                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-17-00119-CV
                           ____________________

                VALENTIN AYALA-GUTIERREZ, Appellant

                                        V.

                    CHRIS STRICKLAND, et al., Appellees
_______________________________________________________            ______________

                    On Appeal from the 284th District Court
                         Montgomery County, Texas
                       Trial Cause No. 16-03-03401-CV
________________________________________________________            _____________

                          MEMORANDUM OPINION

      In March 2017, the trial court dismissed Valentin Ayala-Gutierrez’s lawsuit

after he failed to appear at a hearing to establish why his case should not be

dismissed. See Tex. R. Civ. P. 165a(1) (“A case may be dismissed for want of

prosecution on failure of any party seeking affirmative relief to appear for any

hearing or trial of which the party had notice.”). In the brief that Ayala-Gutierrez

filed in his appeal, he contends the order dismissing the case should be reversed

because the record shows that he was prosecuting his case. Because the record shows

                                         1
that Ayala-Gutierrez never requested the District Clerk to have citations prepared

for the defendants that he named in his suit, and because the record fails to show that

any defendants were ever served with Ayala-Gutierrez’s suit, we conclude the trial

court did not err by dismissing the suit. For these reasons, the trial court’s judgment

is affirmed.

                                     Background

      In March 2016, Ayala-Gutierrez filed his original petition against eight

defendants, claiming they were liable to him under the Texas Tort Claims Act.1

Ayala-Gutierrez’s suit alleges that the eight individuals committed various acts that

injured him over a two-year period that began in October 2012.

      The petition that Ayala-Gutierrez filed in state court shows that he previously

sued several defendants, all employed by the Geo Group, Inc., in federal court. In

his federal-court suit, Ayala-Gutierrez alleged that around October 2012, four

defendants acted under color of state law and violated his rights under the Civil

Rights Act, 42 U.S.C. § 1983. See Ayala-Gutierrez v. Jackson, No. H-15-0387, 2016

WL 524225, at *1 (S.D. Tex. Feb. 9, 2016); affirmed sub nom. Ayala-Gutierrez v.

Doe, No. 16-20164, 697 F. App’x. 285 (5th Cir. 2017) (per curiam). It appears that


      1
       See generally Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001-.109 (West
2011 and Supp. 2018).

                                          2
of these, three are named in the suit he filed in state court. In February 2016, the

federal district judge handling the federal suit dismissed Ayala-Gutierrez’s federal

suit without prejudice to his right to pursue his claims in state court. See Jackson,

2016 WL 524225, at *2. The federal district judge’s order reflects that the Ayala-

Gutierrez’s federal suit was dismissed after the court found that his petition failed to

state a valid claim. See id. at *1-2.

      In March 2016, Ayala-Gutierrez sued eight defendants in the suit that is the

subject of this appeal. His state petition includes several defendants that he did not

name in the suit he filed in federal court. He also expanded on his claims in federal

court, alleging that the eight defendants engaged in conduct that he claimed was

actionable on dates beyond the dates relevant to the suit he filed in federal court.

      Ayala-Gutierrez’s state-court petition alleges various addresses where seven

of the eight defendants that he named could be served. Yet, the record that is before

us does not show that Ayala-Gutierrez ever requested that the District Clerk prepare

citations for any of the defendants named in his suit. See Tex. R. Civ. P. 99(a)

(requiring the clerk, “when requested,” to issue citation and to deliver citations to

whoever the party has requested so the defendants can be served with the suit).

      Ayala-Gutierrez then filed motions to proceed without paying costs and to

appoint counsel. These motions contain no language requesting that the clerk prepare

                                           3
citations. The record in the trial court also fails to show that he ever served these

motions on any of the defendants that he named in his suit. Nor does the record show

that Ayala-Gutierrez made any effort to have his motions heard.

      In early March 2017, the trial court notified Ayala-Gutierrez that the trial court

intended to dismiss the case for want of prosecution. In mid-March 2017, Ayala-

Gutierrez filed a motion to retain, alleging that his suit has merit and that he was

never notified about any rulings on his pending motions. He also filed a motion

requesting that the trial court bench warrant him to appear at the hearing on the

court’s motion to dismiss. In late March 2017, after Ayala-Gutierrez did not appear

at the hearing, his case was dismissed. In its order, the trial court noted that “[a]fter

being duly notified to appear and show why said cause should not be dismissed from

the docket of this Court, no appearance was made by any party to said suit.” After

that, Ayala-Gutierrez filed a notice of appeal. See Tex. R. App. P. 25.1(a).

                          Dismissal for Want of Prosecution

      In issue one, Ayala-Gutierrez complains the trial court committed error by

dismissing his case for want of prosecution. Trial courts may dismiss cases after

giving the plaintiffs who filed them notice and an opportunity to be heard, or by

using the inherent authority that trial courts possess to control their dockets. See Tex.

R. Civ. P. 165a; Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630

                                           4
(Tex. 1999). On appeal, a ruling dismissing a case for want of prosecution is

reviewed under an abuse-of-discretion standard. See MacGregor v. Rich, 941

S.W.2d 74, 75 (Tex. 1997).

      “We look to the issues and the arguments and authorities in appellant’s brief

to determine the grounds presented for appellate review and will consider all issues

fairly raised.” Dallas Cty. v. Crestview Corners Car Wash, 370 S.W.3d 25, 57 (Tex.

App.—Dallas 2012, pet. denied). In his brief, Ayala-Gutierrez argues that the record

demonstrates he was prosecuting his case because he filed various motions on which

the trial court never ruled. Additionally, he argues that dismissing his case was

improper because his claims have a valid basis in law and fact.

