Texas Department of Public Safety v. Andre Maurice Ellzey--Appeal from County Court at Law No 8 of Bexar County

Appellant

v.

Andre Maurice ELLZEY,

Appellees

From County Court at Law No. 5, Bexar County, Texas

Trial Court No. 254751

Honorable Karen Crouch, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Phil Hardberger, Chief Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: April 11, 2001

REVERSED AND REMANDED

The Texas Department of Public Safety (DPS) appeals the county court's dismissal of its administrative appeal and denial of its motion to reinstate. The justice court denied the DPS's request to revoke Andre Maurice Ellzey's concealed handgun license, and the DPS filed a notice of appeal with the county court. After the DPS failed to appear at the special setting, the county court dismissed the appeal and, subsequently, denied the DPS's motion to reinstate. Holding the county court abused its discretion in denying the motion to reinstate, we reverse the judgment of the county court and remand for a new trial.

Background

Three months after issuing Ellzey a concealed handgun license, the DPS sent him a letter, revoking the license. Ellzey challenged the revocation in the justice court, and after the justice court denied the DPS's request to revoke, the DPS filed a notice of appeal with the county court. The county court set the appeal for hearing, and a week later, ordered a special setting for the appeal.

After the DPS failed to appear at the special setting, the county court dismissed the appeal for want of prosecution. On the same day, unaware of the county court's dismissal, Ellzey filed a motion to dismiss, claiming the DPS's notice of appeal was filed late. Following the dismissal, the DPS filed a motion to reinstate the appeal, claiming it had no notice of the original hearing date, the special setting, or the county court's intent to dismiss the appeal. The county court denied the DPS's motion to reinstate on grounds the DPS's notice of appeal was filed untimely and the justice court correctly denied the DPS's request to revoke Ellzey's license.

Standard of Review

We review a dismissal for want of prosecution and a denial of a motion to reinstate under an abuse of discretion standard. State v. Rotello, 671 S.W.2d 507, 509 (Tex. 1985); Wyatt v. Tex. Okla. Express, Inc., 693 S.W.2d 731, 732 (Tex. App.-Dallas 1984, no writ). In reviewing factual issues committed to the court's discretion, an abuse of discretion is shown when "the trial court could reasonably have reached only one decision" and failed to do so. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992). But a trial court has no discretion in determining what the law is or applying the law to the facts. Id. at 840.

Order of Dismissal

The DPS claims the dismissal is improper because the DPS received no notice of the dismissal hearing. Provided a party has notice, a court may dismiss a case for want of prosecution: (1) when a party fails to appear at a hearing or trial; (2) when the case has not been disposed of within the supreme court's time standards; and (3) by the court's inherent power to dismiss when the case has not been prosecuted with due diligence. (1)

The supreme court has stated "[t]he failure to provide adequate notice of the trial court's intent to dismiss for want of prosecution requires reversal." Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999). Although the DPS claims the county court erred by dismissing the case without providing the DPS notice, the error, if any, was remedied when the county court notified the DPS and held a hearing on the DPS's motion to reinstate. Jimenez v. Transwestern Prop. Co., 999 S.W.2d 125, 128-29 (Tex. App.-Houston [14th Dist.] 1999, no pet.); Clark v. Yarbrough, 900 S.W.2d 406, 409 (Tex. App.-Texarkana 1995, writ denied). We overrule the DPS's second point of error.

Motion to Reinstate

The DPS also appeals the county court's denial of its motion to reinstate. When a case is dismissed for want of prosecution, "[t]he court shall reinstate the case upon finding after a hearing that the failure of the party [to appear] was not intentional or the result of conscious indifference but was due to an accident or mistake or that the failure has been otherwise reasonably explained." (2) The operative standard is essentially the same as that for setting aside a default judgment. See Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (1939). Proof of adequate justification for the party's failure to appear, such as accident, mistake, or other reasonable explanation, negates the intent or conscious indifference for which reinstatement can be denied. Bank One, Texas, N.A. v. Moody, 830 S.W.2d 81, 84 (Tex. 1992).

