                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-07-114-CV


R. W. ROGERS, SR.                                                APPELLANT

                                              V.

ARLETHA GARLAND FRANKLIN                                           APPELLEE

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

           FROM THE 348TH DISTRICT COURT OF TARRANT COUNTY

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

                          MEMORANDUM OPINION 1

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

      Appellant R.W. Rogers, Sr. complains that the trial court erred by

dismissing his case against Appellee Arletha Franklin for want of prosecution.

We will affirm.




      1
          … See T EX. R. A PP. P. 47.4.
                    I. B ACKGROUND AND P ROCEDURAL H ISTORY

      Rogers, an inmate serving a forty-year sentence, filed this suit and appeal

pro se. In the underlying suit, filed on June 20, 1997, Rogers alleged that

Franklin, a longtime family friend, had illegally obtained proceeds from four life

insurance policies after the death of Rogers’s mother. In his original petition,

Rogers requested that the trial court serve Franklin by U.S. mail. The trial court

attempted service, but someone other than Franklin signed the return receipt,

rendering service invalid. On October 7, 1997, before the return receipt with

the incorrect signature was filed, the trial court notified Rogers by letter of its

intent to set the case on the dismissal docket. In the letter, the trial court judge

told Rogers that the case had been on file in excess of ninety days “without

service being effected.”

      The trial court sent a second notice of intent to dismiss, stating that the

defendant had not filed an answer and that Rogers had sixty days to take all

appropriate actions to secure a default judgment or the case would be set for

dismissal for want of prosecution. Rogers then sent a letter to the trial court

and requested that it enter a default judgment. The trial court did not respond,

prompting several letters from Rogers demanding to know why the trial court

had not ruled on his request. In total, the trial court sent Rogers eight notices

of intent to dismiss the case, and Rogers filed five motions to maintain the case

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on the docket.     On October 5, 2006, the trial court granted Rogers’s fifth

motion to maintain the case on the docket and sent a letter to Rogers informing

him that he had never completed service on Franklin because someone other

than Franklin had signed the return receipt. The trial court judge also informed

Rogers that the court would not maintain the case on the docket again if Rogers

did not pursue his case with due diligence, including securing good service on

Franklin by December 7, 2006.

      On October 20, 2006, Rogers responded to the trial court’s notice by

filing a motion to re-issue service of process, in which he asked the court to

serve Franklin by U.S. mail. On that same day, Rogers sent a letter to the trial

court requesting that it serve Franklin by U.S. mail or for it to “exercise its

power to call upon the Tarrant [County] Deputy Marshal’s [Department] to

serve the Defendant[,] and if need be[,] the U.S. [Deputy Marshal’s Department]

pursuant to [Federal Rule of Civil Procedure 4-(b)ii-iii] . . . .” On October 25,

2006, the trial court re-attempted to serve Franklin by U.S. certified mail. The

citation returned unclaimed on December 6, 2006, and pursuant to the last

letter of intent to dismiss, the trial court dismissed the case for want of

prosecution on December 7, 2006, nine and one-half years after Rogers filed

his original petition.




                                       3
                    II. D ISMISSAL FOR W ANT OF P ROSECUTION

      In his first two issues, Rogers argues that the trial court erred by

dismissing his case for want of prosecution because (1) it failed to inform him

that Franklin had not been properly served and (2) it did not re-issue service by

hand delivery in the manner in which Rogers had requested.

      We review a trial court’s order dismissing a case for want of prosecution

for a clear abuse of discretion. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex.

1997); Smith v. McKee, 145 S.W.3d 299, 302 (Tex. App.—Fort Worth 2004,

no pet.).   A trial court abuses its discretion when it acts arbitrarily or

unreasonably, or without reference to guiding rules and principles. McKee, 145

S.W.3d at 302–03.

      A trial court may dismiss a case for want of prosecution under rule 165a

of the Texas Rules of Civil Procedure or under its inherent power. See T EX. R.

C IV. P. 165a; Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 850 (Tex.

2004); Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex.

1999). A trial court may dismiss a case under rule 165a if a party seeking

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

notice or when a case is not disposed of within the time standards promulgated

by the supreme court. T EX. R. C IV. P. 165a(1)–(2). In addition, the common

law vests the trial court with the inherent power to dismiss independently of

                                        4
the rules of procedure when a plaintiff fails to prosecute his or her case with

due diligence. Villarreal, 994 S.W.2d at 630.         To determine whether due

diligence exists, the trial court may consider the entire history of the case,

including the length of time the case was on file, the extent of activity in the

case, whether a trial setting was requested, and the existence of reasonable

excuses for delay. Polk v. Sw. Crossing Homeowners Ass’n, 165 S.W.3d 89,

97 (Tex. App.—Houston [14th Dist.] 2005, pet. denied).