      In this case, neither Ayala-Gutierrez’s petition, nor his motions, were served

on the defendants. Because the record shows that Ayala-Gutierrez failed to take the

steps required to serve the defendants with his suit, the record supports the trial

court’s finding that Ayala-Gutierrez failed to prosecute his suit. See Tex. R. Civ. P.

99 (Issuance and Form of Citation), see also De La Cerda v. Jaramillo, No. 01-17-

00595-CV, 2018 WL 1189065, at *6 (Tex. App.—Houston [1st Dist.] Mar. 8, 2018,

no pet.) (mem. op.) (explaining that “the question of the plaintiff’s diligence in

effecting service is determined by examining the time it took to secure citation,




                                          5
service, or both, and the type of effort or lack of effort the plaintiff expended in

procuring service”).

       Ayala-Gutierrez also argues that the trial court should not have dismissed his

state-court suit because it has merit. But the trial court dismissed Ayala-Gutierrez’s

case because he failed to prosecute it in a timely manner, not because the court found

that his claims were frivolous. See Tex. Civ. Prac. & Rem. Code Ann. § 13.001(a)(2)

(West 2017) (providing that a case can be dismissed if a court finds the action to be

frivolous). We conclude that the trial court did not abuse its discretion by dismissing

Ayala-Gutierrez’s case.

                             Failure to Rule on Motions

       In issue two, Ayala-Gutierrez complains that the trial court failed to rule on

several of the motions that he filed before dismissing his case. For example, he

argues that he was entitled to discover the names and various information about John

and Jane Doe defendants from three of the defendants that he identified by name in

the suit.

       Nonetheless, the record shows that Ayala-Gutierrez failed to take the steps

necessary to obtain discovery from the three defendants that he claims he wanted to

answer his discovery. Under the Rules of Civil Procedure, nonparties to a suit are

entitled either to be served with notice that discovery is being sought from them or

                                          6
to be served with a subpoena before a court can require them to answer discovery in

a suit. See Tex. R. Civ. P. 205, 205.1, 205.2. The record does not show that any

subpoenas issued in the suit. The record also fails fails to show that Ayala-Gutierrez

served anyone with his motion seeking discovery. Based on the record that is before

us in the appeal, the trial court could not have issued an order compelling anyone to

answer his discovery.

         Ayala-Gutierrez also complains the trial court failed to rule on his motion to

amend his complaint. According to Ayala-Gutierrez, he wanted to amend his petition

so that it complies with the requirements that apply to suits involving inmates. See

Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001-.014 (West 2017). But Ayala-

Gutierrez did not need leave to amend his pleadings since he filed his request

approximately nine months before the trial court dismissed his case. See Tex. R. Civ.

P. 63.

         Next, Ayala-Gutierrez complains that the trial court never ruled on his motion

to appoint counsel. See generally Tex. Gov’t Code Ann. § 24.016 (West 2004). He

was not, however, entitled to appointed counsel. Under Texas law, “[t]he mere fact

that an indigent inmate brings a cause of action against an employee of the prison in

which the inmate is incarcerated does not constitute exceptional circumstances such




                                            7
that it warrants appointed counsel.” Gibson v. Tolbert, 102 S.W.3d 710, 713 (Tex.

2003).

      Additionally, Ayala-Gutierrez suggests that we should stay his case until the

Fifth Circuit rules on his appeal from the federal district court’s ruling in the suit he

filed in federal court. But that case is over, as the Fifth Circuit affirmed the federal

district court’s ruling in August 2017. See Doe, 697 F. App’x. at 285. We conclude

that no reason exists to stay our ruling in this appeal.

      Finally, we note that Ayala-Gutierrez has not complained that the trial court

never ruled on his request asking for a bench warrant so that he could attend the

hearing the trial court conducted in his case. Nonetheless, nothing in the record

shows that he ever took the steps required to have the trial court hear his motion. A

party filing a motion “has the burden to set a hearing on his motion or make a direct

request to a trial judge for a hearing. This is because motions are usually handled by

the court clerk and are placed—physically or electronically—in the case file,

meaning that a busy trial judge will, in all likelihood, not even be aware that the

motion has been filed.” Enriquez v. Livingston, 400 S.W.3d 610, 619 (Tex. App.—

Austin 2013, pet. denied).

      In conclusion, the record shows that Ayala-Gutierrez never asked the trial

court to set hearings on his motions. Thus, he failed to preserve his complaints that

                                           8
the trial court never ruled on motions for our review. See Tex. R. App. P. 33.1; see

also Morris v. Cozby, No. 11-16-00169-CV, 2018 WL 2749804, at *2 (Tex. App.—

Eastland June 7, 2018, no pet.) (mem. op.) (noting that the failure to request a hearing

or otherwise obtain a ruling on a motion waived the complaint for appellate review).

The record further shows that Ayala-Gutierrez never asked the District Clerk to

prepare citations. As a result, none of the defendants were ever served.2 For all of

these reasons, we hold that the trial court did not abuse its discretion by dismissing

Ayala-Gutierrez’s suit. We overrule Ayala-Gutierrez’s issues and affirm the trial

court’s judgment.

      AFFIRMED.


                                               ________________________________
                                                       HOLLIS HORTON
                                                            Justice

Submitted on March 13, 2018
Opinion Delivered November 15, 2018

Before McKeithen, C.J., Kreger and Horton, JJ.


      2
        We note that Chris Strickland and the Joe Corley Detention Facility, who are
two of the defendants that Ayala-Gutierrez named in his suit, filed a joint brief in
response to his appeal. Nothing in the record shows that they ever appeared while
the case was pending in the court below. Based on the allegations that are in Ayala-
Gutierrez’s petition, it appears that Strickland is the warden of the Joe Corley
Detention Facility and that the Facility is the location where some of the conduct
that Ayala-Gutierrez complains about occurred.
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