                                         NO. 07-02-0314-CV

                                   IN THE COURT OF APPEALS

                           FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                                PANEL C

                                     NOVEMBER 26, 2003
                               ______________________________

                                         CHARLES L. CARR,

                                                                          Appellant

                                                    v.

                       TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

                                                          Appellee
                            _________________________________

                FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

                            NO. 86,950-E; HON. ABE LOPEZ, JUDGE
                             ________________________________

                                   Memorandum Opinion
                             ________________________________

Before JOHNSON, CJ., and QUINN and REAVIS, JJ.

      Appellant Charles L. Carr (Carr), an indigent inmate in the Texas Department of

Criminal Justice (the Department), appeals from an order dismissing his suit for want of

prosecution. Through two issues, he contends that the trial court abused its discretion in

1) dismissing the cause, 2) granting the Department’s motion to quash his deposition

notices, and 3) failing to rule on other motions filed by him.1 We affirm the dismissal.

      1
          We note that the Department did not favor us with an appellate brief responding to that of Carr.
                      Issue One -- Dismissal for Want of Prosecution

       Standard of Review

       Whether the trial court erred in dismissing the suit depends upon whether it abused

its discretion. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997). It abuses its discretion

when it acts without reference to any guiding rules or principles or if the action is arbitrary

or unreasonable. Koslow’s v. Mackie, 796 S.W.2d 700, 704 (Tex. 1990); Nawas v. R & S

Vending, 920 S.W.2d 734, 737 (Tex. App.--Houston [1st Dist.] 1996, no writ).

Furthermore, if, as here, the order of dismissal specifies no reason for the dismissal other

than for want of prosecution, the dismissal must be affirmed if any proper ground supports

the decision. Shook v. Gilmore & Tatge Mfg. Co., 951 S.W.2d 294, 296 (Tex. App.--Waco

1997, pet. denied). Thus, the appellant has the burden to address each possible reason

for dismissal and explain why none support the dismissal. See id. (stating that one

seeking reinstatement bears the burden to show that the standard for reinstatement has

been met for all possible grounds).

       Next, a trial court may dismiss a suit for want of prosecution 1) because a party

seeking affirmative relief failed to appear for any hearing or trial of which the party had

notice, 2) because the case was not disposed of within the time standards promulgated

by the Supreme Court in its Administrative Rules, or 3) through the exercise of its inherent

power due to the lack of diligence. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d

628, 630 (Tex. 1999); see TEX . R. CIV . P. 165a(1) & (2) (discussing the authority of the trial

court to dismiss as provided by rule of procedure). That the plaintiff may be acting pro se

matters not for those representing themselves have the duty to prosecute their claims with


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due diligence just as do all other litigants. Coleman v. Lynaugh, 934 S.W.2d 837, 838

(Tex. App.--Houston [1st Dist.] 1996, no writ). Finally, the central issue to be addressed

is whether the plaintiff exercised due diligence. MacGregor v. Rich, 941 S.W.2d at 75.

       Application of Standard

       In applying the foregoing authority to the circumstances at bar, we first note that the

Rules of Judicial Administration direct that civil cases wherein a jury has been requested

should be disposed of within 18 months of the appearance date. TEX . R. JUD . ADMIN . 6b,

reprinted in . TEX . GOV ’T CODE ANN ., tit. 2, subtit. F app. (Vernon 1998). Here, the record

shows that Carr initiated suit in May of 1999. The Department appeared, by filing a motion

to transfer the cause and an answer, on October 18, 1999. The cause was eventually

dismissed on July 2, 2002. The application of authority and simple arithmetic principles

to the aforementioned dates reveals several things. First, the cause had been pending

(without disposition) on the trial court’s docket for much more than 18 months after the

Department appeared. Second, because it was not disposed of within that period,

Supreme Court authority entitled the trial court to dismiss it.

