                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH


                             NO. 2-07-407-CV


SHERRICK D. RINGER                                              APPELLANT

                                      V.

MYRON E. KIMBALL                                                 APPELLEES
AND LAYNE HARWELL
                                  ------------

        FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY

                                  ------------

                                 OPINION

                                  ------------

     Appellant Sherrick D. Ringer asserts in this appeal that the trial court

abused its discretion in dismissing his lawsuit against Appellees Myron E.

Kimball and Layne Harwell for want of prosecution. We affirm.

                                Background

     Ringer is incarcerated. On September 13, 2006, he sued appellees, his

former attorneys, for breach of contract and breach of fiduciary duty. Almost
a year later, on August 7, 2007, the trial court informed the parties by letter

that the case was set for trial on November 5, 2007, and that a pretrial hearing

would be conducted on October 25, 2007. The letter stated that “[a]ll parties

will be expected to appear at the pretrial or the case will be dismissed for want

of prosecution.”

      On October 18, 2007, more than two months later, and shortly before

the pretrial hearing, Ringer filed a “Motion for Bench Warrant or in the

Alternative Motion for Hearing by Video Conference Call.” The motion contains

the following assertions and requests for relief:

      [Ringer is] presently incarcerated . . . in Amarillo, Texas [and] is
      unable to personally appear before the Court and give testimony in
      this case and respectfully request[s] the Court to issue a Warrant
      from the Bench ordering the Sheriff[s] of Potter and Tarrant
      Counties, to transport me to this Court for the “Pretrial hearing set
      by this Court to be had October 25, 2007 at 9:00 a.m. and Trial to
      be had on November 5, 2007.”

      In the alternative, I ask the Court to hold a hearing by video
      conference with me.

There is no further argument in the motion, and the motion does not request

any other relief should the trial court determine that Ringer is not entitled to

appear in person or by video conference.

      The record contains no express ruling by the trial court on the motion.

It is apparent from the record, however, that the trial court implicitly overruled


                                        2
Ringer’s bench warrant motion and alternative request for hearing by video

conference, as the trial court dismissed the case for want of prosecution on

October 25, the date of the pretrial hearing, after giving notice that a party’s

failure to appear at the hearing would result in dismissal. 1

                               Standard of Review

      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.2 Under rule 165a(1), a trial court may

dismiss a case for want of prosecution on the failure of a party seeking

affirmative relief to appear for a hearing or trial if the party had notice that

dismissal could result from the party’s failure to appear.3 A trial court may

dismiss under its inherent power when a plaintiff fails to prosecute his or her

case with due diligence. 4




      1
        … In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003) (“By proceeding to
trial without issuing the bench warrant, it is clear that the trial court implicitly
denied [the inmate’s] request [for a bench warrant].”).
      2
     … Tex. R. Civ. P. 165a; Villarreal v. San Antonio Truck & Equip., 994
S.W.2d 628, 630 (Tex. 1999); Sellers v. Foster, 199 S.W.3d 385, 390 (Tex.
App.—Fort Worth 2006, no pet.).
      3
          … Tex. R. Civ. P. 165a(1).
      4
          … Villarreal, 994 S.W.2d at 630; Sellers, 199 S.W.3d at 390–91.

                                         3
      We review a trial court’s dismissal for want of prosecution and a trial

court’s denial of a bench warrant motion for an abuse of discretion.5            To

determine whether a trial court abused its discretion, we must decide whether

the trial court acted without reference to any guiding rules or principles; in other

words, we must decide whether the act was arbitrary or unreasonable.6 Merely

because a trial court may decide a matter within its discretion differently than

an appellate court would in similar circumstances does not demonstrate an

abuse of discretion.7

                                     Analysis

A.    Bench Warrant

      It is well established that litigants cannot be denied access to the courts

simply because they are inmates.8        However, an inmate does not have an

absolute right to appear in person in every court proceeding. 9 The inmate’s




      5
     … Z.L.T., 124 S.W.3d at 165; Sellers, 199 S.W.3d at 390; Smith v.
McKee, 145 S.W.3d 299, 302 (Tex. App.—Fort Worth 2004, no pet.).
      6
       … Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42
(Tex. 1985), cert. denied, 476 U.S. 1159 (1986).
      7
          … Id.
      8
      … See Hudson v. Palmer, 468 U.S. 517, 523, 104 S. Ct. 3194, 3198
(1984).
      9
          … Z.L.T., 124 S.W.3d at 165.

