must be

weighed against the correctional system’s integrity); see In re Z.L.T., 124 S.W .3d


                                           5
163, 165 (Tex. 2003). “A trial court’s refusal to consider and rule upon a prisoner’s

request to appear in a civil proceeding personally or by other means, such that the

inmate has been effectively barred from presenting his case, constitutes an abuse

of discretion.” In re B.R.G., 48 S.W .3d 812, 820 (Tex. App.—El Paso 2001, no pet.);

see In re R.C.R., 230 S.W .3d 423, 426 (Tex. App.—Fort W orth 2007, no pet.) (“[I]f

a court determines that a pro se inmate in a civil action is not entitled to leave prison

to appear personally in court, the inmate should be allowed to proceed by affidavit,

deposition, telephone, or other means.”); In re D.D.J., 136 S.W .3d 305, 314–15

(Tex. App.—Fort W orth 2004, no pet.) (reversing the trial court’s judgment because

it made no accommodation for an inmate litigant to participate at trial). And under

rule 165a, there must be an “opportunity to be heard before a case is dismissed for

want of prosecution.” Alexander v. Lynda’s Boutique, 134 S.W .3d 845, 852 (Tex.

2004).

      The Dallas Court of Appeals recently reviewed a trial court’s dismissal of an

inmate’s divorce case for want of prosecution. In re Marriage of Bolton, 256 S.W .3d

832, 833 (Tex. App.—Dallas 2008, no pet.). In Bolton, the appellant filed a motion

in the trial court to appear through a bench warrant or by alternative means like an

affidavit. Id. at 834. Like Joshua, the appellant also sent a letter to the court that

included a proposed final decree of divorce. Id. When the appellant did not appear

at trial, the judge dismissed the appellant’s case for want of prosecution. Id. The

Dallas court held,


                                           6
       By requiring Bolton 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 judge effectively closed the
       courthouse doors to Bolton. W e conclude, under these circumstances,
       the trial judge abused his discretion in dismissing the case for want of
       prosecution.

Id. (citation omitted). In a similar case, the Dallas court reversed a trial court’s

dismissal of a divorce case for want of prosecution because the appellant, who was

incarcerated, proposed means of appearing other than personal appearance, and

by implicitly denying the appellant’s proposal and dismissing his case, the trial court

closed its doors to the appellant and abused its discretion. Boulden v. Boulden, 133

S.W .3d 884, 886–87 (Tex. App.—Dallas 2004, no pet.); see In re Marriage of Buster,

115 S.W .3d 141, 144–45 (Tex. App.—Texarkana 2003, no pet.) (holding similarly).

       The trial court’s dismissal order reveals that the court dismissed Joshua’s

case only because he failed to appear at the July 29, 2009 hearing. 4 However, the

record shows that Joshua had explained to the court that he could not appear in

       4
         W e note that the trial court’s order does not state that it dismissed
Joshua’s case because the unsworn declaration that he filed failed to establish good
cause for maintaining his case on the court’s docket. See Tex. R. Civ. P. 165a(1).
W e also note that neither the trial court’s notice of dismissal nor its order of dismissal
indicates that the trial court dismissed Joshua’s case because he had not served
Jacqueline. See Shook v. Gilmore & Tatge Mfg. Co., 951 S.W .2d 294, 296 (Tex.
App.—W aco 1997, pet. denied) (explaining that “if the dismissal order lists a
particular reason for the dismissal, then the appellate court’s review is limited to
whether the dismissal was proper based on the ground specified by the trial court”);
see also Sellers, 199 S.W .3d at 391 (“Because the record in this case does not
contain formal findings of fact or conclusions of law and the dismissal order does not
specify the reason for dismissal other than to generally dismiss for ‘want of
prosecution,’ we must affirm the trial court’s judgment on any theory supported by
the record.”) (emphasis added).

                                            7
person (because he believed that he could not secure a bench warrant) and had

asked to appear and present testimony by his unsworn declaration. The trial court

did not expressly rule on Joshua’s request to appear by his unsworn declaration;

thus, it “dismissed [Joshua’s] case for failure to appear without providing [Joshua]

any means to appear. This is fundamentally unfair and denied [Joshua] access to

the courts.” See R.C.R., 230 S.W .3d at 427 (footnote omitted).

      W e recognize that Joshua could have filed a motion explicitly asking the trial

court to issue a bench warrant so that he could have traveled several hundred miles

from Fort Stockton to Fort W orth to appear in person at the dismissal hearing. But

inmates do not have an absolute right to appear personally at civil proceedings, and

they must justify the need for their appearance at such proceedings under factors

that include the cost and convenience of transportation. See Z.L.T., 124 S.W .3d at

165; Ringer, 274 S.W .3d at 867–68; Pedraza v. Crossroads Sec. Sys., 960 S.W .2d

339, 342 (Tex. App.—Corpus Christi 1997, no pet.). W e have not found authority

indicating that Joshua’s decision to not specifically request a bench warrant to allow

for his personal appearance waives his right of access to court when he made a

good faith request to appear by other means. Cf. Smith v. Tex. Bd. of Pardons and

Paroles, No. 02-02-00035-CV, 2003 W L 22724996, at *1 (Tex. App.—Fort W orth

Nov. 20, 2003, no pet.) (mem. op.) (holding that the appellant waived a complaint

concerning his right of access to court when the appellant did not request a bench

warrant or otherwise seek access to the court at the trial level).


                                          8
      For these reasons, we hold that the trial court abused its discretion by

dismissing Joshua’s case for want of prosecution. W e sustain his first point, and we

will not address his second point because the sustaining of his first point resolves

the appeal. See Tex. R. App. P. 47.1; Hawkins v. W alker, 233 S.W .3d 380, 395

n.47 (Tex. App.—Fort W orth 2007, pet. denied).

                                    Conclusion

      Having sustained Joshua’s first point, we reverse the trial court’s judgment

dismissing his case for want of prosecution, and we remand this case to the trial

court for further proceedings.



                                             TERRIE LIVINGSTON
                                             CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; W ALKER and MCCOY, JJ.

DELIVERED: June 10, 2010




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