       Carr argues, however, that he diligently pursued his claim by requesting discovery,

amending his pleadings, seeking mediation, and filing various motions such as for

sanctions, to join parties, and to compel discovery. Yet, review of the record illustrates

that, aside from asking the trial court to send the cause to mediation shortly before it was

dismissed, the last of his efforts to prepare the cause for disposition culminated in or

around September of 2001, or some nine months before the cause was dismissed for want

of prosecution. In attempting to explain why the cause lay dormant for that period, he does


                                              3
not say that he was prepared for and merely awaited trial. Indeed, the record does not

reflect that he even requested that his dispute be set for trial. Instead, he contends that

the delay was caused by the trial court’s refusal to act upon various motions such as to join

parties, to compel discovery, and for sanctions. Yet, and assuming arguendo that they

were of any substance, Carr acknowledged that he could have pursued their resolution

through mandamus and opted not to utilize that avenue.2 In other words, he opted to do

nothing for nine months despite his duty to act diligently.3

        Similarly absent from his explanation for the delay is any suggestion that discovery

has been completed or that he has been unable to complete discovery through the means

afforded by the rules of civil procedure. Rather, he wanted the trial court to refer the case

to mediation since he was “willing to consider a reasonable settlement out of court” and

should that not come about “allow discovery to proceed.”                           What discovery he

contemplated, why he did not complete it before, how long it would take him to complete



        2
          Regarding the motion to join, nowhere does he 1) allege in it that he was somehow prevented from
joining the person mentioned therein or 2) explain why he needed the court’s intercession. Indeed, it appears
that he could have simply amended his live pleading to add the individual. Yet, he did not. And, aside from
serving a notice of his intent to take depositions by written interrogatory, nothing appears of record
establishing that he served anyone with any other formal request for discovery which complied with the Rules
of Civil Procedure. So, it is questionable whether he was entitled to sanctions or an order to compel due to
the Department’s supposed failure to produce documents and respond to interrogatories. And, as to the
deposition, he thought he was entitled to sanctions and an order to compel (although the trial court had
previously quashed the notice) because he expected the Department or others to arrange and pay for them.
It was his obligation to arrange his own discovery, not that of his opponent or the court. As to his “Motion
to Invoke Rule,” he apparently sought an order deeming answers to admissions; yet, in that very same
motion he quotes the portion of the Rules of Civil Procedure declaring that admissions are considered
admitted if responses thereto are untimely and without necessity of court intervention. Finally, nowhere does
appellant explain how the resolution of these motions or any others somehow conditioned his duty to
diligently prepare or otherwise prevented him from preparing for trial. Nor does he allege that he had no
other avenues available to him down which he could journey to fulfill his obligation.
        3
         We further note the absence of any allegation suggesting that he was unable to act (due to his
prisoner status or otherwise) during the interim.

                                                     4
it, and what he purported to obtain through it all went unaddressed. Nor does he specify

what “discovery issues” must be resolved before the cause can “proceed.” The only ones

reflected in the record pertain to his motion for sanctions and to compel discovery, but for

the reasons mentioned in our footnote 3, we perceive them to be untenable as well as little

obstacle to the preparation of his claims.

       Nor are we told why his “twelve requests for the docket” exemplify diligence.

Indeed, the record does not illustrate that any came within the nine-month period before

dismissal. Nor does it evince why the trial court clerk’s purported refusal to respond to

them prevented him from conducting discovery, preparing for trial, or requesting a trial

setting.

       In sum, Carr had the obligation to do that reasonably necessary to secure the final

disposition of his claim. The record contains evidence upon which the trial court could

have relied in determining that he did not fulfill his duty. And, because the suit had not

been disposed of within 18 months from the date the Department made its appearance,

legal authority provided the trial court basis to act. Accordingly, because its decision to

dismiss was not without basis in law or fact, the trial court did not abuse its discretion.

       Having disposed of issue one as we did renders moot issue two. Accordingly, we

affirm the order dismissing for want of prosecution.



                                                  Brian Quinn
                                                    Justice




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