JERRY WALKER TARTER, Appellant v. LORETTA A. KELLER and THE LAW OFFICES OF KELLER & STARK, Appellees

REVERSED and REMANDED; Opinion issued April 29, 2005
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-04-01116-CV
............................
JERRY WALKER TARTER, Appellant
V.
LORETTA A. KELLER and
THE LAW OFFICES OF KELLER & STARK, Appellees
 
.............................................................
On Appeal from the 401st Judicial District Court
Collin County, Texas
Trial Court Cause No. 401-02560-03
.............................................................
MEMORANDUM OPINION
Before Justices Bridges, O'Neill, and Mazzant
Opinion By Justice Mazzant
        Jerry Walker Tarter appeals the trial court's order dismissing his suit against Loretta A. Keller and The Law Offices of Keller & Stark (collectively, appellees). In two issues on appeal, Tarter complains the trial court abused its discretion in dismissing his suit and in dismissing his suit without ruling on a motion to appear or otherwise allowing Tarter to present his issues to the trial court. We reverse the judgment of the trial court and remand for further proceedings.
        Tarter, who is incarcerated, filed suit against appellees after Keller represented him in a family law matter. After receiving a notice of hearing, in February 2004 Tarter filed a motion to abate the case until his release from incarceration; he expected to be released no later than March 2006. The trial court denied that motion. When the case was set for a hearing before the trial court in June 2004, Tarter filed a motion requesting to appear via telephone, video-conference, deposition, or affidavit. Without expressly ruling on that motion, the trial court proceeded with the hearing as scheduled. When Tarter failed to appear, the trial court, stating that Tarter failed to prosecute the case, dismissed the suit. Tarter filed a motion to reinstate, explaining he failed to appear due to his incarceration, and the trial court denied that motion.
        Tarter combines his argument in two issues, contending the trial court abused its discretion in dismissing his suit without ruling on his motion to appear or otherwise allowing him to present his case to the trial court. We agree the court abused its discretion.
        The power of a trial court to dismiss for want of prosecution rests within the court's sound judicial discretion, subject to review. Lopez v. Harding, 68 S.W.3d 78, 80 (Tex. App.-Dallas 2001, no pet.). On appeal, the trial court's judgment of dismissal will not be reversed unless, as a matter of law, the trial court clearly abused its discretion. See id.; Manning v. North, 82 S.W.3d 706, 709 (Tex. App.-Amarillo 2002, no pet.). The burden of proof rests on a litigant asserting an abuse of discretion because there is a presumption that the action of the trial court was justified. Manning, 82 S.W.3d at 709; Hosey v. County of Victoria, 832 S.W.2d 701, 704 (Tex. App.-Corpus Christi 1992, no writ).
        Litigants cannot be denied access to the courts simply because they are inmates. See Hudson v. Palmer, 468 U.S. 517, 523 (1984). However, an inmate does 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). When deciding whether an inmate is entitled to appear in person, the trial court considers a number of factors.   See Footnote 1  Id. at 165-66. But if the trial court determines that personal appearance is not warranted, it should still act on an inmate's request to conduct the hearing by telephone conference or other means. Bouldin v. Bouldin, 133 S.W.3d 884, 886-87 (Tex. App.-Dallas 2004, no pet.) (“Although there is no absolute right for an inmate to appear in person in a civil case, where the trial court determines personal appearance is not warranted it should allow the inmate to proceed by affidavit, deposition, telephone, or other effective means.” (footnote omitted)).
        Tarter requested the trial court to abate the case until he was released. When that was denied, he moved to appear by alternative means such as telephone, video-conference, deposition, or affidavit. The trial court, without ruling on Tarter's motion, simply dismissed his suit when he subsequently did not appear for a hearing. We conclude the trial court abused its discretion in doing so. See id. We resolve Tarter's first issue in his favor; accordingly, we need not separately address Tarter's second issue.
        We reverse the judgment of the trial court and remand for further proceedings.
 
 
                                                          
                                                          AMOS L. MAZZANT
                                                          JUSTICE
 
041116F.P05
 
Footnote 1 The factors include (1) the cost and inconvenience of transporting the inmate to court; (2) the security risk and potential danger to the court and the public of allowing the inmate to attend court; (3) whether the inmate's claims are substantial; (4) whether a determination of the matter can reasonably be delayed until the inmate is released; (5) whether the inmate can and will offer admissible, noncumulative testimony that cannot be offered effectively by deposition, telephone, or otherwise; (6) whether the inmate's presence is important in judging his demeanor and credibility compared with that of other witnesses; (7) whether the trial is to the court or to a jury; and (8) the inmate's probability of success on the merits. See Z.L.T.., 124 S.W.3d at 165-66.