












 
 
 
 
 
 
                                      COURT
OF APPEALS
                                       SECOND
DISTRICT OF TEXAS
                                                   FORT
WORTH
 
 
                                        NO.
2-06-251-CV
 
 
IN THE
INTEREST OF R.C.R., C.A.R., 
 
AND M.R.R., MINOR
CHILDREN
                                                    
 
                                              ------------
 
            FROM THE 158TH
DISTRICT COURT OF DENTON COUNTY
 
                                              ------------
 
                                             OPINION
 
                                              ------------
In one issue, appellant Robert E. Ragland, a pro
se inmate, appeals the trial court=s
dismissal of his case for want of prosecution. 
We reverse and remand.
Background Facts




Beginning in November 2002 and continuing until
May 2006, appellant filed numerous documents with the trial court clerk
regarding a lien and subsequent levy on his aunt=s bank
account by the Attorney General=s office
for the collection of past-due child support owed by appellant.[1]  Although the account belonged to appellant=s aunt,
she had added his name to the account as a joint owner with right of
survivorship.  The levy occurred in
September 2002.  In a majority of the
documents appellant filed, he stated that he is incarcerated.
On July 13, 2004, appellant filed an AApplication
for Writ of Habeas Corpus Ad Prosequendam and to Dismiss Enforcement of Child
Support,@ which
he characterized as a collateral attack on the contempt judgment supporting the
Attorney=s
General=s lien
and levy on the bank account.  That same
day, he also filed a motion to suspend the rules in which he asked to file only
one copy of all documents because he was not allowed access to a copier in
prison.  After filing an unsuccessful
mandamus with the court of criminal appeals asking that it order the trial
court to rule on the application for writ of habeas corpus, appellant filed a
motion to amend the application with the trial court, asking that the court
consider the writ application as an AApplication
in Dispute of Obligor=s Child Support Arrearages and
The Attorney General Illegally Issued a Lien.@ 




On January 6, 2006, appellant filed a petition to
set hearing pursuant to section 157.323 of the family code in which he again
complained about the lien and levy on his aunt=s bank
account.[2]  He also asked that the trial court bench
warrant him back to Denton County so that he could testify regarding the
matter.  That same day, he filed an
application to proceed as an indigent, to which he attached a printout showing
the then current balance in his inmate trust account, and another motion to
suspend the rules regarding copies because, as an inmate, he could not access a
copier. 




On March 16, 2006, appellant sent a letter to the
trial court clerk asking if the clerk=s office
had Aendorsed
on the document the date of [r]eceipt[,] . . . [i]ssued a
[d]ocket [n]umber[,] . . .[and] notif[ied] all parties of the [r]eceipt of the
document.@[3]  He filed a similar letter with the same
request on April 26, 2006, in which he also requested that the trial court Aissue a
[s]ubmission date and [r]ule on said Petition in a [r]easonable [r]equired time
and/or the next Motion/Petition day of Court.@  Nothing in the record shows whether these
letters were presented to the trial court.
On May 23, 2006, appellant sent a letter to the
district clerk in which he acknowledged receiving a ANotice
of Non-Jury Dismissal Setting@ on May
11, 2006@[4] and
asked the clerk to file the accompanying APetitioner=s Motion
for Bench Warrant For Docket Call and/or Motion For Hearing By Conference Call.@  In that motion, appellant explained that he
is incarcerated and unable to personally appear before the court.  He asked the trial court to bench warrant him
so that he could personally appear at the court=s docket
call on June 21, 2006, or, alternatively, to allow him to testify via telephone
or to present evidence via affidavit.  At
the end of the motion is the handwritten notation, AMay 25,
2006 Denied,@ followed by the trial judge=s
signature.  There is no indication that
appellant was ever informed of the denial of his motion.




On June 22, 2006, the trial court signed an order
dismissing appellant=s case for want of prosecution
because A[o]n the
21st day of June, 2006, the . . . case [was] reached on the
Court=s
Dismissal Docket and no appearance [was] made.@  Appellant filed this appeal in which he
complains about the trial court=s
dismissing his case for failure to appear without providing him with a means to
appear.
Analysis
A trial court has authority to dismiss a case for
want of prosecution under either rule 165a of the Texas Rules of Civil
Procedure or the court=s inherent power to maintain and
control its docket.  Tex. R. Civ. P. 165a; see Villarreal,
994 S.W.2d at 630; Sellers v. Foster, 199 S.W.3d 385, 390 (Tex. App.CFort
Worth 2006, no pet.).  A trial court may
dismiss under rule 165a on the Afailure
of any party seeking affirmative relief to appear for any hearing or trial of
which the party had notice,@ or when
a case is Anot disposed of within time
standards promulgated by the Supreme Court.@  Tex.
R. Civ. P. 165a(1)‑(2); Villarreal, 994 S.W.2d at 630; Sellers,
199 S.W.3d at 390.  A trial court may
dismiss under its inherent power when a plaintiff fails to prosecute his or her
case with due diligence.  Villarreal,
994 S.W.2d at 630; Sellers, 199 S.W.3d at 390-91.




