                                   NO. 07-05-0004-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL E

                                  MARCH 16, 2009
                          ______________________________

                                 LAWRENCE HIGGINS,

                                                                Appellant

                                             v.

                        RANDALL COUNTY SHERIFFS OFFICE,

                                                      Appellee
                        _________________________________

             FROM THE 251 DISTRICT COURT OF RANDALL COUNTY;

                  NO. 50,458C; HON. PATRICK PIRTLE, PRESIDING
                        _______________________________

                               Memorandum Opinion
                         _______________________________

Before QUINN, C.J. and CAMPBELL, J., and REAVIS, S.J.1

       Lawrence Higgins appeals from the dismissal of his lawsuit against the Randall

County Sheriff’s Office (the County) for want of prosecution. He contends that 1) the trial

court erred in dismissing his lawsuit for his failure to appear at a dismissal docket when he

was incarcerated, and 2) the trial court failed to rule on his motion for the issuance of a

bench warrant to secure his presence at trial. We disagree and affirm the order.



       1
       Don H. Reavis, Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon 2005).
         Background

         Higgins filed a lawsuit on September 17, 2001, alleging that the County was

negligent in allowing him to be attacked by another jail inmate. Although Higgins filed a

request for a jury trial and sought information on the status of the lawsuit on occasion, the

clerk’s record does not show that the County was ever served with process. Furthermore,

the trial court notified him that the case was set on its dismissal docket for April 30, 2004,

and that it would be dismissed for want of prosecution pursuant to Texas Rule of Civil

Procedure 165a upon his failure to appear and show good cause why it should be retained.

In response, Higgins moved for the issuance of a bench warrant and for a continuance so

that a bench warrant could be issued securing his attendance at the hearing. Yet, the trial

court did not rule on either motion. Rather, on August 18, 2004, it signed an order

dismissing the suit for want of prosecution.2 Appellant then moved to reinstate the cause

on the basis that he had shown due diligence in pursuing the cause. The latter was

overruled by operation of law.

         Authority

         Litigants may not be denied access to courts simply because they are inmates.

Hudson v. Palmer, 468 U.S. 517, 523, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). However,

an inmate’s right to appear in person must be weighed against a number of factors

including the cost and convenience of transporting him to the courtroom, the security risk

he presents to the court and public, the substantial nature of his claims, whether resolution

can be reasonably delayed until his release, whether the prisoner can and will offer

admissible, non-cumulative testimony that cannot be effectively presented by deposition,

         2
             The order of dism issal stated that no request for setting or continuance had been presented to the
court.

                                                         2
telephone, or some other means, whether his presence is important for judging his

demeanor and credibility, whether the trial or hearing is to the court or a jury, and the

probability of success on the merits. In the Interest of Z.L.T., 124 S.W.3d 163, 165 (Tex.

2003). Additionally, the inmate has the burden to address the foregoing indicia when

seeking a bench warrant. Id. at 166. If he fails to do so, the trial court does not abuse its

discretion in either denying the motion for such a warrant or in failing to rule upon it. See

Allen v. Rushing, 129 S.W.3d 226, 230 (Tex. App.–Texarkana 2004, no pet.) (stating there

was no reversible error in not ruling on a request to appear at a hearing on a motion to

dismiss when the request did not state what the testimony would be and the litigant had

failed to serve summons on the main defendant); Ringer v. Kimball, No. 02-07-407-CV,

2008 Tex. App. LEXIS 9110 at *5 (Tex. App.–Fort Worth December 4, 2008, no pet. h.)

(stating there is no abuse of discretion in denying a bench warrant when the inmate fails

to meet his burden to prove his entitlement).

       Here, Higgins merely requested that a bench warrant be issued; he did not supply

any information with respect to the factors the court must consider in granting his request.

Nor did he request or propose any alternative means of attendance at the hearing such as

by telephone or deposition. Given these circumstances and the fact the record does not

show any attempt to serve the County with citation in the two and one-half years since the

litigation began, we find no error on the part of the trial court in dismissing for want of

prosecution.

       Accordingly, the order of dismissal is affirmed.



                                                  Per Curiam


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