Court of Appeals of Texas, Fourth District, San Antonio
the 381st Judicial District Court, Starr County, Texas Trial
Court No. DC-15-547 Honorable Jose Luis Garza, Judge
Sitting: Sandee Bryan Marion, Chief Justice Rebeca C.
Martinez, Justice Irene Rios, Justice
C. Martinez, Justice
an appeal from the trial court's dismissal of
appellant's suit for want of prosecution. In three issues
on appeal, appellant asserts the trial court erred in
dismissing her suit because she did not receive adequate
notice, the trial court erred by not reinstating her case,
and the trial court intentionally dismissed her case without
notice because the trial judge was biased. Because we
conclude the trial court did not provide appellant with
notice of its intent to dismiss her case, we reverse the
trial court's order of dismissal and remand the cause to
the trial court for further proceedings.
DISMISSAL FOR WANT OF PROSECUTION
first issue, appellant asserts the trial court erred by
dismissing her suit because she did not receive notice from
the district clerk that her case could be dismissed.
Appellant contends-and appellees do not dispute-she had no
past history of disregarding any court notifications of court
hearings because the notifications were mailed to her and she
did not provide an email address.
who was pro se at trial and is pro se on appeal, filed suit
against appellees on September 17,
2015. The clerk's record reveals that over the next year,
appellant filed motions to recuse the trial judge and a
motion for default judgment. Appellees also filed various
motions. Each time a hearing was scheduled or an order signed
by the trial court, the district clerk mailed notice to
appellant and emailed notice to appellees'
attorney. On December 14, 2015, the
district clerk issued a "Notice" stating a
"Status-Docket Control Conference/DWOP" was set for
January 13, 2016, and "Counsel's personal appearance
is required." The "Notice" contains
appellant's physical mailing address and an email address
for the attorney representing appellee Guadalupe Villarreal.
The attorney representing appellees Jose and Imelda Pena is
not listed as an addressee in the "Notice." The
clerk's record contains a copy of an envelope addressed
to appellant. The district clerk's case management system
print-out contains the following two notations regarding this
12/14/15 Status-Docket Control Conference/DWOP for Jan. 13,
2016 - Efiled on 12/14/2015 2:48 PM. . . . Comments: MAIL
COPY OF NOTICE TO PRO-SE [appellant].
12/16/15 Notice to Pro Se
trial court's docket sheet reveals the January 13, 2016
hearing was passed because the trial court was "Waiting
for Fifth Administration Office to Assign Someone to Case,
" presumably to hear appellant's motion to recuse.
Following the denial of appellant's first motion to
recuse, appellant and appellees filed other motions. On
August 30, 2016, the district clerk issued a
"Notice" stating an "Enter-Docket Control
Order/DWOP" was set for September 28, 2016, and
"Counsel's personal appearance is required."
The "Notice" contains appellant's physical
mailing address, the email address for Ms. Villarreal's
attorney, and the name only (no contact information) for the
Penas' attorney. The clerk's record does not contain
a copy of an envelope addressed to appellant. The district
clerk's case management system print-out contains the
following single notation regarding this "Notice":
8/30/2016 NOTICE for Wednesday, September 28, 2016 at 1:00
p.m. - Efiled on 08/30/2016 11:50 AM. . . . Comments: [blank]
trial court conducted a hearing on September 28, 2016, at
which only one of the appellees' attorneys
appeared. After noting appellant's
absence, the trial court announced it would dismiss the case
for want of prosecution. The trial court signed the order
dismissing appellant's case for want of prosecution on
October 3, 2016.
trial court's authority to dismiss for want of
prosecution stems from two sources: (1) Texas Rule of Civil
Procedure 165a, and (2) the court's inherent power.
Villarreal v. San Antonio Truck & Equip., 994
S.W.2d 628, 630 (Tex. 1999). 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, " or when a case is "not disposed of
within the time standards promulgated by the Supreme Court .
. . ." Tex.R.Civ.P. 165a(1), (2). In addition, the
common law vests the trial court with the inherent power to
dismiss independently of the rules of procedure when a
plaintiff fails to prosecute his or her case with due
diligence. Villarreal, 994 S.W.2d at 630.
a party must be provided with notice and an opportunity to be
heard before a court may dismiss a case for want of
prosecution under either Rule 165a or its inherent authority.
Id.; see also Tex. R. Civ. P. 165a(1). A
trial court's failure to provide adequate notice of its
intent to dismiss requires reversal because a party's due