                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo

                                      No. 07-17-00066-CV


                         DONOVAN DWIGHT SIMMS, APPELLANT

                                              V.

                              JOHN R. GONZALES, APPELLEE

                          On Appeal from the County Court at Law No. 2
                                       Potter County, Texas
               Trial Court No. 101,846-2, Honorable Pamela Cook Sirmon, Presiding

                                       August 6, 2018

                               MEMORANDUM OPINION
                       Before CAMPBELL and PIRTLE and PARKER, JJ.


          Appellant, Donovan Dwight Simms, an inmate proceeding pro se, raises two

issues challenging the trial court’s dismissal of his lawsuit against Gonzales. We will

affirm.


                             Factual and Procedural Background


          Appellant is currently serving a prison sentence with the Texas Department of

Criminal Justice – Institutional Division. On August 16, 2013, he filed a lawsuit in the
justice court against Gonzales, a correctional officer, alleging gross negligence,

destruction of property, and/or assault. Appellant was unable to serve Gonzales and the

suit was dismissed.    Appellant perfected an appeal to the county court at law, but

Gonzales was still not served with process.        The suit was dismissed for want of

prosecution in July of 2015.     Appellant then filed an appeal to this Court, and we

determined that appellant had timely requested a setting from the trial court before

dismissal of his suit. See Simms v. Gonzales, No. 07-15-00334-CV, 2016 Tex. App.

LEXIS 3220, at *2-3 (Tex. App.—Amarillo Mar. 29, 2016, no pet.) (mem. op.).

Accordingly, we remanded to the trial court for further proceedings. Id. at *3.


       On remand, the trial court conducted a hearing via teleconference on June 1, 2016,

and attempted to obtain clarification on the service issue. The record indicates that

appellant stated he had served Gonzales by serving his attorney: “I was in the process of

trying to find an address, but what happened – I guess the Attorney General – one of the

Assistant Attorney Generals had took the case when it was in the Court of Appeals and I

ended up serving him.” Upon further questioning by the court, appellant explained that

he had “served” this attorney with his appellate brief and motion for video teleconference.

The trial court concluded that appellant had not obtained service on Gonzales and

advised him that he had to “figure out a way to serve [Gonzales] or [his] case will be

dismissed.”


       Following the hearing and on its own initiative, the court contacted the

aforementioned lawyer at the Texas Office of the Attorney General to determine whether

he represented Gonzales. The attorney sent a letter dated June 23, 2016, to both the

trial court and appellant stating that neither he nor the Office of the Attorney General

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represented Gonzales. Appellant then sought to serve Gonzales by publication; the trial

court denied this request by order dated July 26, 2016.


       On October 10, 2016, the trial court advised appellant that his suit was set for

dismissal on January 25, 2017, “[u]nless written request for a setting is received or good

cause is shown for maintaining the case on the docket.” The trial court dismissed the

case on January 26, 2017. Appellant timely filed this appeal.


                                          Analysis


       By his first issue, appellant states that the trial court left the burden on him to

determine Gonzales’s address and obtain service of process on him. He maintains that

he wrote letters to various state agencies in an attempt to obtain Gonzales’s address and

advised the trial court of his inability to find the address, but that he received no help. He

asks: “The question now that arises is should the Appellant be burdened with serving the

Appellee and should his suit be thrown aside and the interest of justice be ignored

because of this?”


       Upon the filing of an original petition, “the clerk must promptly issue a citation and

deliver the citation as directed by the plaintiff. The plaintiff is responsible for obtaining

service on the defendant of the citation and a copy of the petition with any documents

filed with the petition.” TEX. R. CIV. P. 501.1(a). It is the responsibility of the party

requesting service to see that service is properly accomplished. Primate Constr., Inc. v.

Silver, 884 S.W.2d 151, 153 (Tex. 1994). A plaintiff’s duty to use diligence in effecting

service continues until the defendant is served. Reynolds v. Alcorn, 601 S.W.2d 785, 788

(Tex. Civ. App.—Amarillo 1980, no writ).


