Nathan Young, TDCJ #1289832 v. S. Samora, et al.--Appeal from 38th Judicial District Court of Medina County

MEMORANDUM OPINION
No. 04-07-00350-CV
Nathan YOUNG,
Appellant
v.
Samuel SAMORA, Patricia Williams, Roger Pawelek, and Jamie Burden,
Appellees
From the 38th Judicial District Court, Medina County, Texas
Trial Court No. 06-11-18163-CV
Honorable Mickey R. Pennington, Judge Presiding (1)

Opinion by: Sandee Bryan Marion, Justice

 

Sitting: Catherine Stone, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

 

Delivered and Filed: November 14, 2007

 

REVERSED & REMANDED

Appellant Nathan Young appeals from a trial court's dismissal of his civil suit against Samuel Samora, Patricia Williams, Roger Pawelek, and Jamie Burden, who are employed as jailers by the Texas Department of Criminal Justice. Because the court dismissed Young's suit without affording him the opportunity to show cause why the case should not have been dismissed, we reverse and remand.

BACKGROUND

Young is an inmate at the Ruben Torres Unit of the Texas Department of Criminal Justice - Institutional Division. While at the Ruben Torres Unit, Young became involved in an incident with jailers that ultimately caused him to lose his trusty status and other inmate privileges. When administrators ruled against him at the administrative level, Young filed a pro se civil suit in the 38th Judicial District Court in Medina County. Trial was set for February 20, 2007. Young did not appear, and an Order of Dismissal was entered against him. On March 12, 2007, the dismissal was mailed to Young, who, on appeal, claims this was his first notice of the February 20 trial setting. (2) Young complains the trial court abused its discretion and violated his rights under the federal and state constitutions in dismissing his lawsuit. Because we conclude the trial court erred in dismissing Young's suit, we need not address the constitutional issues.

ANALYSIS

We review a dismissal for want of prosecution under a clear abuse of discretion standard. See MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997); Cappetta v. Hermes, 222 S.W.3d 160, 164 (Tex. App.-San Antonio 2006, no pet.). To avoid dismissal, a plaintiff must show he exercised reasonable diligence in prosecuting his case. Id. A trial court's authority to dismiss for want of prosecution derives from express provisions of the Texas Rules of Civil Procedure and from the trial court's inherent power. See Tex. R. Civ. P. 165a; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 850 (Tex. 2004). If a trial court had authority to invoke its inherent powers to dismiss for want of prosecution at any time, with or without proper notice, cases could be summarily dismissed at random. See Goff v. Branch, 821 S.W.2d 732, 736 (Tex. App.-San Antonio 1991, writ denied), abrogated in part on other grounds by Cappetta, 222 S.W.3d at 166-67 & n.6. Before a court may dismiss for want of prosecution under either Rule 165a or its inherent authority, a party must be provided with notice and an opportunity to be heard. See Tex. R. Civ. P. 165 A. 1; Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999). Rule 165a envisions a "dismissal hearing" at which a plaintiff is given the opportunity to show "good cause for the case to be maintained on the docket." See Tex. R. Civ. P. 165 A. 1. The requirements of notice and a hearing are necessary to ensure the dismissed claimant has received due process. See Hubert v. Illinois State Assistance Comm'n, 867 S.W.2d 160, 163 (Tex. App.-Houston [14th Dist.] 1993, no pet.).

Here, the trial court set a trial date of February 20, 2007. The notice of the trial setting contained the following language: "IF NO APPEARANCE IS MADE BY EITHER PLAINTIFF, DEFENDANT, PETITIONER OR RESPONDENT, or their respective counsel, and no postponement has been granted by the Court, it is further ordered that there will be a show cause hearing held at 9:00 a.m. on the Monday next following the date set out above for the nonappearing party or counsel to show cause why a dismissal . . . should not be imposed by the Court for nonappearance . . . ." Although the notice states a show cause hearing would be held at a later date, it is apparent from the record that Young received no such opportunity because the order of dismissal was signed on February 20, 2007, the day of trial.

Because it appears the trial court did not provide Young with the opportunity to be heard, we conclude the trial court erred in dismissing his suit for want of prosecution. Accordingly, we reverse the Order of Dismissal and remand for further proceedings consistent with this opinion.

Sandee Bryan Marion, Justice

1. The Order of Dismissal appellant complains of was signed by the Honorable Antonio G. Cantu, sitting by assignment.

2. Young filed this appeal of the trial court's dismissal for want of prosecution without filing a motion to reinstate in the trial court pursuant to Texas Rule of Civil Procedure 165a(3). See Tex. R. Civ. P. 165a(3).