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Parker v. Parker

Court of Appeals of Texas, Fourteenth District

March 7, 2017

ERIC PARKER, Appellant
v.
BRIGETTE PARKER, Appellee

         On Appeal from the 310th District Court Harris County, Texas Trial Court Cause No. 2015-34264

          Panel consists of Justices Boyce, Busby, and Wise.

          MEMORANDUM OPINION

          William J. Boyce Justice

         Appellant Eric Parker challenges the trial court's dismissal of his divorce suit. The trial court dismissed the suit for want of prosecution when appellant, an inmate, failed to announce ready for trial. Appellant contends that the trial court effectively denied him access to the legal system. Because the trial court permitted appellant to appear by telephone but he failed to do so, we affirm.

         Background

         Appellant filed for divorce from his wife, Brigette Parker, [1] in June 2015. Appellant was incarcerated and proceeding pro se during the pendency of both the underlying suit and this appeal.

         Along with his original petition for divorce, appellant filed a "Motion for Bench Warrant or in the Alternative, Motion to Proceed by Conference Call, Affidavit, or any other Effective Means." In his motion, appellant requested a bench warrant allowing him to personally appear for trial. In the event the trial court denied his request for a bench warrant, appellant requested that the trial court "allow him to proceed by conference call, affidavit, or other effective means[.]"

         The trial court set the case for trial or dismissal on December 11, 2015, and provided notice to appellant. The trial court determined that appellant's personal appearance was not necessary and issued an order in October 2015 denying appellant's request for a bench warrant but allowing appellant to participate in the proceedings by telephonic conference.

         The trial court dismissed appellant's case for want of prosecution on December 11, 2015. The order of dismissal states that the case was dismissed because there was no announcement by attorneys or parties and because there had been no service of process on Brigette.[2]

          Appellant appeals the dismissal.

         Analysis

         Trial courts have inherent power to dismiss cases for want of prosecution, and express authority to do so under Texas Rule of Civil Procedure 165a. See Tex. R. Civ. P. 165a; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 850 (Tex. 2004). A trial court may dismiss under Rule 165a on "failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice." Tex.R.Civ.P. 165a. Likewise, the trial court has inherent power to dismiss independently of the rules of procedure when a plaintiff fails to prosecute his case with due diligence. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999). We review a dismissal for want of prosecution for an abuse of discretion. In re Marriage of Bolton, 256 S.W.3d 832, 833 (Tex. App.-Dallas 2008, no pet.).

         An inmate may not be denied access to the courts, but also has no absolute right to appear in person in every court proceeding. In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003); Risley v. Alvarez, No. 14-10-00015-CV, 2011 WL 397948, at *6 (Tex. App.-Houston [14th Dist.] Feb. 8, 2011, pet. denied) (mem. op.). If the trial court determines that the inmate's personal appearance is not warranted, then the trial court should allow the inmate to proceed by affidavit, deposition, telephone, or other effective means. In re R.C.R., 230 S.W.3d 423, 426 (Tex. App.-Fort Worth 2007, no pet.); Boulden v. Boulden, 133 S.W.3d 884, 886-87 (Tex. App.-Dallas 2004, no pet.).

         Appellant does not challenge the trial court's denial of his request for a bench warrant.[3] Instead, appellant contends that access by teleconference was insufficient and violated his due process rights because appellant does not have independent access to a telephone and is "wholly depend[ent] on the trial court's coordinator and [the ...


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