We review a trial court=s
dismissal for want of prosecution under an abuse of discretion standard.  Sellers, 199 S.W.3d at 390; Smith
v. McKee, 145 S.W.3d 299, 302 (Tex. App.CFort
Worth 2004, no pet.).
Although an inmate does not have an automatic
right to appear personally in court, he or she does not automatically lose the
right to access the courts by virtue of being incarcerated.  In re Z.L.T., 124 S.W.3d 163, 165
(Tex. 2003); In re D.D.J., 136 S.W.3d 305, 311 (Tex. App.CFort
Worth 2004, no pet.).  AThe
right of a prisoner to have access to the courts entails not so much his
personal presence as the opportunity to present evidence or contradict the
evidence of the opposing party.@  D.D.J., 136 S.W.3d at 314 (quoting Dodd
v. Dodd, 17 S.W.3d 714, 717 (Tex. App.CHouston
[1st Dist.] 2000, no pet.), disapproved o on other grounds by Z.L.T.,
124 S.W.3d at 166)).  Thus, if 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.  See, e.g., Sweed v. City of El Paso,
139 S.W.3d 450, 452 (Tex. App.CEl Paso
2004, no pet.); D.D.J., 136 S.W.3d at 314; Boulden v. Boulden,
133 S.W.3d 884, 886-87 (Tex. App.CDallas
2004, no pet.).







Here, the trial court=s order
states that the court dismissed appellant=s case
because he failed to appear at the June 21, 2006 hearing.  However, appellant was unable to appear
personally because he was incarcerated and because the trial court denied his
request for a bench warrant.  In
addition, appellant was unable to appear by alternative means, such as by telephone
or affidavit, because the trial court denied his motion to appear by such
alternative means.[5]  Thus, the trial court dismissed appellant=s case
for failure to appear without providing appellant any means to appear.[6]  This is fundamentally unfair and denied
appellant access to the courts.  See
Sweed, 139 S.W.3d at 454-55 (McClure, J., concurring) (A[I]t is
fundamentally unfair to order Sweed to appear at a mandatory dismissal hearing,
ignore his request to appear at the hearing either telephonically or by
videoconference technology, and then dismiss his case for the sole reason that
he failed to appear at the mandatory hearing.@); Boulden,
133 S.W.3d at 886-87.  Moreover, by
refusing to allow appellant to appear by alternative means, the trial court
denied appellant the opportunity to be heard before a dismissal for lack of
service or any other reason based on the court=s
inherent power or on appellant=s
failure to comply with the Denton County standards for timely disposition of
cases.  See Villarreal, 994 S.W.2d
at 630 (A[A]
party must be provided with notice and an opportunity to be heard before
a court may dismiss a case for want of prosecution under either Rule 165a or
its inherent authority.@) (emphasis added); Franklin
v. Sherman ISD, 53 S.W.3d 398, 401 (Tex. App.CDallas
2001, pet. denied) (holding that both notice and an oral hearing are necessary
to ensure dismissed claimant has received due process).  We sustain appellant=s sole
issue.
Conclusion
Having sustained appellant=s sole
issue, we reverse the trial court=s
judgment dismissing appellant=s case
for failure to appear and remand the case to the trial court for further
proceedings.
 
 
 
TERRIE
LIVINGSTON
JUSTICE
 
PANEL A:   LIVINGSTON,
HOLMAN, and GARDNER, JJ.
 
DELIVERED: June 21, 2007




[1]Appellant=s divorce and
accompanying child support issues were filed and disposed of in the trial court
in the 1980s.


[2]In a letter to the trial
court clerk accompanying this petition, appellant asked the trial court clerk
to send a copy to AChild Support Division
Special Collections Unit, Mr. Stephen F. Mckenna, P.O. Box 18010, San Antonio,
Texas 78218-0010.@ 


[3]Nothing in the record
shows that appellant served the document, or any of the other documents he
filed, on the Attorney General=s office or his ex-wife.


[4]This letter is not
included in the appellate record, and the trial court clerk has informed us
that at the time the letter was sent, the trial court did not file such
dismissal docket notice letters. 
However, appellant has attached a copy of the letter to his brief, which
we construe as a concession that appellant received notice of the trial court=s intent to dismiss.  See Villarreal v. San Antonio Truck &
Equip., 994 S.W.2d 628, 629-30 (Tex. 1999) (holding that trial court must
provide prior notice of its intent to dismiss and relying on concession in
appellees= brief that appellant and
his attorney appeared at docket call hearing even though appellate record did
not contain a reporter=s record from the docket
call hearing).


[5]The copy of the trial
court=s notice attached to
appellant=s brief is the same
notice sent to the appellant in Smith. 
145 S.W.3d at 303.  That notice
states that the trial court will not accept scheduling orders for purposes of
the dismissal docket hearing via mail.  Id.


[6]As the Texarkana Court of
Appeals noted in In re Marriage of Buster, A[s]eemingly, there was a
complete breakdown in communication between the trial court and [appellant],
and because of [appellant=s] status as an indigent
and an inmate, he could not reasonably remedy the situation.@ 115 S.W.3d 141, 145
(Tex. App.CTexarkana 2003, no pet.).


