Appeal from the 326th District Court Taylor County, Texas
Trial Court Cause No. 15-11402N
consists of: Wright, C.J., Willson, J., and Bailey, J.
M. BAILEY JUSTICE.
an appeal from the trial court's order dismissing Juan
Manuel Albarado's petition for divorce for lack of
prosecution. In a single issue, Albarado contends that the
trial court erred in dismissing his case for lack of
prosecution. We affirm.
is an inmate in the Texas Department of Criminal Justice. On
June 2, 2015, Albarado filed a pro se petition for divorce
from Amanda M. Jimenez. In his original petition, Albarado
indicated that he did not need to obtain service of process
upon Jimenez because he thought she would answer or execute a
waiver of service. On June 8, 2015, Albarado requested
Jimenez to be served with citation by certified mail. The
record indicates that the trial court clerk mailed the
citation by certified mail on June 18, 2015, to Jimenez at
the address provided by Albarado in his petition. The
citation was returned to the clerk's office on July 12,
2015, with the notation "return to sender" because
it was unclaimed and could not be forwarded.
August 4, 2016, the trial court sent Albarado a dismissal
notice. On August 25, 2016, Albarado filed a motion for an
order to remove the case from the dismissal docket asserting
that he "made every possible attempt to ensure proper
notice and service" on Jimenez. He attached an affidavit
in which he claimed that he complied with all service
requirements and made multiple attempts to contact Jimenez,
to no avail. On August 30, 2016, the trial court entered an
order dismissing Albarado's case for lack of prosecution.
Albarado filed his notice of appeal on September 21, 2016.
review the trial court's dismissal for want of
prosecution under an abuse of discretion standard. See
MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997);
Ringer v. Kimball, 274 S.W.3d 865, 867 (Tex.
App.-Fort Worth 2008, no pet.). A trial court abuses its
discretion when it acts "arbitrarily or unreasonably,
without reference to guiding rules or principles."
Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011).
court must provide a party with notice and an opportunity to
be heard before it may dismiss a case for lack of
prosecution. Villarreal v. San Antonio Truck &
Equip., 994 S.W.2d 628, 630 (Tex. 1999); Reese v.
Reese, 256 S.W.3d 898, 899 (Tex. App.-Dallas 2008, no
pet.). Here, the trial court sent a notice of dismissal to
Albarado, which he obviously received because he filed a
motion to remove his case from the dismissal docket. A trial
court's power to dismiss a case for want of prosecution
stems from two sources: (1) Rule 165a of the Texas Rules of
Civil Procedure and (2) the trial court's inherent
authority to manage its own docket. See Tex. R. Civ.
P. 165a; Villarreal, 994 S.W.2d at 630. A trial
court may dismiss a case under Rule 165a when a party or its
counsel fails to appear at a hearing or trial or when a case
is "not disposed of within time standards
promulgated" by the Texas Supreme Court. Tex.R.Civ.P.
165a(1), (2). Additionally, the trial court has the inherent
power to dismiss independently of the rules of procedure when
a plaintiff fails to prosecute its case with due diligence.
Villarreal, 994 S.W.2d at 630; Oliphant Fin.,
LLC v. Galaviz, 299 S.W.3d 829, 839 (Tex. App.-Dallas
2009, no pet.).
a pro se litigant is held to the same standards as a licensed
attorney as far as knowledge of the rules of practice and
procedure are concerned, the level of reasonable diligence
for prison inmates is somewhat lower than that for litigants
who are free and represented by counsel." In re
Marriage of Buster, 115 S.W.3d 141, 144 (Tex.
App.-Texarkana 2003, no pet.) (citation omitted). However,
"[l]ack of diligence need not amount to abandonment for
a case to be properly dismissed." See WMC Mortg.
Corp. v. Starkey, 200 S.W.3d 749, 752 (Tex. App.-Dallas
2006, pet. denied). The trial court may consider the entire
history of the case, including the amount of activity in the
case, the length of time the case was on file, requests for a
trial date, and the existence of reasonable excuses for
delay. See Oliphant, 299 S.W.3d at 839; Bilnoski
v. Pizza Inn, Inc., 858 S.W.2d 55, 58 (Tex. App.-Houston
[14th Dist.] 1993, no writ).
relies on Buster to support his position that the
trial court abused its discretion in dismissing his case for
lack of prosecution. 115 S.W.3d at 144. In that case, a pro
se inmate filed for divorce and asked for the right to appear
personally or proceed through alternate means, asked for the
trial court to appoint him an attorney so he could complete
service, asked for permission to proceed in forma
pauperis, and repeatedly asked for assistance in
adjudicating his divorce. Id. at 145. None of the
motions or requests were acted on by the court. Id.
at 143. Instead, the court dismissed the case for want of
prosecution. Id. The court of appeals determined
that "Buster did everything he could reasonably do to
diligently prosecute his case." Id. at 144-45.
case is distinguishable from Buster. Here, the trial
court was responsive to Albarado's requests. Albarado
claims on appeal that he made every reasonable attempt to
successfully obtain service on Jimenez, including mailing a
copy of the suit to Jimenez by first class mail and certified
mail, attempting to obtain service by publication, and filing
numerous motions and letters with the trial court. However,
the appellate record does not support his claims.
Specifically, the record only shows that Albarado attempted
to serve Jimenez on one occasion by certified mail and that
he filed a motion asking the trial court to grant the divorce
even though Jimenez had not been served. The record does not
show that Albarado attempted to obtain service by
least fourteen months elapsed in this case between the filing
of Albarado's original petition for divorce and the trial
court's notice of dismissal. The record shows that (1) in
his original petition for divorce, Albarado did not request
that the trial court attempt to serve Jimenez; (2) after
filing his petition, Albarado requested that the clerk of the
trial court attempt to obtain service on Jimenez by certified
mail, which the clerk attempted without success; (3) he filed
a motion requesting that the trial court enter an order
granting the divorce; and (4) he filed a motion for an order
to remove his case from the dismissal docket after receiving
a notice of dismissal. The only other source of support for
Albarado's claims is ...