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       The record reveals that the only address appellant provided for service on

Gonzales was the address of the William P. Clements Unit of the Texas Department of

Criminal Justice. However, appellant’s petition acknowledged that Gonzales was no

longer employed at the Clements Unit. The justice court clerk informed appellant that he

was responsible for providing the necessary information to obtain service on the

defendant. Appellant did not do so.


       The cause was appealed to the county court at law on October 29, 2013, and, the

following March, appellant wrote to that court inquiring as to the status of the case. The

court replied, informing appellant that, “As the plaintiff, you are responsible for serving the

respondent with notice of the lawsuit, setting the case for trial and giving the respondent

notice of the hearing date and time. The Court and her staff cannot do these things for

you.” In response, appellant wrote to the court asking for assistance in finding Gonzales’s

address, serving Gonzales without knowing his address, or serving Gonzales by

publication. The record shows no further activity in the case until May 18, 2015, when

the court notified appellant the case would be dismissed in July unless he acted.


       Appellant advances the general proposition that trial courts have or should have

an obligation to assist him in effecting service of citation. However, appellant cites no

applicable authority establishing that anyone other than he had the duty to determine

Gonzales’s whereabouts and perfect service on him. It is not the duty of the trial court

clerk to seek out and locate the whereabouts of defendants for the benefit of a plaintiff.

See In re Buggs, 166 S.W.3d 506, 508 (Tex. App.—Texarkana 2005, orig. proceeding).

Moreover, pro se litigants have the same duty to comply with applicable laws and rules



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of procedure, and to prosecute their claims with due diligence, as all other litigants.

Clemens v. Allen, 47 S.W.3d 26, 28 (Tex. App.—Amarillo 2000, no pet.).


       We conclude that appellant’s claim that it was improper for him to bear the burden

of ensuring service of process on the defendant in his lawsuit lacks an arguable basis in

law. Therefore, we overrule appellant’s first issue.


       By his second issue, appellant contends that the trial court erred in dismissing his

suit for want of prosecution because he made a written request for a setting on December

27, 2016. We review a trial court’s dismissal for want of prosecution under a clear abuse

of discretion standard. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997) (per curiam).

An abuse of discretion occurs if the trial court acts without reference to any guiding rules

or principles or acts in an arbitrary or unreasonable manner. Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).


       The record contains a letter from appellant, dated December 27, 2016, in which he

requests a setting date. This letter was file-stamped by the clerk’s office on January 31,

2017. The date of the letter suggests that appellant composed it prior to the trial court’s

stated deadline of January 25, 2017. However, the record does not include a post-marked

envelope or other evidence of when the letter was placed in the prison mail system which

would allow us to determine when appellant gave the document to prison authorities for

mailing. Without this essential evidence, we cannot establish that appellant’s request for

a setting was timely made. Brooks v. TDCJ-ID, No. 13-04-00320-CV, 2005 Tex. App.

LEXIS 6018, at *5-6 (Tex. App.—Corpus Christi July 28, 2005, pet. denied) (mem. op.)

(no abuse of discretion by trial court when it dismissed inmate’s petition as untimely where



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record contained no copy of post-marked envelope or evidence establishing when petition

was placed in prison mail system; inmate’s documents dated prior to deadline were

insufficient to establish date); see Boone v. Different, No. 12-08-00468-CV, 2010 Tex.

App. LEXIS 627, at *2 (Tex. App.—Tyler Jan. 29, 2010, no pet.) (mem. op.) (declining to

hold that “date set forth beneath Appellant’s signature on his original petition is evidence

of when petition was received by the prison mail system.”).


       Because the record does not establish that appellant’s request for a setting was

timely, we cannot conclude that the trial court abused its discretion in dismissing his

lawsuit. We overrule appellant’s second issue.


                                        Conclusion


       Having overruled both of appellant’s issues, we affirm the decision of the trial court.




                                                         Judy C. Parker
                                                            Justice




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