CEDRIC D. BROWN, Appellant
SHIRLEY J. PRESTON, Appellee
Appeal from the 234th District Court Harris County, Texas
Trial Court Case No. 2014-62252
consists of Justices Higley, Massengale, and Lloyd.
Carter Higley Justice
Brown, a prison inmate acting pro se, appeals the trial
court's dismissal for want of prosecution of his suit
against Shirley J. Preston. Raising two issues, Brown contends
that the trial court abused its discretion when it dismissed
his suit and when it did not grant his motion for new trial.
Because Brown does not show that the trial court abused its
discretion, we affirm.
October 2014, Brown filed suit against his aunt, Shirley J.
Preston. In his petition, Brown stated that he was
incarcerated in an Angleton, Texas prison. Brown alleged that
Preston had prevented him from receiving his share of his
deceased grandfather's estate. He sought a judgment
awarding him "his distributive share."
answered the suit, denying Brown's allegations. The trial
court signed a docket control order, setting trial for the
two-week period beginning October 15, 2015. The case was not
reached for trial in October, and trial was reset for the
period beginning March 7, 2016. However, the case did not go
to trial in March. The trial court ordered the case reset for
the two-week period beginning May 2, 2016.
April 15, 2016, Brown filed "Plaintiff's
Announcement [of] Ready for Trial and Request for Bench
Warrant." Brown informed the trial court that he was
"ready to proceed to trial." He stated that,
"[b]ecause of his incarceration, " he was
"unable to personally appear before the court and give
testimony." Brown requested the trial court to issue a
bench warrant to permit him to attend trial "scheduled
to commence on May 2, 2016, so that [he] may give
testimony." He asserted that his "case depends in
large part on his own testimony." Brown did not request
to appear at trial by alternate means, such as by telephone,
videoconference, or affidavit. The trial court did not rule
on Brown's request for a bench warrant.
April 25, 2016, the trial court sent notice to the parties,
informing them that the case was "assigned to trial on
Wednesday, May 11, 2016, at 1:00 p.m." The trial court
warned that "failure to appear for this trial date will
result in a default or dismissal of this cause." The
notice provided the name and telephone number of the court
coordinator, stating that "[s]hould you have any
questions concerning this notice please contact [the court
16, 2016, the trial court signed an order of dismissal. The
order states, "On May 11, 2016 at 1:00 p.m., came to be
heard the above-referenced cause and the Court called the
matter to Trial. Defendant [Preston] appeared through counsel
of record[.] Plaintiff [Brown] did not appear. IT IS
THEREFORE ORDERED that this case is hereby
then filed "Plaintiff's Motion for New Trial and/or
Request for Reconsideration." In the motion, Brown
acknowledged that the case was dismissed because he failed to
appear at trial. He asserted, however, "that failure to
appear was no fault of his own." He pointed out that,
before trial, he had requested the trial court to "issue
a warrant from the bench ordering [the sheriff's
department] and/or [the prison system] to transport him to
[the trial court] for the scheduled docket call and the trial
that was scheduled." He pointed out that, because he is
an inmate in the Texas prison system, he could not
"attend any type of judicial proceeding held by this
Court unless he is brought there by an agency [such as the
sheriff's department] after the issuance of a bench
warrant." At the end of the motion, Brown requested the
trial court to reinstate the case on the court's docket.
The trial court did not rule on the motion, resulting in it
being overruled by operation of law.
for Failure to Appear at Trial
first issue, Brown contends that the trial court abused its
discretion when it dismissed his suit. "A trial
court's authority to dismiss for want of prosecution
derives from the express provisions of Rule 165a of the Rules
of Civil Procedure and from the trial court's inherent
power." Graves v. Atkins, No. 01-04-00423-CV,
2006 WL 3751612, at *1 (Tex. App.-Houston [1st Dist.] Dec.
21, 2006, no pet.) (mem. op.). Subsection (1) of Rule 165a,
subtitled "Failure to Appear, " authorizes a trial
court to dismiss a pending cause for want of prosecution when
a "party seeking affirmative relief" does not
"to appear for any hearing or trial of which the party
had notice." Tex.R.Civ.P. 165a(1). Here, Brown filed a
petition seeking the affirmative relief from the trial court.
And, in his brief, Brown acknowledges that the trial court
sent him notice on April 25, 2016, indicating that trial was
set for May 11, 2016. The notice also informed him that the
case would be dismissed if he did not appear.
appeal, Brown asserts that the trial court abused its
discretion in dismissing his case because he had requested a
bench warrant to appear at trial, and the trial court did not
granted the request. Courts may not deny a prison inmate
access to the courts based solely on their status as an
inmate; however, an inmate does not have an absolute right to
appear in person. In re Z.L.T., 124 S.W.3d 163, 165
(Tex. 2003). When determining whether an inmate has a right
to be present at trial, Texas courts weigh the prisoner's
right of access against protecting the integrity of the
correctional system, based on several factors. Id.
These factors include (1) the cost and convenience of
transporting the inmate to the courtroom; (2) the security
risk the inmate poses to the court and the public; (3)
whether the inmate's claims are substantial; (4) whether
the matter's resolution can reasonably be delayed until
the inmate's release; (5) whether the inmate can and will
offer admissible, noncumulative testimony that cannot be
effectively presented by deposition, telephone or some other
means; (6) whether the inmate's presence is important in
judging his demeanor and ...