Opinion filed January 25,2013




                                             In The



         eicUcntl] Court of Appeals
                                     No. 11-11-00013-CV



                              DARNELL SMITH, Appellant

                                                V.


                     ROBERT H. QUADA JR. ET AL., Appellees


                            On Appeal from the 12th District Court
                                   Walker County, Texas
                                 Trial Court Cause No. 24,114



                            MEMORANDUM                  OPINION

       Darnell Smith, a pro se inmate, appeals the dismissal of his lawsuit for want of
prosecution against several employees of the Texas Department of Criminal Justice. In two
issues, he contends that the trial court erred in (1) dismissing his lawsuit for want of prosecution
and (2) failing to grant his motion for the issuance of a bench warrant to secure his presence at
the dismissal docket hearing. We affirm.
                                           Background
       Appellant filed the underlying lawsuit on December 31, 2007, alleging that prison
officials had improperly confiscated his legal materials. Appellees filed their answer to the suit
on March 17, 2008. The clerk's record indicates that appellant filed several documents in the
case throughout 2008. However, no activity occurred in the case between December 3, 2008,
and April 15, 2009, when appellant advised the trial court clerk of an address change. Appellant
did not file any other documents in the cause until August 19, 2009, other than to advise the trial
court clerk of another address change on April 27, 2009. He filed a document entitled "Advisory
Regarding Prison Official's [sic] Contieud [sic] Withholding of Plaintiffs Legal Material" on
August 19, 2009. He additionally requested information about the trial court's docket calendar
that the court coordinator provided to him on August 17, 2009. He filed another "Advisory
Regarding Prison OfficiaP's [sic] Continued Witholding [sic] of Plaintiffs Property" on
September 11, 2009. Appellant did not file anything else in the case during the remainder of
2009. In January of 2010, he forwarded a request to the trial court clerk to file in another
pending action a document previously filed in the underlying suit. Nothing else occurred in the
case until August 20, 2010, when the trial court filed the following notice:
                NOTICE OF DISMISSAL FOR WANT OF PROSECUTION

               TAKE NOTICE that the pending cases on the attached list, in the 12th
        Judicial District Court of Walker County, Texas will be dismissed on the 28th day
        of October 2010 at 2:00 P.M., UNLESS THE PARTIES AND THEIR
       ATTORNEYS APPEAR IN PERSON AND SHOW GOOD CAUSE FOR
       THE CASE TO BE MAINTAINED ON THE DOCKET OF SAID COURT.
       FILING A MOTION TO RETAIN THE CASE ON THE COURT'S
       DOCKET WILL NOT BE SUFFICIENT TO RETAIN IT.

Appellant responded to the notice of dismissal by filing an "Application for Writ of Habeas
Corpus Ad Testificandum" on September 10, 2010.             The trial court did not rule on the
application. It subsequently dismissed the case on October 28, 2010, in a written order stating
that the case was dismissed for want of prosecution pursuant to Tex. R. Civ. P. 165a.
Afterwards, appellant did not file a motion to reinstate the case pursuant Rule 165a(3).
                                       Standard ofReview
       We review the trial court's dismissal for want of prosecution for a clear abuse of
discretion. See Franklin v. Sherman Indep. Sch. Dist, 53 S.W.3d 398, 401 (Tex. App.—Dallas
2001, pet. denied). A trial court abuses its discretion when it acts "arbitrarily or unreasonably,
without reference to guiding rules or principles." Riffv. Iliff, 339 S.W.3d 74, 78 (Tex. 2011).
                                             Analysis
       A trial court must provide a party with notice and an opportunity to be heard before the
trial court can dismiss a case for want of prosecution. Villarreal v. San Antonio Truck & Equip.,
994 S.W.2d 628, 630 (Tex. 1999). Appellant obviously received the notice because he filed his
application for a bench warrant in response to it. He complains in his second issue that the trial
court erred in not granting the request for the bench warrant.
        It is well established that litigants cannot be denied access to the courts simply because
they are inmates. In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003); see Hudson v. Palmer, 468
U.S. 517, 523 (1984). However, an inmate does not have an absolute right to appear in person in
every court proceeding. Z.L.T., 124 S.W.3d at 165. Instead, the inmate's right of access to the
courts must be weighed against the protection of our correctional system's integrity. Id. Texas
courts have identified a number of factors to be weighed against an inmate's right to appear in
person, including the cost and convenience of transporting him to the courtroom; the security
risk he presents to the court and public; the substantial nature of his claims; whether resolution
can be reasonably delayed until his release; whether the prisoner can and will offer admissible,
noncumulative testimony that cannot be effectively presented by deposition, telephone, or some
other means; whether his presence is important forjudging his demeanor and credibility; whether
the trial or hearing is to the court or a jury; and the probability of success on the merits. Id. at
165-66. The burden is on the inmate to establish his right to relief when seeking a bench
warrant, and if the inmate fails to present sufficient information to the trial court for it to evaluate
whether the inmate's participation in a hearing is warranted, the trial court has no independent
duty to evaluate the factors and does not abuse its discretion by denying the request. Id. at 166.
       In his application for a bench warrant, appellant advised the court that he is incarcerated,
that he "is a necessary, material and competent witness in this case," that he is the only plaintiff,
that his testimony is central to the facts at issue, that his availability to respond to live
questioning "will further the correct outcome of events," and that he has a substantial interest in
"presenting in person" his testimony concerning "good cause." However, he did not supply any
information with respect to the factors the court must consider in granting his request.
Specifically, appellant did not provide the trial court with any details of his "good cause" basis
for maintaining the case on the court docket.           Thus, appellant did not present sufficient
information to the trial court for it to evaluate whether his appearance was warranted.
Accordingly, the trial court did not abuse its discretion by denying the application for a bench
warrant. Appellant's second issue is overruled.
        A trial court's power to dismiss a case for want of prosecution stems from two sources:
(1) Rule 165a and (2) the trial court's inherent authority to manage its own docket. See
Villarreal, 994 S.W.2d at 630. We direct our attention to the grounds listed in Rule 165a
because the trial court's order expressly referenced the rule as the basis for the dismissal. Rule
165a(l) applies to situations when a party fails to appear for a hearing or a trial. Rule 165a(2)
provides for dismissal for want of prosecution when a case is not disposed of within the time
standards promulgated by the Texas Supreme Court. Rule 6.1(b) of the Texas Rules of Judicial
Administration provides that cases should be brought to trial or final disposition within eighteen
months from appearance" date for civil jury cases and within twelve months from appearance date
for civil nonjury cases. Tex. R. Jud. Admin. 6.1(b), reprinted in Tex. Gov't Code Ann., tit. 2,
subtit. F app. (West Supp. 2012).
        At least twenty-nine months elapsed in this case between the filing of appellees' answer
in March 2008 and the trial court's dismissal docket notice entered in August 2010.
Accordingly, dismissal under Rule 165a(2) was appropriate. Very little activity occurred in the
case in the last twenty months preceding the issuance of the dismissal docket notice. As noted
previously, appellant did not provide the trial court with a sufficient basis for granting his
application for a bench warrant. Furthermore, he did not request or propose any alternative
means of attendance at the hearing such as by telephone or deposition.              Under these
circumstances, the trial court did not abuse its discretion in dismissing the case for want of
prosecution. Appellant's first issue is overruled.
                                        This Court's Ruling
        The judgment of the trial court is affirmed.


                                                              PER CURIAM

January 25, 2013
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.