In this case, the county court specified its reasons for denying the motion to reinstate, and as such, the DPS "must negate only the reason stated in the dismissal order." Rampart Capital Corp. v. Maguire, 974 S.W.2d 195, 197 (Tex. App.-San Antonio 1998, pet. denied). The county court denied the motion to reinstate because: (1) the DPS's notice of appeal was filed untimely; and (2) the DPS's original pleadings in the justice court were "defective [and] based on erroneous facts . . . and [the justice court] ruled wisely and correctly in denying [the DPS's] request to suspend the handgun license."

Section 411.180 of the Texas Government Code governs revocation of concealed handgun licenses, providing a party may appeal an adverse ruling by a justice court by filing a petition with the county court within thirty days of the adverse ruling. Tex. Gov't Code Ann. 411.180(e) (Vernon 1998). Further, Tex. R. Civ. P. 5 governs the filing date if documents are mailed:

If any document is sent to the proper clerk [by mail]. . . on or before the last day for filing same, the same, if received by the clerk not more than ten days tardily, shall be filed by the clerk and be deemed filed in time.

Tex. R. Civ. P. 5. A legible postmark or an uncontroverted affidavit from the sending attorney serve as prima facie evidence of the date of filing. Id.; Lofton v. Allstate Ins. Co., 895 S.W.2d 693, 693 (Tex. 1995).

In this case, the justice court's ruling was signed on July 15, 1999, making August 16, 1999 the deadline for filing a notice of appeal with the county court. Tex. R. Civ. P. 4, 5. The record reflects the notice of appeal was mailed on August 13, 1999 and was received by the county clerk on August 18, 1999. The notice of appeal was filed timely; therefore, the county court abused its discretion in denying the motion to reinstate on this ground.

B. Justice Court Pleadings

The county court also denied the DPS's motion to reinstate on the ground the justice court correctly denied the DPS's request to revoke Ellzey's license. Consideration of a motion to dismiss involves a review of the circumstances preventing the party from appearing at the initial dismissal hearing, not a determination of the merits of the case. See Tex. R. Civ. P. 165a. Further, a county court must conduct a trial de novo on the appeal of a denial of a request to revoke a concealed handgun license. Tex. Gov't Code Ann. 411.180(e).Accordingly, the county court abused its discretion in denying the DPS's motion to reinstate on this ground.

Conclusion

Holding the county court abused its discretion in denying the DPS's motion to reinstate, we reverse the judgment of the county court and remand the case for a new trial.

PAUL W. GREEN

JUSTICE

DO NOT PUBLISH

1. Tex. R. Civ. P. 165a(1), (2); City of Houston v. Thomas, 838 S.W.2d 296, 297 (Tex. App.-Houston [1st Dist.] 1992, no writ) (citing Veteran's Land Bd. v. Williams, 543 S.W.2d 89, 90 (Tex.1976)); see Creel v. Dist. Atty., 818 S.W.2d 45, 46 (Tex. 1991); Rohus v. Licona, 942 S.W.2d 111, 112 (Tex. App.-Houston [1st Dist.] 1997, no writ); Alvarado v. Magic Valley Elec. Co-op., Inc., 784 S.W.2d 729, 732 (Tex. App.-San Antonio 1990, writ denied).

2. Tex. R. Civ. P. 165a(3); Smith v. Babcock & Wilcox Constr. Co., Inc., 913 S.W.2d 467, 468 (Tex. 1995). The Rule 165a(3) standard for reinstatement is inapplicable to cases dismissed under the trial court's inherent power. Ozuna v. Southwest Bio-Clinical Laboratories, 766 S.W.2d 900, 903 (Tex. App.-San Antonio 1989, writ denied) (stating "when a court has dismissed a case for want of diligent prosecution . . . the court need not reinstate the case upon a mere showing that the lack of prosecution was not intentional but the result of accident or mistake").