                                         4
right of access to the courts must be weighed against the protection of our

correctional system’s integrity.10

      In In re Z.L.T., the Supreme Court of Texas identified a variety of factors

that trial courts should consider when deciding whether to grant an inmate’s

request for a bench warrant, including:

      •        the cost and inconvenience of transporting the prisoner to the
               courtroom;

      •        the security risk the prisoner presents to the court and public;

      •        whether the prisoner’s claims are substantial;

      •        whether the matter’s resolution can reasonably be delayed until the
               prisoner’s release;

      •        whether the prisoner can and will offer admissible, noncumulative
               testimony that cannot be effectively presented by deposition,
               telephone, or some other means;

      •        whether the prisoner’s presence is important in judging his
               demeanor and credibility;

      •        whether the trial is to the court or a jury; and

      •        the prisoner’s probability of success on the merits.11

The Z.L.T. court held that a litigant’s status as an inmate does not alter the

litigant’s burden to identify with sufficient specificity the grounds for the ruling



      10
           … Id.
      11
           … Id. at 165–66 (citing cases).

                                          5
sought.12 Accordingly, the trial court has no responsibility to independently

inquire into the applicability of the factors listed above. 13 Rather, the burden

is on the inmate to establish his right to relief, and if the inmate fails to present

sufficient information to the trial court for the trial court to evaluate the bench

warrant request under the factors listed above, the trial court does not abuse

its discretion in denying the request. 14

      Ringer’s bench warrant motion contains no information by which the trial

court could assess the necessity of his appearance at the pretrial hearing.

Indeed, the motion does not even reference the factors identified in Z.L.T. As

in Z.L.T., the only information in the motion pertinent to Ringer’s request for a

bench warrant is that he is incarcerated in Amarillo, over 300 miles from

Tarrant County.15      Because Ringer failed to meet his burden to prove his

entitlement to a bench warrant, we cannot say the trial court abused its

discretion in implicitly denying Ringer’s request for a bench warrant.16




      12
           … Id. at 166; see Tex. R. Civ. P. 21; Tex. R. App. P. 33.1(a)(1)(A).
      13
           … Z.L.T., 124 S.W.3d at 166.
      14
           … Id.
      15
       … See id. (noting that only relevant information in bench warrant motion
was that prisoner was incarcerated “more than 200 miles from the trial court”).
      16
           … See id.

                                            6
B.    Alternative Means – Video Conference

      Ringer also asked for the alternative relief of appearing at the pretrial

hearing by video conference. We held in In re D.D.J. that a trial court abuses

its discretion when it “fail[s] to consider [an inmate’s] request to participate at

trial by alternative means.” 17 This decision is grounded in “[t]he right of a

prisoner to have access to the courts[,] [which] entails not so much his personal

presence as the opportunity to present evidence or contradict the evidence of

the opposing party.” 18 We concluded that, while the trial court did not abuse

its discretion in denying the bench warrant request, it “should have considered

[but did not consider] permitting [the inmate] to proceed by other effective

means, such as the telephone conference he had expressly requested in his

motion.” 19

      Here, unlike the inmate’s alternative request in D.D.J., the trial court

implicitly considered and denied Ringer’s request to appear by alternative




      17
        … In re D.D.J., 136 S.W.3d 305, 314 (Tex. App.—Fort Worth 2004,
no pet.).
      18
        … Id. (quoting Dodd v. Dodd, 17 S.W.3d 714, 717 (Tex.
App.—Houston [1st Dist.] 2000, no pet.), disapproved in part on other grounds,
Z.L.T., 124 S.W.3d at 166)).
      19
      … Id. at 314; see also In re R.C.R., 230 S.W.3d 423, 426–27 (Tex.
App.—Fort Worth 2007, no pet.).

