Jimmy Ray Britton v. Aimco Sandalwood (landlord)--Appeal from 61st District Court of Harris County

Affirmed and Memorandum Opinion filed December 6, 2005.

In The

Fourteenth Court of Appeals

_______________

NO. 14-04-00985-CV

_______________

JIMMY RAY BRITTON, Appellant

V.

AIMCO SANDALWOOD L.P. (LANDLORD), Appellee

___________________________________________________________

On Appeal from 61st District Court

Harris County, Texas

Trial Court Cause No. 03 63784

___________________________________________________________

M E M O R A N D U M O P I N I O N

Jimmy Ray Britton appeals the dismissal for want of prosecution of his wrongful death action on the grounds that the trial court: (1) did not indicate in its notice of intent to dismiss (the Anotice@) that it intended to dismiss the case under its inherent authority; and (2) erred by denying him due process of law and meaningful access to the court. We affirm.

Britton=s first issue contends that the notice failed to notify him that the trial court intended to dismiss his suit for want of prosecution under its inherent authority.[1]

A dismissal for want of prosecution is reviewed for abuse of discretion. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997). A court may dismiss a case for want of prosecution under either Texas Rule of Civil Procedure 165a or its inherent authority under common law. Alexander v. Linda=s Boutique, 134 S.W.3d 845, 850 (Tex. 2004); Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999). However, a party must be given notice and an opportunity to be heard before a court may dismiss a case for want of prosecution. Villarreal, 994 S.W.2d at 630. A court may not dismiss for want of prosecution on a ground other than those for which it gave notice of its intent to dismiss. See id. at 632-33.

In this case, the trial court=s notice of intent to dismiss stated:

NOTICE OF INTENT TO DISMISS - NO ANSWER FILED

Court records indicate that this case is eligible for dismissal for want of prosecution because no answer has been filed in this case. The case will be DISMISSED FOR WANT OF PROSECUTION, unless one of the following actions is taken by 08-16-2004:

1. A default judgment is signed;

2. An answer is filed; or

3. A verified motion to retain is filed and set for oral hearing on

 08-23-2004 at 9:00 o=clock A.M.

Failure to appear at the oral hearing will result in the case being Dismissed For Want of Prosecution.

If you have any questions regarding this notice, please contact the court coordinator Darla Coons, at (713) 755-5580.

Thank you for your prompt attention to this matter.

This notice clearly indicated that the case would be dismissed for want of prosecution if at least one of the three stated conditions was not satisfied by the specified date. Although the notice did not specify the source of the trial court=s authority to dismiss with regard to each condition, i.e., as between Rule 165a and its inherent authority, it clearly stated the circumstances in which the case would be dismissed, and there is no indication that the case was dismissed on any basis other than those listed in the notice. Therefore, Britton=s first issue fails to demonstrate that the notice was inadequate and is overruled.

Britton=s second issue argues that the trial court erroneously denied him access to the court by not granting his motion for bench warrant, not conducting a hearing via telephone, and by not appointing an attorney ad-litem.

Although litigants cannot be denied access to the courts simply because they are inmates, they do not have an absolute right to appear in person in every court proceeding. In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003). Instead, an inmate=s right of access must be weighed against the protection of our correctional system=s integrity. Id. If a trial court denies an inmate's request to personally appear at trial, the inmate should be allowed to proceed by affidavit, deposition, telephone, or other effective means. Boulden v. Boulden, 133 S.W.3d 884, 887 (Tex. App.CDallas 2004, no pet.); Aguilar v. Alvarado, 39 S.W.3d 244, 248 (Tex. App.CWaco 1999, pet. denied.).

In this case, because the record before us does not: (1) reflect that Britton set any motion to retain for hearing on August 23, as set forth in the notice; or (2) contain a motion for bench warrant, any other request for an alternative means for Britton to appear at any such hearing (or a ruling on any such request),[2] Britton=s second issue presents nothing for our review on his complaint that he was denied due process or access to the court. Accordingly, Britton=s second issue is overruled, and the judgment of the trial court is affirmed.

/s/ Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed December 6, 2005.

Panel consists of Justices Fowler, Edelman and Guzman.

[1] Britton assigns error only to the dismissal, not the trial court=s denial of his motion for reinstatement.

[2] See Tex. R. App. P. 33.1(a).