                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                                §
 JAMES LEE SWEED,                                               No. 08-07-00132-CV
                                                §
                        Appellant,                                   Appeal from
                                                §
 v.                                                              120th District Court
                                                §
 JAY L. NYE, JAIME ESPARZA,                                   of El Paso County, Texas
 DISTRICT ATTORNEY OF EL PASO                   §
 COUNTY, TEXAS, EL PASO COUNTY                                    (TC # 2005-5667)
 DISTRICT ATTORNEYS OFFICE,                     §
 THE STATE OF TEXAS, and
 THE ATTORNEY GENERAL OFFICE                    §
 OF THE STATE OF TEXAS,
                                                §
                        Appellees.




                                          OPINION

        James Lee Sweed brings this restricted appeal complaining of the trial court’s dismissal for

want of prosecution. For the reasons that follow, we reverse and remand.

                     FACTUAL AND PROCEDURAL BACKGROUND

       On August 12, 2005, Sweed filed suit against James L. Nye, District Attorney Jaime Esparza,

the Office of the District Attorney, the State of Texas, and the Texas Attorney General alleging

claims for malicious prosecution and false imprisonment. In his petition, Sweed listed his address

as 5121 Danny Drive, El Paso, Texas 79924. On August 31, 2006, he filed a letter with the District

Clerk advising the court of a change of address to El Paso County Jail Annex, 12501 Montana,

El Paso, Texas 79938. On October 24, 2006, Sweed filed a “first no evidence motion summary

judgment” listing as his address the El Paso County Jail, P.O. Box 125, El Paso, Texas 79901. The
district court set a status conference for October 30, and sent notice to Sweed at the Danny Drive

address. The notice was returned as not deliverable.

          On October 31, the court set the Appellees’ motion to dismiss for want of prosecution for

hearing on November 6. Again notice was sent to the Danny Drive address and was returned

unclaimed. On November 6, the district court dismissed the suit for want of prosecution. That same

day, the court sent the dismissal order to the Danny Drive address which was returned undeliverable.

Two days later, the District Clerk sent Sweed notice of the dismissal at 12501 Montana, County Jail

Annex, El Paso, Texas 79938.

          Sweed filed notice of appeal on April 24, 2007, five and a half months after the trial court

dismissed his claim. See TEX .R.APP .P. 26.1(c)(providing that in a restricted appeal, notice must be

filed within six months after the judgment or order is signed). In response to a letter from this court,

Sweed filed an “Amended Notice of Appeal” on May 21, 2007, over six months after the trial court

dismissed his case. See TEX .R.APP.P. 25.1(f). We held that the notice of restricted appeal was not

timely filed and dismissed the case for want of jurisdiction. Sweed v. Nye, No. 08-07-00132-CV,

2009 WL 961945, *1, 2 (Tex.App.--El Paso April 9, 2009), judgment reversed by Sweed v. Nye, 323

S.W.3d 873 (Tex. 2010). The Supreme Court reversed and remanded, holding that a timely filed

notice of appeal, which was defective but which was timely amended, invokes the court of appeals’

jurisdiction for a restricted appeal. Id. Accordingly, we review Sweed’s restricted appeal on the

merits.

                                      RESTRICTED APPEAL

          A restricted appeal is a direct attack on a judgment. Wolf v. Andreas, 276 S.W.3d 23

(Tex.App.--El Paso 2008, review withdrawn). It is available for the limited purpose of providing

a party that did not participate at trial with the opportunity to correct an erroneous judgment.
Campbell v. Fincher, 72 S.W.3d 723, 724 (Tex.App.--Waco 2002, no pet.). To prevail on a

restricted appeal, Sweed must establish that: (1) he filed notice of the restricted appeal within six

months after the judgment was signed; (2) he was a party to the underlying lawsuit; (3) he did not

participate in the hearing that resulted in the judgment complained of and did not timely file any

postjudgment motions or requests for findings of fact and conclusions of law; and (4) error is

apparent on the face of the record. See TEX .R.APP .P. 26.1(c), 30; Alexander v. Lynda’s Boutique,

134 S.W.3d 845, 848 (Tex. 2004). Here, the Supreme Court’s decision in Sweed established that

notice of restricted appeal was timely filed within the six month time frame. There is no dispute that

Sweed is a party to the underlying lawsuit and no dispute that Sweed did not participate in the

hearing. No post-judgment motions appear in the record. Therefore, Sweed has sufficiently

established elements one, two, and three. The only remaining issue then is whether he has met the

fourth element by demonstrating that error is apparent on the face of the record.

