In The
Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-14-00332-CV ____________________
ROY GRAY JR., Appellant
V.
SONYA GRAY, Appellee
________________________________________________________________________
On Appeal from County Court at Law No. 3 Montgomery County, Texas Trial Cause No. 14-02-02083 CV ________________________________________________________________________
MEMORANDUM OPINION
In a single issue, Appellant Roy Gray Jr. (Gray) appeals the trial court’s
order dismissing his divorce proceeding for want of prosecution. We reverse and
remand.
UNDERLYING FACTS
Gray filed his pro se Petition for Divorce from Defendant Sonya Gray
(Respondent) in Montgomery County on February 21, 2014. In his petition Gray
1 alleged that he was “currently incarcerated” and therein he provided his Texas
Department of Criminal Justice prisoner number. Gray requested that service upon
Respondent be accomplished by United States Postal Service certified mail or
personal service “as the Court deems appropriate[,]” and requested that the court
clerk advise him when service was accomplished. Gray further requested that he
appear “at any and all hearings in this matter by the alternate methods of affidavit
and telephone conference call from his prison unit of assignment.” Gray
accompanied his petition with a motion to proceed in forma pauperis and an
affidavit of indigence. His affidavit of indigence alleged that he has “no ability to
pay any costs by [sic] attorney and no assistance from an attorney.” In Gray’s
petition, he alleged that there were no children of the marriage under the age of
eighteen or otherwise entitled to support, and that the parties would either enter
into an agreement regarding property, or that the court should divide the estate in a
manner that the court deemed just and right as provided by law.
The clerk’s record reflects that the clerk mailed the Divorce Citation to
Respondent at the address Gray provided in his petition and that it was mailed
using the United States Postal Service-certified mail, on or about February 28,
2014. The record also indicates that the citation was returned to the clerk’s office
on March 31, 2014, with the following notation:
2 RETURN TO SENDER UNCLAIMED UNABLE TO FORWARD RETURN TO SENDER
On or about April 18, 2014, Gray forwarded a letter to the Montgomery
County District Clerk asking whether the citation and service had been
successfully accomplished on Respondent. The letter averred that the clerk’s office
had mailed the citation by “USPS-cert. on March 3, 2014.” Gray’s letter included
his address and prisoner number with the Texas Department of Criminal Justice,
which matched the information contained in his petition. In his appellate brief,
Gray states that “[t]he Clerk failed to respond” to his inquiry in the April 18th
letter. The clerk’s record currently before us provides no evidence that the clerk
responded to his letter. But, the record indicates that the clerk’s office received
Gray’s April 18th letter on April 24, 2014.
The trial court issued a “Notice of Intent to Dismiss[.]” The notice explained
that the case was “eligible for dismissal for want of prosecution” because the
matter had been on file more than ninety days without service of citation having
been perfected on the Respondent. The notice further stated that:
THE COURT WILL CONSIDER RETENTION OF THE CASE IF A VERIFIED MOTION TO RETAIN IS FILED SPECIFYING THE DUE DILIGENCE UNDERTAKEN AND GENERALLY SHOWING GOOD CAUSE WHY THE CAUSE SHOULD NOT BE DISMISSED. ANY SUCH MOTION MUST BE FILED SEVEN (7) [sic] PRIOR TO THE HEARING DATE NOTICED BELOW:
3 June 27, 2014, AT 10:00 AM Failure to timely file a verified Motion for retention AND attend the hearing above will automatically result in the case being dismissed.
The Notice of Intent to Dismiss was signed May 30, 2014, and filed June 2, 2014.
Gray states that he received the notice on June 9, 2014. In response, he then
prepared and forwarded “Petitioner’s Motion to Retain and Request for Personal
Service[,]” which included the following: a statement that he first learned of the
failure of service upon Respondent when he received the Notice of Intent to
Dismiss; a request for personal service of citation upon Respondent; a request to
appear at the hearing scheduled for June 27, 2014, by telephone from his prison
unit; a request to retain the case on the docket; and an allegation that the motion
was “dated and submitted via placement in the prison mailbox on June 20, 2014.”
Gray’s motion to retain was not verified by a notary public; however, Gray
included the statement that “[b]eing presently incarcerated, I declare under penalty
of perjury that the foregoing Motion is true and correct.” The record reflects the
motion was received by the clerk on June 25, 2014.
The trial court held a hearing on June 27, 2014, as scheduled. Neither Gray
nor Respondent appeared, nor did any attorneys appear on their behalf. On July 2,
2014, the court signed an Order for Dismissal for Want of Prosecution, which
stated that neither party had appeared to show cause why the case should not be
4 dismissed. 1 Gray did not file a motion to reinstate, but he timely filed a notice of
appeal.