      In all but the first two notices of intent to dismiss, the trial court informed

Rogers that it intended to dismiss the case pursuant to both rule 165a and its

inherent power. Likewise, the trial court stated in its order dismissing the case

that it was acting based on its express authority in rule 165a and its inherent

power. The trial court specifically stated in the final order that it found that

Rogers had failed to take action as requested by the court and prosecute the

case with due diligence, thus implicating its inherent power.            Moreover,

Rogers’s complaints are directed at the trial court’s dismissal based on due

diligence as it pertains to incomplete service of process. Thus, we will review

the record to determine whether the trial court abused its discretion by

dismissing the case under its inherent power.




                                         5
      A.    Notice of Incomplete Service of Process

      Rogers first complains that the trial court erred by dismissing the case

because it failed to inform him for nine years that Franklin had not been

properly served. The record belies any assertion that he was wholly unaware

that service had not been completed because the trial court sent a letter to

Rogers on October 7, 1997, stating that service had not been “effected.”

Rogers acknowledged that he had received the trial court’s letter stating that

service had not been completed in a letter he sent to the trial court on

November 14, 1997. In that letter, Rogers asked the trial court to see that

service was completed but gave no instruction on how to carry out this request.

      The record shows that when the trial court sent the letter to Rogers on

October 7, 1997, the return receipt had not been filed with the clerk evidencing

an improper signature—the error that precluded complete service.             Thus,

despite having notice that service had not been “effected,” Rogers asserts that

he was unaware of the exact reason why service was incomplete. From his

communications with the trial court, it appears that Rogers thought that the

trial court had never issued citation at all. The return receipt with the incorrect

signature was on file since October 14, 1997, and would have answered any

question as to why service was incomplete. There is no evidence on the record

that shows that Rogers ever requested a copy of the return receipt, but we

                                        6
acknowledge that Rogers requested that the trial court inform him of what was

wrong with his suit, whether there was anything that was missing or needed

to be supplied, and whether citation was delivered. He specifically asked what

date citation was delivered, and if it was not delivered, why it was not

delivered. The trial court failed to respond to any of these inquiries until it sent

Rogers a letter on October 5, 2006, and told him that someone other than

Franklin had signed the return receipt. We agree with Rogers that the record

shows a general lack of communication on the part of the trial court regarding

these matters, but because the trial court eventually re-attempted service on

Franklin before it dismissed the case, among other reasons discussed below, we

cannot say that this deficient communication rendered the dismissal an abuse

of discretion.

      B.    Delivery of Citation

      Rogers also complains that the trial court erred by dismissing his case

because it failed to act on his motion to re-issue service of process by not hand

delivering the citation to Franklin. Rule 99 of the Texas Rules of Civil Procedure

governs issuance and form of citation, stating that it is the clerk’s duty, when

requested, to issue a citation and deliver the citation as directed by the

requesting party. T EX. R. C IV. P. 99(a). The clerk does not complete his duty

under the rule until he delivers the citations as directed. Boyattia v. Hinojosa,

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18 S.W.3d 729, 733–34 (Tex. App.—Dallas 2000, pet. denied). A party may

ordinarily rely on the clerk to perform his duty within a reasonable time. Id. at

734. But when a party learns, or by the exercise of diligence should have

learned, that the clerk has failed to fulfill his duty under rule 99, it is incumbent

upon the party to ensure that the job is done. Id.

      Rogers requested in his motion to re-issue that the trial court re-issue

citation to Franklin by U.S. mail. He then requested by letter that the trial court

re-issue citation by U.S. mail or “in light [of] the prior problems,” for the trial

court to order a U.S. marshal or deputy marshal to deliver citation under Federal

Rule of Civil Procedure 4. See F ED. R. C IV. P. 4(c)(3). Rogers maintained that

he was entitled to such action by the trial court because of his indigent status.

See id. (“At the plaintiff’s request, the court may order that service be made

by a United States marshal or deputy marshal or by a person specially

appointed by the court. The court must so order if the plaintiff is authorized to

proceed in forma pauperis under 28 U.S.C. § 1915 . . . .” (emphasis added)).