                    STANDARD OF REVIEW AND APPLICABLE LAW

        The trial court’s authority to dismiss for want of prosecution is governed by Texas Rule of

Civil Procedure 165a as well as the court’s inherent power. See Villarreal v. San Antonio Truck &

Equip., 994 S.W.2d 628, 630 (Tex. 1999). Under Rule 165a(1), a trial court may dismiss a suit when

the party seeking affirmative relief fails to appear at trial or another hearing after receiving notice

of the setting. TEX .R.CIV .P. 165a(1); Villarreal, 994 S.W.2d at 630. A dismissal for failure to

appear under Rule 165a(1) is appropriate only when plaintiff had notice of (1) a trial on the merits;

(2) a dispositive hearing; or (3) a nondispositive hearing only if the notice stated that failing to

appear could result in disposition of the suit. Under common law, the trial court has the inherent

power to dismiss--independent of its authority under Rule 165a--when a plaintiff does not prosecute

its case with diligence. Villarreal, 994 S.W.2d at 630.
       A trial court cannot dismiss a case without giving the plaintiff notice of its intent to dismiss.

Villarreal, 994 S.W.2d at 630. The notice to dismiss must state whether the dismissal is: (1) for

failure to appear under Rule 165a(1); (2) for failure to comply with the Supreme Court’s time

standards under Rule 165a(2); or (3) for failure to diligently prosecute the suit under the court’s

inherent power. See Alexander, 134 S.W.3d at 850; Villarreal, 994 S.W.2d at 630. When a party

is not represented by counsel, the notice must be sent to the party. TEX .R.CIV .P. 165a(1); General

Elec. Co. v. Falcon Ridge Apts., Joint Venture, 811 S.W.2d 942, 943 (Tex. 1991). A dismissal

granted without notice violates the party’s due process rights and must be reversed. Villarreal, 994

S.W.2d at 630. We review a trial court’s dismissal for want of prosecution under an abuse of

discretion standard. See Villarreal, 994 S.W.2d at 630; see MacGregor v. Rich, 941 S.W.2d 74, 75

(Tex. 1997).

                                            ANALYSIS

       Sweed challenges the dismissal for want of prosecution because he did not receive proper

notice and was thus denied due process. Appellees do not claim that Sweed received notice. Instead,

they argue Sweed’s claims are barred by absolute immunity, and because Sweed’s claims fail to set

out any waiver of such immunity, his suit has no arguable or factual legal basis. We address these

arguments first.

       Appellees rely on Texas Civil Practice and Remedies Code sections 13.001 and 14.003.

Initially we note that any reliance on Section 13.001 is misplaced because Section 13.004 provides:

“This chapter does not apply to a claim governed by Chapter 14.” TEX .CIV .PRAC.&REM .CODE ANN .

§ 13.004 (West 2002). Chapter 14 of the Texas Civil Practice and Remedies Code governs a suit

“brought by an inmate in a district, county, justice of the peace, or small claims court in which an

affidavit or unsworn declaration of inability to pay costs is filed by the inmate.”
TEX .CIV .PRAC.&REM .CODE ANN . § 14.002. Accordingly, Sweed’s suit is governed by Chapter 14

and Section 13.001 does not apply. See TEX .CIV .PRAC.&REM .CODE ANN . § 13.004.

         Under Section 14.003(a), a trial court may dismiss an inmate’s suit if the court finds that

claims asserted therein are “frivolous or malicious.”                   TEX .CIV .PRAC.&REM .CODE ANN . §

14.003(a)(2). A claim is frivolous if it “has no arguable basis in law or in fact.” Id. § 14.003(b)(2).

Appellees argue that the trial court did not err because a district court is entitled to dismiss a

frivolous lawsuit before or after service of process, with or without a hearing, and such a decision

“may be affirmed on appeal if [Sweed’s] claims have no arguable basis in fact or law.” Appellees

further contend that “[a] dismissal may be upheld on appeal on grounds that are different than those

relied on by the trial court,” and a dismissal for want of prosecution may be affirmed on any legal

theory. In support of these contentions, they direct us to Polk v. Braddock, 864 S.W.2d 78

(Tex.App.--Dallas 1992, no writ). The problem with this argument is that an appellate court must

affirm the dismissal “if it was proper on any ground stated in the motion, even if it was granted on

an improper ground.” [Emphasis added]. See Polk, 864 S.W.2d at 79.

