In Re the Marriage of Buster

115 S.W.3d 141, 2003 Tex. App. LEXIS 6692, 2003 WL 21788932
CourtCourt of Appeals of Texas
DecidedAugust 5, 2003
Docket06-02-00178-CV
StatusPublished
Cited by41 cases

This text of 115 S.W.3d 141 (In Re the Marriage of Buster) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re the Marriage of Buster, 115 S.W.3d 141, 2003 Tex. App. LEXIS 6692, 2003 WL 21788932 (Tex. Ct. App. 2003).

Opinions

OPINION

Opinion by

Chief Justice WILLIAM J. CORNELIUS

(Retired).

Joe Lee Buster, an inmate of the Texas Department of Corrections, acting pro se throughout these proceedings, filed suit in the 202nd Judicial District Court of Bowie County for a divorce from his wife, Mollie Mae Allison. Buster was unable to secure service of process on Allison or secure a waiver of service from her because he could not ascertain her whereabouts. Because he could not cite her by publication or appear in the proceeding personally, his divorce petition remained on the trial court’s docket for approximately sixteen months until the trial court dismissed it for want of prosecution.

Buster appeals from the judgment of dismissal, contending that, even though he was incarcerated during all the relevant times and could not attend to his case personally, he made repeated and diligent efforts to secure citation by publication,1 produce the necessary testimony by alter[143]*143native means, and secure an adjudication of his case. He thus argues that the trial court abused its discretion by dismissing his case despite his diligence in attempting to bring the case to trial. We agree for the following reasons.

Buster filed his petition for divorce on June 11, 2001. In his petition, he alleged that he was incarcerated in the Eastham Unit, Texas Department of Criminal Justice-Institutional Division; that he was a resident of Bowie County, Texas, when the petition was filed; that Allison’s whereabouts were unknown and requested that the clerk issue citation if her location could be ascertained; that he and Allison were married on September 1, 1994, and ceased to live together as man and wife on or about May 17,1995; that the marriage had become insupportable because of discord and conflicts that destroyed the legitimate ends of the marriage; that the parties had no children and none was expected; there was no need for a division of property because Buster relinquished all right and title to any and all property, separate and community, acquired by either of the parties before or during the marriage; that Allison’s maiden name be restored to her; and that the court issue citation to Allison.

On the same date the petition was filed, the court entered the standard protective order entered by the courts of Bowie County in all divorce actions. Also on the same day, Buster filed an affidavit of testimony setting out verified facts supporting the allegations of the petition and filed an affidavit of indigency and a request to proceed in the case in forma pauperis. On September 17, 2001, Buster filed a written request to the clerk reiterating that he could not afford to pay costs or obtain service on Allison, and asked the clerk to request the trial court to rule on his divorce and his ancillary motions. On February 4, 2002, Buster filed another request with the clerk inquiring into the status of his case and seeking “proper due process procedures by this court.” In this letter, he stated that he was incarcerated and indigent and unable to pay filing fees or acquire defense counsel; requested that the divorce be acted on as “discreetly and expeditiously as possible”; that he did not have the money to post citation by publication or pay an officer of the court to post citation; and requested the court for “assistance.” He asked the clerk to “please respond to this letter and give me an answer to ... what can I do to get this done?” On February 25, 2002, Buster filed a “Motion for Appointment of Attorney Ad Litem and for the Clerk to post public notification to Respondent.” On the same day, Buster filed a motion for writ of habeas corpus ad testificandum asking to be brought before the trial court personally for trial of the divorce action.

None of these motions or requests by Buster was acted on by the trial court. Instead, on October 8, 2002, the clerk sent Buster a notice that, pursuant to Tex.R. Civ. P. 165a, the trial court would conduct a hearing on October 21, 2002, and would dismiss Buster’s case for want of prosecution unless Buster or an attorney appeared in person and showed good cause for maintaining the case on the docket. Buster did not appear and was not represented by counsel at the hearing. On October 21, 2002, the court dismissed Buster’s case “for want of prosecution.”

Thereafter, on November 5, 2002, Buster filed a motion for new trial and a request for leave to appeal. On the same day, and within the plenary power of the trial court, Buster filed his notice of appeal.

A trial court has the inherent power to dismiss a case for want of prosecution, but express authority to do so is also given by Rule 165a in cases where a [144]*144party plaintiff fails to appear for any scheduled hearing, or when the case is not disposed of within the time standards set by the Texas Supreme Court. Tex.R. Civ. P. 165a; Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex.1999). Rule 165a also provides a procedure for reinstatement of causes dismissed for failure to appear at any hearing. See Tex.R. Civ. P. 165a(3). The courts have held, however, that the reinstatement provision applies only to cases dismissed for failure to appear, not to cases dismissed for want of prosecution. Burton v. Hoffman, 959 S.W.2d 351 (Tex.App.-Austin 1998, no pet.); Clark v. Yarbrough, 900 S.W.2d 406 (Tex.App.-Texarkana 1995, writ denied). The standard for reviewing a dismissal for want of prosecution is abuse of the court’s discretion, whereas the test for reinstatement of a case dismissed under the failure to appear provision of Rule 165a is mistake or accident on the part of the aggrieved party. Burton v. Hoffman, 959 S.W.2d 351.

Buster did not file a verified petition to reinstate as required by Rule 165a(3), but in his motion for new trial, he requested several actions, including the reinstatement of his case. In this appeal, however, he does not complain specifically of the trial court’s failure to reinstate his case, but only of the court’s action in dismissing his case. To appeal from a dismissal for want of prosecution, it is not necessary to perfect an appeal from a denial of a motion to reinstate, and the appeal is from the order of dismissal. Hosey v. County of Victoria, 832 S.W.2d 701 (Tex.App.-Corpus Christi 1992, no. writ).

There is no absolute right for an inmate to appear in court in person in a civil case. Armstrong v. Randle, 881 S.W.2d 53, 57 (Tex.App.-Texarkana 1994, writ denied). In considering an inmate’s right to appear, courts generally follow a balancing approach, weighing the preservation of the correctional system’s integrity against the prisoner’s right of access, with a goal of achieving a balance that is fundamentally fair. Ex parte Guajardo, 70 S.W.3d 202, 205 (Tex.App.-San Antonio 2001, no pet.).

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Bluebook (online)
115 S.W.3d 141, 2003 Tex. App. LEXIS 6692, 2003 WL 21788932, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-buster-texapp-2003.