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Court of Appeals of Texas,El Paso.

James Lee SWEED, Appellant, v. CITY OF EL PASO, Appellee.

No. 08-03-00427-CV.

Decided: July 08, 2004

Before Panel No. 4 BARAJAS, C.J., LARSEN, and McCLURE, JJ. James Lee Sweed, Gatesville, pro se. F. Duane Force, Delgado Acosta Spencer Linebarger Heard & Perez LLP, Austin, for Appellee.


James Lee Sweed, an inmate in the Texas Department of Corrections, appeals the trial court's order dismissing his civil suit for want of prosecution.   We reverse and remand for further proceedings.


On July 31, 2001, James Sweed filed a petition against the City of El Paso. He named himself and his deceased parents as petitioners under a 42 U.S.C. § 1983 action.   Sweed's petition claimed the City had wrongfully collected property taxes against himself and his parents for the years 1988 through 1993, when the property in question was owned by another individual.   The City was served with the suit on October 29, 2001.   The City filed special exceptions, a general denial, and affirmative defenses on November 16, 2001.   Among other documents, Sweed filed a motion for post-answer default judgment, a motion for a bench trial date, a motion for summary judgment, and a motion to proceed under Tex. Civ. Prac. & Rem.Code Ann. § 14.008, requesting that he be allowed to appear by videoconferencing technology or telephone.   The record contains no action by the trial court on any of these motions.   The City filed its motion to dismiss under Civil Practice and Remedies Code Chapter 14, to which Sweed responded.   The record contains no ruling on the City's motion either.

On June 13, 2003, the trial court sent to the parties its notice of intent to dismiss for want of prosecution, setting a dismissal hearing for July 23, 2003.   Sweed filed his reply to the notice on June 30, 2003, stating among other things that hearings and trial on the merits should “be held by audio video tape because plaintiffs is confine [sic] in Texas prison.”   He also requested that the trial court set the case for trial on the merits.

Nevertheless, on August 13, 2003, the trial court dismissed the case pursuant to Rule 165a of the Texas Rules of Civil Procedure.   On August 29, 2003, Sweed filed his motion for reinstatement, urging that the trial court knew or should have known that Sweed was confined in Texas prison and had no way to appear for hearing other than through video technology or by telephone.   The trial court did not rule on this motion.   This appeal follows.

Standard of Review

 We review the trial court's dismissal of a case for want of prosecution under an abuse of discretion standard.  In re Marriage of Buster, 115 S.W.3d 141, 144 (Tex.App.-Texarkana 2003, no pet.). A trial court abuses its discretion where it acts in an unreasonable or arbitrary manner, or without reference to any guiding rules or principles.  Downer v. Aquamarine Operators, 701 S.W.2d 238, 241-42 (Tex.1985).

Dismissal of inmate's lawsuit for want of prosecution

 Trial courts have inherent power to dismiss cases for want of prosecution, and courts have express authority to do so under Tex.R. Civ. P. 165a.  Alexander v. Lynda's Boutique, 134 S.W.3d 845, 850 (Tex.2004).   Here, as the trial court's order specifically relies upon Rule 165a, we will analyze the case under that authority. That rule states:

1.  Failure to Appear.   A case may be dismissed for want of prosecution on failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice․ 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․ Tex.R. Civ. P. 165a(1).

This authority of the court is not without reasonable limits, however.

 An inmate has a constitutional right to access the civil trial courts.  Hudson v. Palmer, 468 U.S. 517, 523, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984).   That right is not without limits, however.   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, 56 (Tex.App.-Texarkana 1994, writ denied).   In considering an inmate's right to appear, courts 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.  Id. at 57.   Where the court has determined that the inmate will not be allowed to appear personally, however, the inmate should be allowed to proceed by affidavit, deposition, telephone, or other effective means.  Aguilar v. Alvarado, 39 S.W.3d 244, 248 (Tex.App.-Waco 1999, pet. denied).