         The only ground stated in the motion to dismiss was “want of prosecution” and the record

does not indicate the trial court dismissed the suit for any other reason.1 While a plea to the

jurisdiction was filed by Appellees prior to the date of dismissal, the court has not ruled upon the

plea. Nothing in the record indicates the trial court dismissed the suit as frivolous, or dismissed the

suit on any other grounds other than those stated in the motion. Therefore, the only issue remaining

is whether the face of the record demonstrates that notice was provided to Sweed. It was not.



         1
            The dismissal order itself states: “Be it remembered that the Court, after due notice to the attorney and/or
prose of record in the above styled and numbered cause, that said cause would be dismissed, for want of prosecution
unless there was good cause being shown, is of the opinion that the following order should be entered.” [Emphasis
added].
       Before a lawsuit may be dismissed for want of prosecution, the trial court must mail notice

of its intention to dismiss and the date and place of the dismissal hearing to each attorney of record

to the address shown on the docket or in the papers on file. Villarreal, 994 S.W.2d at 630; see

TEX .R.CIV .P. 165a(1). These requirements are necessary to ensure the party whose case is subject

to dismissal has received due process. See Franklin v. Sherman Independent School Dist., 53

S.W.3d 398, 401 (Tex.App.--Dallas 2001, pet. denied). Failure to provide adequate notice of intent

to dismiss requires reversal. See GMAC v. Fleetwood Enterprises, Inc., No. 10-08-00055-CV, 2009

WL 754693, at *1 (Tex.App.--Waco March 18, 2009, no pet.)(memorandum opinion), citing Dueitt

v. Arrowhead Lakes Property Owners, Inc., 180 S.W.3d 733, 737 (Tex.App.--Waco, 2005, pet.

denied).

       In a restricted appeal, the face of the record includes all documents and evidence before the

trial court when it rendered its judgment and a reporter’s record if one exists. Falcon Ridge

Apartments, 811 S.W.2d at 944; see Norman Communications v. Texas Eastman Co., 955 S.W.2d

269, 270 (Tex. 1997). When notice bears an incorrect address, it consitutes error on the face of the

record. See Mann, Frankfort, Stein & Lipp, P.C. v. Fleetwood Management. Corp, No. 01-99- 0927-

CV, 2000 WL 280438, at *2 (Tex.App.--Houston [1st Dist.] March 16, 2000, no pet.); see also

General Motors Acceptance Corp. v. City of Houston, 857 S.W.2d 731, 733-34 (Tex.App.--Houston

[14th Dist.] 1993, no writ)(because both notice of intent to dismiss and dismissal order contained

improper and incomplete address, trial court abused discretion in refusing to reinstate case).

       The record establishes that notice was sent to the Danny Drive address and returned as

undeliverable. The record also shows that previous notices sent to the Danny Drive address were

returned undeliverable. Because Sweed properly updated his address with the court, notice was

inadequate on the face of the record. See Dickerson v. Sonat Exploration Co., 975 S.W.2d 339, 342-
42 (Tex.App.--Tyler 1998, pet. denied)(holding that the trial court erred in failing to mail the notice

of intent to dismiss to the more recent address included on the lawyer’s letterhead instead of to the

address listed on the party’s live pleading); Transoceanic Shipping Co., Inc. v. General Universal

Systems, Inc., 961 S.W.2d 418, 419-20 (Tex.App.--Houston [1st Dist.] 1997, no pet.)(the court held

there was error on the face of the record indicating Transoceanic did not receive the trial setting

notice mailed by the clerk where notice was mailed to Transoceanic’s counsel’s former address and

returned undeliverable, and the court noted that whether Transoceanic’s counsel was at fault by

failing to provide a current mailing address was not a consideration on appeal by writ of error, a

non-equitable proceeding); Fleetwood, 2009 WL 754693, at *4 (holding dismissal for want of

prosecution improper where notice of hearing was mailed to an address that was different from the

most recent filings and the record and envelopes were returned undeliverable, and noting that when

the notice was returned undeliverable, court personnel should have “reexamine[d] the file to

determine if there [was] evidence of a more recent address”). We sustain Issue One and reverse and

remand.



August 26, 2011
                                                       ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Rivera, JJ.