Rogers’s assertions are misplaced. First, Rogers mistakenly requested action

by a state district court under a Federal Rule of Civil Procedure.         Second,

although Rogers maintained that he was indigent, he never filed an affidavit or




                                         8
a valid substitute with the trial court to that effect.2 Third, Rogers was not

clear on which method the trial court was to use in serving Franklin; he

requested that the trial court mail the citation or have a marshal deliver it. He

also stated in one paragraph of the letter to the court that he was enclosing an

envelope and stamps to send citation to Franklin and then in the next paragraph

of the document requested that a marshal deliver citation. For all the above

reasons, the trial court properly responded to the motion to re-issue by

attempting service by U.S. certified mail within a reasonable time and dismissed

the case for want of prosecution once the return receipt came back unclaimed.

      Although Rogers’s complaint centers mainly on the motion to re-issue, we

note that over the nine and one-half years that the case was on the trial court’s

docket, Rogers requested four times, not including the original petition or


      2
        … Even though Rogers incorrectly relied on a Federal Rule of Civil
Procedure, he was likewise required under a similar Texas Rule of Civil
Procedure to file an affidavit of indigency to demand that the trial court send
citation to Franklin. See T EX. R. C IV. P. 145(a) (“Upon the filing of the affidavit
[of indigency], the clerk must docket the action, issue citation and provide such
other customary services as are provided any party.” (emphasis added)); Aguilar
v. Stone, 901 S.W.2d 955, 955 (Tex. App.—Houston [1st Dist.] 1995, orig.
proceeding) (stating that a pro se plaintiff who files an affidavit of indigency
under rule 145 is entitled to the issuance of citation). Alternatively, because
he was an inmate, Rogers could have filed an unsworn declaration of indigency
in lieu of an affidavit of indigency, but he failed to do so. See T EX. C IV. P RAC.
& R EM. C ODE A NN. §§ 132.001–.003 (Vernon Supp. 2007); Thomas v. Pankey,
837 S.W.2d 826, 830 (Tex. App.—Tyler 1992, no writ). Rogers has, however,
filed a pauper’s affidavit with this court to proceed as an indigent on appeal.

                                         9
motion to re-issue, to have the trial court serve Franklin. However, none of

these requests informed the trial court of the manner in which the clerk was to

serve Franklin.    See Allen v. Rushing, 129 S.W.3d 226, 231 (Tex.

App.— Texarkana 2004, no pet.) (holding in part that the trial court did not

abuse its discretion by dismissing a pro se inmate’s case for want of

prosecution when he requested that the court send citation but failed to specify

a manner of delivery of citation); see also Cordova v. Hodge, No. 13-06-00640-

CV, 2007 WL 4112018, at *4 (Tex. App.—Corpus Christi Nov. 20, 2007, no

pet.) (mem. op.) (not designated for publication) (same).

      Two times, Rogers requested that the trial court serve Franklin pursuant

to various Federal Rules of Civil Procedure, some of which list ways to serve

a defendant; however, Rogers never specified a particular method. Additionally,

Rogers asked that the trial court send Franklin, by U.S. mail, a copy of the

motions and letters that contained his requests for issuance of service, but he

never specifically addressed the delivery method for issuance of service. Thus,

Rogers failed to give the clerk any direction regarding the method and manner

of delivery as required under rule 99. See T EX. R. C IV. P. 99, 103 (who may

serve), 106 (method of service); Allen, 129 S.W.3d at 231.        In any event,

Rogers was not harmed by the trial court’s failure to send citation pursuant to




                                      10
these general requests because the trial court eventually re-attempted service

on Franklin before it dismissed the case.3

      C.    Due Diligence

      Rogers’s case remained on the trial court’s docket for nearly a decade.

During these nine and one-half years, Rogers never secured service of process

on Franklin. And although, at times, Rogers actively tried to pursue the case

by requesting a default judgment, filing discovery motions, writing letters

regarding the status of his case, and submitting proposed pretrial orders, he

also remained silent for months, and sometimes years, at a time. For instance,

on July 16, 1998, Rogers sent a letter to the trial court and requested that it

explain why his default judgment had not been granted but failed to take any

further action until he filed a motion to maintain the case on the docket

eighteen months later on January 31, 2000. Again, Rogers sent a letter to the

trial court on March 2, 2001 but failed to take any further action for thirteen

months, when he filed a motion to maintain the case on the docket on April 18,

2002. The longest delay occurred when Rogers filed a motion to maintain the




      3
        … We also note that Rogers stated in a motion to maintain the case on
the docket filed on April 18, 2002, that he would file a writ of mandamus if the
trial court did not complete service on Franklin, but he failed to take any such
action.


