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Brown v. Preston

Court of Appeals of Texas, First District

September 21, 2017

CEDRIC D. BROWN, Appellant
v.
SHIRLEY J. PRESTON, Appellee

          On Appeal from the 234th District Court Harris County, Texas Trial Court Case No. 2014-62252

          Panel consists of Justices Higley, Massengale, and Lloyd.

          MEMORANDUM OPINION

          Laura Carter Higley Justice

         Cedric Brown, a prison inmate acting pro se, appeals the trial court's dismissal for want of prosecution of his suit against Shirley J. Preston.[1] 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.

         Background

         In October 2014, Brown filed suit against his aunt, Shirley J. Preston.[2] 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."

         Preston 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.

         On 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.

         On 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 coordinator]."

         On May 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 dismissed."[3]

         Brown 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.

         Dismissal for Failure to Appear at Trial

         In his 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.

         On 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 ...


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