STANDARD OF REVIEW
We review a trial court’s dismissal for want of prosecution for an abuse of
discretion. 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.). To
determine whether the trial court abused its discretion, we must decide whether the
court acted without reference to any guiding rules or principles; in other words,
whether the action of the trial court was arbitrary or unreasonable. See Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985); Ringer, 274
S.W.3d at 867.
ANALYSIS
Gray argues that the trial court abused its discretion in dismissing the matter
“based on [his] non-appearance due to the court’s failure to act on [his] request to
participate by alternate methods” and “without [his] ability to be heard.”
1 The clerk’s record includes a copy of an unsworn return of service that includes a typewritten sentence that appears to state that Sonya Gray was served “at 0255 O’clock PM the 8 day of July, 2014, by delivering” the citation personally to Respondent Sonya Gray. We note that the officer’s return and citation was styled as a “Divorce Citation” but listed the “Plaintiff” as “State of Texas.” It also indicates that a copy of the petition was attached to the citation when it was served on the Respondent.
5 The trial court served notice on Gray that the case would be dismissed for
want of prosecution if he did not file a verified motion to retain specifying the due
diligence undertaken and generally showing good cause as to why the case should
not be dismissed, and further required that the motion must be filed seven days
prior to the hearing that was set for June 27, 2014. The notice from the court also
stated that “failure to timely file a verified Motion for retention and attend the
hearing above will automatically result in the case being dismissed.” 2
A verification is “‘[a] formal declaration made in the presence of an
authorized officer, such as a notary public, by which one swears to the truth of the
statements in the document.’” Andrews v. Stanton, 198 S.W.3d 4, 8 (Tex. App.—
El Paso 2006, no pet.) (quoting Black’s Law Dictionary 1556 (7th ed. 1999)).
Gray’s motion to retain is not attested to by a notary or other official; therefore,
Gray’s motion is not verified.
Section 132.001(e) of the Texas Civil Practice and Remedies Code permits
inmates to file an unsworn declaration in lieu of a written sworn declaration. Tex.
2 We note that neither Rule 165a of the Texas Rules of Civil Procedure nor the local rules for Montgomery County Courts at Law require a motion to retain to be verified. Tex. R. Civ. P. 165a(1) (stating that, at the dismissal hearing, “the court shall dismiss for want of prosecution unless there is good cause for the case to be maintained on the docket[]” but not requiring a motion to retain); Montgomery Cnty. (Tex.) Cnty. Courts at Law Loc. R. 3.6(C) (requiring that a motion to retain be written and “filed prior to the dismissal date as set forth in the notice of intention to dismiss[.]”). However, on appeal, Gray does not present any argument or challenge to the verification required by the notice of dismissal. 6 Civ. Prac. & Rem. Code Ann. § 132.001(e) (West Supp. 2014). An inmate’s
unsworn declaration under section 132.001(e) must include a jurat in substantially
the following form:
My name is (First) (Middle) (Last), my date of birth is _____, and my inmate identifying number, if any, is _____. I am presently incarcerated in (Corrections unit name) in (City), (County), (State) (Zip Code). I declare under penalty of perjury that the foregoing is true and correct. Executed on the _____ day of (Month), (Year). ([Signed by] Declarant)
Id.
Gray’s motion to retain does not include a jurat. In the signature block of the
motion to retain, however, he includes his name, his inmate number, an address,
and his personal signature. Gray also included a statement in his motion to retain
that “[t]his Motion is dated and submitted via placement in the prison mailbox on
June 20, 2014.” Furthermore, he states: “Being presently incarcerated, I declare
under penalty of perjury that the foregoing Motion is true and correct.”
“The operative part of the jurat is the portion subjecting the declarant to the
penalty of perjury.” United Rentals, Inc. v. Smith, 445 S.W.3d 808, 813 (Tex.
App.—El Paso 2014, no pet.); see also Tex. Dep’t of Pub. Safety v. Caruana, 363
S.W.3d 558, 564 (Tex. 2012) (explaining that unsworn declarations may be used in
lieu of oaths or affidavits so long as they are subscribed as true “under penalty of
7 perjury”); Bahm v. State, 219 S.W.3d 391, 393 (Tex. Crim. App. 2007) (“Section
132.002 then sets out the actual requirements for [inmates’ unsworn] declarations,
which are simply that the unsworn declaration must be (1) written and (2)
‘subscribed by the person making the declaration as true under penalty of
perjury.’”); Perez v. Tex. Dep’t of Criminal Justice, No. 06-14-00065-CV, 2015
WL 733257, at *2 n.3 (Tex. App.—Texarkana Feb. 20, 2015, no pet. h.)