                                      11
case on the docket on May 21, 2003, and remained silent for over three years

until he filed another motion to maintain the case on the docket on September

28, 2006. None of Rogers’s responses listed above were self-initiated but were

instead prompted by the trial court’s notices of intent to dismiss the case.

Further, Rogers has provided no explanations for these delays, and we find

none on the record.

      We acknowledge the challenges that Rogers faced as a pro se plaintiff in

prison, but as a pro se plaintiff in a civil case, he had the burden of prosecuting

his case with diligence the same as any licensed attorney. Allen, 129 S.W.3d

at 231. We also note that Rogers requested several times for the trial court to

appoint an attorney to help him pursue his case with diligence.            Rogers

repeatedly attempted to cast this case as a civil rights action and alleged that

Franklin “violated his [c]onstitutional right to [d]ue process and [e]qual

[p]rotection,” but he never showed the trial court that this was an “exceptional”

civil case, in which the “public and private interests at stake [were] such that

the administration of justice [would have been] best served by appointing a

lawyer.” See Travelers Indemnity Co. v. Mayfield, 923 S.W.2d 590, 594 (Tex.

1996); Coleman v. Lynaugh, 934 S.W.2d 837, 839 (Tex. App.—Houston [1st

Dist.] 1996, no writ). Rogers pointed to his alleged mental incapacity as a

bipolar patient taking medication as an impairment on his ability to pursue his

                                        12
case with diligence, but there is nothing in the record that demonstrates the

severity of Rogers’s disorder or its effect on his ability to communicate with the

trial court.

      Even though we have noted a general lack of communication by the trial

court, in reviewing the entire record, we cannot say that the trial court abused

its discretion by dismissing the case for want of prosecution when it attempted

on behalf of Rogers to complete service of process twice, granted five motions

to maintain the case on the docket, and kept the case on the docket for nine

and one-half years in light of year-long voids in activity and incomplete service

of process. For the above reasons, we overrule Rogers’s first two issues.

                             III. R ELIEF FROM J UDGMENT

      In his third issue, Rogers argues that the trial court erred by refusing to

rule on his “relief from judgment” filed on December 27, 2006. In this motion,

Rogers asked the trial court to grant him relief from the order dismissing the

case and to attempt to secure service of process for a third time. However, in

order for the trial court to take such action, Rogers had to file a verified motion

to reinstate the case. See T EX. R. C IV. P. 165a. The relief from judgment filed

with the trial court was not verified,4 and therefore, cannot be construed as a


      4
       … As an inmate in prison, Rogers could have also filed unsworn
declarations in lieu of a verified motion to reinstate. See T EX. C IV. P RAC. & R EM.

                                         13
motion to reinstate. Cf. City of McAllen v. Ramirez, 875 S.W.2d 702, 705

(Tex. App.—Corpus Christi 1994, no writ) (“The requirement of a verified

motion to reinstate is meaningless if the same general relief may be requested

by filing an unverified motion for new trial.”). We accordingly overrule Rogers’s

third issue.

                                IV. C ONCLUSION

      Having overruled all of Rogers’s issues, we affirm the trial court’s

judgment.




                                            PER CURIAM

PANEL F: HOLMAN, GARDNER, and WALKER, JJ.

DELIVERED: April 24, 2008




C ODE A NN. §§ 132.001–.003 (Vernon Supp. 2007). However, the language at
the end of the relief from judgment—“all of the aforesaid is true and
correct”—does not meet the requirements of section 132.002 because it does
not state that the declarations were made “under penalty of perjury.” See id.
§ 132.002 (“An unsworn declaration made under this chapter must be: (1) in
writing; and (2) subscribed by the person making the declaration as true under
penalty of perjury.”); Bahm v. State, 219 S.W.3d 391, 394 (Tex. Crim. App.
2007) (stating that “[t]he only phrase that the Legislature actually mandates
should be included in such declarations is “under penalty of perjury”); Mitchell
v. Houston Hous. & Urban Dev., No. 14-00-00142-CV, 2000 WL 1201698, at
*2 (Tex. App.—Houston [14th Dist.] Aug. 24, 2000, pet. denied) (not
designated for publication) (holding that the appellant failed to substantially
comply with the requirements for an unsworn declaration because he failed to
state that his declarations in his motion to reinstate were made “under penalty
of perjury”).

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