                                        7
means.20      Accordingly, we turn to the question of whether the trial court

abused its discretion in denying the video conference request.

      In determining whether the trial court abused its discretion in denying

Ringer’s video conference request, we apply the factors listed in Z.L.T. for

bench warrant requests.21      We see no meaningful distinction between an

inmate’s request to appear in person and an inmate’s request to appear by

video conference, particularly when, as here, there is no evidence that the

inmate has access to video conferencing capabilities within the prison facility

in which he is incarcerated. In such cases, an inmate’s request to appear by

a video conference that would require transporting the inmate off prison

grounds implicates the same Z.L.T. factors regarding the protection of our

correctional system’s integrity as an inmate’s request for a bench warrant.

Accordingly, an inmate who seeks to appear by video conference has the

burden to demonstrate under the factors listed in Z.L.T. why he should be




      20
        … See D.D.J., 136 S.W.3d at 313 (“[T]he trial court twice expressly
denied [the inmate’s] motion for a bench warrant. In both instances, the court
did not reference or expressly rule on his request to participate by alternative
means.”).
      21
           … See Z.L.T., 124 S.W.3d at 165.

                                       8
permitted to appear by video conference, and the trial court has no independent

duty to evaluate such a request. 22

      Ringer’s motion is completely silent as to why he should be entitled to

appear by video conference. Ringer failed both in the trial court and in this

court to explain “what his testimony would establish, why his testimony would

be helpful to his case, or how he was harmed by not being allowed to ‘give

testimony’ either by personally appearing in court or by [video conference].” 23

Nor did Ringer request that the trial court permit him to appear by some other

alternative means such as through a telephone conference, by deposition, or by




      22
         … See id. at 166; see also Graves v. Atkins, No. 01-04-00423-CV,
2006 WL 3751612, at *3 (Tex. App.—Houston [1st Dist.] Dec. 21, 2006, no
pet.) (“To be entitled to appear in person or through video communications
technology, . . . the burden rests squarely on the prisoner-inmate to request
access to the court through these alternate means and to demonstrate why a
trial court should authorize them.”).
      23
       … McCarroll v. Tex. Dep’t of Public Safety, 86 S.W.3d 376, 379–80
(Tex. App.—Fort Worth 2002, no pet.); see also In re B.R.G., 48 S.W.3d 812,
820 (Tex. App.—El Paso 2001, no pet.) (noting that “[inmate] has not
demonstrated why [alternative] means would not have been effective, or how
he has been prevented from presenting his case to the trial court”).

                                       9
affidavit.24   We, therefore, conclude that the trial court did not abuse its

discretion in implicitly denying Ringer’s motion to appear by video conference. 25

                                   Conclusion

      The trial court did not abuse its discretion in implicitly denying Ringer’s

motion for a bench warrant or, alternatively, to appear by video conference.

Accordingly, the trial court’s order dismissing for want of prosecution is

affirmed.




                                                  JOHN CAYCE
                                                  CHIEF JUSTICE


PANEL: CAYCE, C.J.; HOLMAN and GARDNER, JJ.

DELIVERED: December 4, 2008




      24
       … B.R.G., 48 S.W.3d at 820; see also Graves, 2006 WL 3751612, at
*3 (noting that inmate failed to move for reinstatement after dismissal of
inmate’s case for failure to appear).
      25
        … We express no opinion on the inmate’s burden or the trial court’s
obligations when an inmate seeks to appear by other alternative means, such
as by telephone conference, affidavit, or deposition.

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