(characterizing an inmate declaration as “dubious” that did not apply the perjury
language to the declarant himself because, as written, the declarant “swore to
nothing”). The omission of certain information need not be fatal. See United
Rentals, 445 S.W.3d at 813 (finding that the omission of the declarant’s address
and date of birth was not fatal because the declarant included “under penalty of
perjury” language); see also Owens v. State, 763 S.W.2d 489, 491 (Tex. App.—
Dallas 1988, pet. ref’d) (concluding an inmate’s unsworn declaration was
substantially compliant with sections 132.001-.003 where it declared personal
knowledge and was subject to penalty of perjury although it failed to include the
inmate’s identification number, county jail name, or place of incarceration).
In Teixeira v. Hall, 107 S.W.3d 805 (Tex. App.—Texarkana 2003, no pet.),
the Texarkana Court of Appeals examined the adequacy of an inmate’s unsworn
declaration that did not comport with the template provided in section 132.001.
The court stated the basic question was whether, if the inmate had lied, perjury
8 could be assigned to his declaration. Id. at 810. The court looked to cases regarding
affidavits under Texas Rule of Civil Procedure 145 for guidance and concluded
those cases “have not held that . . . magic words are the keystone” to determining
adequacy; rather, the factors determining adequacy were whether the statements
were based on the affiant’s personal knowledge and “whether the statement is so
positive as to allow perjury to lie.” Id. The Teixeira court concluded “[w]e see no
reason to apply a stricter rule to declarations made under Section 132.001 by a
prison inmate.” Id.
Gray’s motion to retain does not include a discrete jurat or
acknowledgement; however, it does contain his statement that “[b]eing presently
incarcerated, I declare under penalty of perjury that the foregoing Motion is true
and correct.” Because the “operative part of the jurat” that subjects the declarant to
the penalty of perjury is included, we find his declaration substantially complies
with the statutory requirements and may substitute for a sworn verification.
Next, we examine the timeliness of the motion to retain. The Texas Supreme
Court has previously adopted a “prisoner mailbox rule” for court filings by pro se
inmates in Chapter 14 proceedings, and the courts have also applied the rule in
other civil proceedings. See Warner v. Glass, 135 S.W.3d 681, 684 (Tex. 2004);
see also Ramos v. Richardson, 228 S.W.3d 671, 673-74 (Tex. 2007) (extending
prisoner mailbox rule to civil suits filed by pro se inmates outside of context of
9 Inmate Litigation Act); In re Marriage of Brown, No. 07-06-0234-CV, 2006 WL
2080648, at *1 (Tex. App.—Amarillo July, 27 2006, order) (per curiam) (applying
the prisoner mailbox rule to an inmate’s divorce proceeding). This rule deems a
pro se inmate’s filing with the clerk of the court as filed “at the time the prison
authorities duly receive the document to be mailed.” Warner, 135 S.W.3d at 684.
Gray’s motion to retain states he placed it in the prison mailbox on June 20,
2014. Furthermore, the record in this matter reflects the motion to retain was
received by the clerk’s office on June 25, 2014, and before the hearing on the
Notice of Intent to Dismiss. Gray’s motion to retain was timely filed.
A trial court has authority to dismiss a case for want of prosecution pursuant
to Texas Rule of Civil Procedure 165a or under the court’s inherent power to
maintain and control its docket. See Tex. R. Civ. P. 165a; Villarreal v. San Antonio
Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999); Sweed v. Nye, 354 S.W.3d 823,
825 (Tex. App.—El Paso 2011, no pet.); Ringer, 274 S.W.3d at 867. The court
must give a party notice and an opportunity to be heard before it may dismiss on
either basis. See Reese v. Reese, 256 S.W.3d 898, 899 (Tex. App.—Dallas 2008,
no pet.). Under Rule 165a, a trial court may dismiss a case for want of prosecution
on the failure of a party seeking affirmative relief to appear for a hearing or trial if
the party had notice that dismissal could result from the party’s failure to appear.
Tex. R. Civ. P. 165a(1); Villarreal, 994 S.W.2d at 630.
10 A trial court may dismiss under its inherent power when a plaintiff fails to
prosecute his or her case with due diligence. See Villarreal, 994 S.W.2d at 630;
Durbin v. Muchow, 309 S.W.3d 758, 761 (Tex. App.—Beaumont 2010, no pet.).
When the trial court indicates that it is dismissing a case under Rule 165a instead
of through its inherent power, we may only affirm the dismissal if it was proper
under Rule 165a. See Villarreal, 994 S.W.2d at 631-33; Johnson-Snodgrass v.
KTAO, Inc., 75 S.W.3d 84, 88 (Tex. App.—Fort Worth 2002, pet. dism’d)
(explaining that “[n]otice that a case may be dismissed for failure to appear at a
hearing, as authorized by rule 165a, does not constitute adequate notice that the
trial court may exercise its inherent authority to dismiss a case for want of
prosecution.”); Lopez v. Harding, 68 S.W.3d 78, 80-81 (Tex. App.—Dallas 2001,
no pet.).
