
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-08-00080-CV


In re Michael Wayne Bohannan





ORIGINAL PROCEEDING FROM TRAVIS COUNTY



M E M O R A N D U M   O P I N I O N


In 1995, Michael Wayne Bohannan sued the Texas Board of Criminal Justice and the
Texas Department of Criminal Justice in the 345th Judicial District Court of Travis County, cause
number 95-00141.  In his suit, Bohannan contended that the defendants had unlawfully instituted a
policy by which good time credit earned by Bohannan prior to his release on mandatory supervision
was not restored following the revocation of supervision and his return to prison.  The district court
dismissed Bohannan's suit as frivolous.  See Tex. Civ. Prac. & Rem. Code Ann. § 13.001
(West 2002).
Bohannan appealed the dismissal to this Court.  See Bohannan v. Texas Bd. of
Criminal Justice, 942 S.W.2d 113 (Tex. App.--Austin 1997, writ denied).  We agreed with the
district court that several of Bohannan's claims were frivolous, but we concluded that Bohannan's
claim that the Board exceeded its statutory authority and divested him of a vested property right was
not.  Id. at 117-20.  Therefore, we reversed the dismissal of that portion of Bohannan's cause,
severed it, and remanded it to the district court for further proceedings.  Id. at 120.  We affirmed the
dismissal in all other regards.  Id.
In this mandamus action, Bohannan complains that the district court did not afford
him the "further proceedings" to which he was entitled.  In his mandamus petition, he describes what
happened following remand:

Bohannan, on remand, again sought discovery from Defendants and supplemented
his motion to enforce that discovery.  Bohannan, and Defendants, filed Motions for
Summary Judgment.  Bohannan repeatedly wrote letters to the court's coordinator
requesting hearings on his outstanding motions and addressing his need for a bench
warrant to appear at said hearings.  The trial court allegedly set no fewer than four
hearing dates with notice made.  Defendants moved for a continuance for one hearing
only.  Bohannan never moved for a continuance yet no hearing was ever held. 
Bohannan, repeatedly, for the next ten years, notified the court of his address changes
and of his desire to have the pleadings heard.


In November 2007, Bohannan was notified by the district clerk that his cause had
been dismissed for want of prosecution in a blanket order signed on September 5, 2006.  Bohannan
states that he was not given notice that his cause had been moved to the dismissal docket and that
he was not notified of the dismissal until November 2007.
Because the time within which the district court has plenary power has expired, the
judgment of dismissal cannot be set aside except by bill of review for sufficient cause.  See Tex. R.
Civ. P. 329b(f); also see Middleton v. Murff, 689 S.W.2d 212, 213 (Tex. 1985).  A bill of review is
an independent equitable action brought by a party to a previous suit who seeks to set aside a
judgment that is no longer subject to a motion for new trial or appealable.  Wembley Inv.
Co. Herrera, 11 S.W.3d 924, 926-27 (Tex. 1999).  A bill of review is the proper method by which
a party may attack the dismissal of its cause for want of prosecution without proper notice. 
General Elec. Co. v. Falcon Ridge Apts., 811 S.W.2d 942, 944 (Tex. 1991).
A bill of review is a new action that is commenced by an original petition filed in the
trial court that rendered the judgment in question.  Urso v. Lyon Fin, Serv., Inc., 93 S.W.3d 276, 280
(Tex. App.--Houston [14th Dist.] 2002, no pet.).  The person bringing the action is the plaintiff, and
proper service of citation must be made on the other original party or parties, who must defend the
bill of review proceeding.  See Transworld Fin. Serv. v. Briscoe, 722 S.W.2d 407, 408 (Tex. 1987). 
The petition must be verified and, if the petition is based on lack of proper service, the petition need
allege only the facts showing the failure of service.  See Caldwell v. Barnes, 154 S.W.3d 93, 97
(Tex. 2004).  When a bill of review plaintiff claims lack of service, the trial court should: 
(1) dispense with any pretrial inquiry into a meritorious defense; (2) hold a trial at which the bill of
review plaintiff assumes the burden of proving that he was not served with process, thereby
conclusively establishing a lack of fault or negligence on his part; and (3) conditioned on an
affirmative finding that the bill of review plaintiff was not served, allow the parties to revert to their
original status with the burden on the original plaintiff to prove his or her case.  Id. at 97-98.
The petition for writ of mandamus is denied without prejudice to Bohannan's right
to bring a bill of review action to set aside the dismissal of his original lawsuit.

				__________________________________________
				Diane Henson, Justice
Before Justices Patterson, Puryear and Henson 
Filed:   February 28, 2008