Here, on at least three occasions, Sweed gave notice to the trial court that he was in prison and moved to proceed under Tex. Civ. Prac. & Rem.Code Ann. § 14.008 by telephone or videoconferencing technology.   The trial court never ruled upon Sweed's requests.   Instead, the trial court sent out its notice of intent to dismiss for want of prosecution on June 13, 2003 and Sweed promptly responded in a reply filed June 30.   In his response, Sweed pointed out he had filed his own motion for summary judgment, still pending before the trial court, and that “[p]laintiff's filing motions after motions for an order on his motion for summary judgment would only overload the court and court clerk files with unnecessary․” Also in this reply, Sweed asks again that he be allowed to appear by “audio video tape” and that the case be set for hearing on the merits.   The trial court nonetheless dismissed the case for want of prosecution.   Moreover, after dismissal Sweed filed a motion to reinstate pointing out that the trial court knew or should have known that Sweed was incarcerated and had no way to appear for hearing other than through videoconferencing or telephone.

Thus, it appears that Sweed was attempting to prosecute his claims, and further that he did what he could to display good cause why his case should be maintained on the court's docket, as required by Rule 165a.   He had obtained service on the City, he had served and obtained discovery, he had filed motions and responded promptly to the court's notice.   The court did not rule on his motions, nor on the City's motion to dismiss, nor on any other pending matter save the notice of intent to dismiss for want of prosecution.   Upon receiving the dismissal order, Sweed again promptly responded, requesting reinstatement.   Under all these circumstances, we conclude that the trial court abused its discretion in dismissing this case for want of prosecution.   See Buster, 115 S.W.3d at 145. Sweed's sole issue on appeal is therefore sustained.


The dismissal order is reversed, and the case is remanded for further proceedings.   Nothing in this opinion should be interpreted as addressing the merits of any pending motion in the trial court.

Because Sweed is an inmate who filed an unsworn declaration of inability to pay costs, his suit is governed by Chapter 14 of the Texas Civil Practice and Remedies Code. See Tex.Civ.Prac. & Rem.Code Ann. § 14.002(a)(Vernon 2002).   Nevertheless, the trial court dismissed the instant case, not under any of the provisions found in Chapter 14, but pursuant to Rule 165a for want of prosecution.   While the majority opinion professes to limit its consideration to the requirements of that rule, it faults the trial court for not granting Sweed's request to appear at the dismissal hearing via videoconferencing technology under Section 14.008 of the Texas Civil Practice and Remedies Code. While I concur in the majority's conclusion that the trial court erred in dismissing this case pursuant to Rule 165a, I do not agree that Section 14.008 is mandatory as suggested by the majority opinion or that it even applies under the circumstances of this case.

With the exception of suits brought under the Family Code, inmate litigation in which the inmate files an affidavit or unsworn declaration of inability to pay costs is governed by special procedural rules set out in Chapter 14 of the Civil Practice and Remedies Code. See Tex.Civ.Prac. & Rem.Code Ann. § 14.002 (Vernon 2002);  Jackson v. Texas Department of Criminal Justice-Institutional Division, 28 S.W.3d 811, 812-13 (Tex.App.-Corpus Christi 2000, pet. denied).   The Legislature enacted Chapter 14 to control the flood of frivolous suits being filed in Texas courts by prison inmates, as these suits consume valuable judicial resources with little offsetting benefit.   Jackson, 28 S.W.3d at 813.   Under this chapter, a trial court has broad discretion to dismiss a claim, either before or after service of process, if the court finds that (1) the allegation of poverty in the affidavit or unsworn declaration is false;  (2) the claim is frivolous or malicious;  or (3) the inmate filed an affidavit or unsworn declaration required by Chapter 14 that the inmate knew was false.1  Tex.Civ.Prac. & Rem.Code Ann. § 14.003(a)(Vernon 2002);  see Jackson, 28 S.W.3d at 813.   In determining whether a claim is frivolous or malicious, the court may consider whether:  (1) the claim's realistic chance of ultimate success is slight;  (2) the claim has no arguable basis in law or in fact;  (3) it is clear that the party cannot prove facts in support of the claim;  or (4) the claim is substantially similar to a previous claim filed by the inmate because the claim arises from the same operative facts.  Tex. Civ. Prac. & Rem.Code Ann. § 14.003(b)(Vernon 2002).   In making such a determination, the trial court may hold a hearing, and that hearing may be held before or after service of process and on the motion of the court, a party, or the court clerk.  Tex. Civ. Prac. & Rem.Code Ann. § 14.003(c)(Vernon 2002).