Where the plaintiff has failed to use reasonable diligence to prosecute the
matter, a trial court may dismiss a civil suit for want of prosecution. See Villarreal,
994 S.W.2d at 630; In re Marriage of Buster, 115 S.W.3d 141, 144 (Tex. App.—
Texarkana 2003, no pet.). But the courts have stated that reasonable diligence to
prosecute a matter for pro se prison inmates may, in certain circumstances, be less
stringent than for litigants who are not incarcerated and are represented by counsel.
See Buster, 115 S.W.3d at 144. If a pro se inmate in a civil action is not entitled to
leave prison to appear personally in court, the inmate may be allowed to proceed
11 by affidavit, deposition, telephone, or other means. See In re R.C.R., 230 S.W.3d
423, 426 (Tex. App.—Fort Worth 2007, no pet.); Sweed v. City of El Paso, 139
S.W.3d 450, 452 (Tex. App.—El Paso 2004, no pet.). A “hearing” does not
necessarily require an oral hearing, a personal appearance, or an oral presentation
to the court. See Enriquez v. Livingston, 400 S.W.3d 610, 616 (Tex. App.—Austin
2013, pet. denied) (explaining that due process only requires an opportunity to
respond at a meaningful time and in a meaningful manner).
“It is well-established that litigants cannot be denied access to the courts
simply because they are inmates.” In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003)
(citing Hudson v. Palmer, 468 U.S. 517, 523 (1984)). To dismiss for want of
prosecution without allowing an inmate to appear by alternate methods, after he
had made a proper request, may be an abuse of discretion. See In re Marriage of
Bolton, 256 S.W.3d 832, 833 (Tex. App.—Dallas 2008, no pet.) (stating that where
trial court determines that inmate may not appear personally, the inmate should be
allowed to proceed by affidavit, deposition, telephone, or other effective means);
R.C.R., 230 S.W.3d at 426 (same); In re D.D.J., 136 S.W.3d 305, 314 (Tex.
App.—Fort Worth 2004, no pet.) (holding the trial court abused its discretion in
failing to consider inmate’s request to participate at trial by alternative means); In
re B.R.G., 48 S.W.3d 812, 820 (Tex. App.—El Paso 2001, no pet.) (“A trial court’s
refusal to consider and rule upon a prisoner’s request to appear in a civil
12 proceeding personally or by other means, such that the inmate has been effectively
barred from presenting his case, constitutes an abuse of discretion.”).
The trial court’s dismissal order reveals that neither party appeared at the
June 27, 2014 hearing. However, the record shows that Gray requested that the
court allow him to make an alternate appearance by affidavit or telephone. The
record provides no indication that the trial court acted on Gray’s request to appear
by alternate means; the record is silent as to whether or not the trial court ruled
upon Gray’s motion to retain, which again requested the court’s assistance in
serving the Respondent and that Gray be allowed to appear by telephone
conference call. According to the record before us, the trial court dismissed Gray’s
case for want of prosecution after Gray failed to appear without providing him, an
inmate, any means to appear. Dismissing Gray’s case under these circumstances is
fundamentally unfair and denied Gray an opportunity to be heard. See R.C.R., 230
S.W.3d at 427.
We note that an inmate may file a motion explicitly asking the trial court to
issue a bench warrant so that he can travel to court and appear in person at the
dismissal hearing; but inmates do not have an absolute right to appear personally at
civil proceedings, and they must justify the need for their appearance at such
proceedings under factors that include the cost and convenience of transportation.
See Z.L.T., 124 S.W.3d at 165; Ringer, 274 S.W.3d at 867-68; Pedraza v.
13 Crossroads Sec. Sys., 960 S.W.2d 339, 342 (Tex. App.—Corpus Christi 1997, no
pet.) (explaining that “prisoners have no absolute right to appear personally at civil
proceedings[,]” and a trial court must balance the State’s need to preserve the
integrity of the correctional system with the prisoner’s right of access to the court).
We find no authority indicating an inmate’s decision not to specifically request a
bench warrant to allow for a personal appearance waives the inmate’s right of
access to the court, especially when the record contains documentation that the
inmate made a good faith request prior to the hearing to appear by other means.
See Parnell v. Parnell, No. 2-09-270-CV, 2010 WL 2331411, at **3-4 (Tex.
App.—Fort Worth June 10, 2010, no pet.) (mem. op.).
For these reasons, we hold that the trial court abused its discretion by
dismissing Gray’s case for want of prosecution. Having sustained Gray’s issue, we
reverse the trial court’s judgment dismissing his case, and we remand this case to
the trial court for further proceedings.
REVERSED AND REMANDED.
_________________________ LEANNE JOHNSON Justice
Submitted on December 12, 2014 Opinion Delivered April 2, 2015
Before McKeithen, C.J., Kreger and Johnson, JJ.