Section 14.008, the statute relied on by the majority opinion, provides as follows:

(a) The court may hold a hearing under this chapter at a jail or a facility operated by or under contract with the department or may conduct the hearing with video communications technology that permits the court to see and hear the inmate and that permits the inmate to see and hear the court and any other witness.

(b) A hearing conducted under this section by video communications technology shall be recorded on videotape.   The recording is sufficient to serve as a permanent record of the hearing.

Tex.Civ.Prac. & Rem.Code Ann. § 14.008 (Vernon 2002).

Section 14.009 permits the trial court to request a person with an admissible document or admissible testimony relevant to the subject matter of the hearing to submit a copy of the document or written statement stating the substance of the testimony.  Tex.Civ.Prac. & Rem.Code Ann. § 14.009(a)(Vernon 2002).   Finally, Section 14.010 permits the trial court to dismiss the entire claim or a portion of it under Chapter 14.  Tex.Civ.Prac. & Rem.Code Ann. § 14.010(a)(Vernon 2002).   Therefore, under Chapter 14, the trial court has statutory authority to hold a dismissal hearing pursuant to Section 14.003, with or without notice to the inmate, with or without the submission of evidence, and with or without the inmate's requested presence via video teleconference.  Brewer v. Myrtle Cove Apartments, No. 05-01-01045-CV, 2002 WL 1767218 (Tex.App.-Dallas August 1, 2002, no pet.)(not designated for publication).

Here, the City of El Paso filed a motion to dismiss pursuant to Section 14.003 alleging not only that Sweed's suit was frivolous and malicious but also that the declaration he filed pursuant to Section 14.004 was false since he had not identified all of his prior suits.   Attached to the City's motion is evidence which tends to show that Sweed had previously litigated the same issues raised in the instant case 2 and he had failed to identify not only that suit but also numerous other suits previously filed in the courts of El Paso County.   For unknown reasons, the trial court did not hold a hearing under Section 14.003 or act on the City's motion to dismiss.   Instead, the court sent out a notice of its intention to dismiss the case for want of prosecution pursuant to Rule 165a.   The trial court ordered Sweed to appear at the mandatory July 23, 2003 dismissal hearing and then dismissed the case on August 13, 2003 when Sweed did not appear.

This case is plainly governed by Chapter 14 of the Civil Practice and Remedies Code. The trial court was not required to honor Sweed's request to appear at any hearing, including a Section 14.003 dismissal hearing, held under that chapter.   See Brewer, 2002 WL 1767218, at *2-3 (holding that trial court was not required to grant inmate's request made pursuant to Section 14.008 to attend dismissal hearing).   However, the trial court did not hold a hearing under Chapter 14 but instead held a dismissal hearing pursuant to Rule 165a.   Therefore, Section 14.008 is inapplicable.   Nevertheless, it is fundamentally unfair to order Sweed to appear at a mandatory dismissal hearing, ignore his request to appear at the hearing either telephonically or by videoconference technology, and then dismiss his case for the sole reason that he failed to appear at the mandatory hearing.

Accordingly, I concur with the majority opinion's conclusion that the trial court's dismissal order must be reversed and remanded to the trial court for further proceedings.


1.   The inmate is required to file an affidavit or declaration both identifying and describing each suit previously brought by the inmate and stating the result of the suit.  Tex.Civ.Prac. & Rem.Code Ann. § 14.004(Vernon 2002).

2.   That case concluded when this Court affirmed the judgment of the trial court on November 20, 2001.   See Sweed v. City of El Paso, No. 08-00-00195-CV, 2001 WL 1469071 (Tex.App.-El Paso November 20, 2001, pet.denied).


McCLURE, J., concurring.

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