Michael Lynn Skaggs v. State

NO. 07-08-0270-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JANUARY 8, 2009

______________________________

MICHAEL LYNN SKAGGS,

                                                                                                 Appellant

v.

THE STATE OF TEXAS,

                                                                                                 Appellee

_________________________________

FROM THE 121^ST DISTRICT COURT OF TERRY COUNTY;

NO. 5700; HON. KELLY G. MOORE, PRESIDING

_______________________________

Memorandum Opinion

______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

          After a guilty plea, appellant Michael Lynn Skaggs was convicted of burglary of a habitation and, pursuant to a plea bargain, he was sentenced to ten years confinement, which was probated for ten years. Less than a year later, the State filed a motion to revoke appellant’s probation. After a hearing, the trial court did so and sentenced appellant to ten years imprisonment. Appellant appeals from that probation revocation and judgment.

          Appellant’s appointed counsel has filed a motion to withdraw, together with an Anders brief, wherein he certifies that, after diligently searching the record, he has concluded that the appeal is without merit. Along with his brief, he has filed a copy of a letter sent to appellant informing him of counsel’s belief that there was no reversible error and of appellant’s right to file a response pro se. By letter dated December 2, 2008, this court also informed appellant of his right to file a response by January 2, 2009, if he wished to do so. To date, we have received neither a response nor a request for an extension of time to file it.

          In compliance with the principles enunciated in Anders, appellate counsel has discussed whether the evidence presented at the revocation hearing was sufficient to support the trial court’s finding that appellant had violated the terms of his probation. Counsel also discussed certain evidentiary rulings made at the revocation hearing. However, he concluded that the record revealed no reversible error. Thereafter, we conducted our own review of the record to assess the accuracy of appellate counsel’s conclusion and to uncover any reversible error pursuant to Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991). We have reached the same conclusion as counsel.

          Accordingly, the motion to withdraw is granted and the judgment is affirmed.

 

                                                                           Brian Quinn

                                                                          Chief Justice

Do not publish.

508 (Tex. 1984); Finlan v. Peavy, 205 S.W.3d 647, 654 (Tex.App.-Waco 2006, no pet.) (both noting that hearing on motion to reinstate is the same hearing with the same burden of proof as a hearing before dismissal). Wallingford's first issue is overruled.

Issue Two - Was the case reinstated despite the absence of a signed written order?

By her second issue, Wallingford contends that the trial court erred by dismissing her case for want of subject matter jurisdiction because the court's intention to reinstate appears in the reporter's record and on a printed docket sheet, a proposed order of reinstatement was attached to her motion, and the court, its staff, and the parties treated the case as reinstated.

Wallingford constructs her argument for this issue on the foundation of Hardtke v. Katz, 813 S.W.2d 548 (Tex.App.-Houston [1^st Dist.] 1991, no writ). We do not find Hardtke controlling on the facts before us.

In Hardtke, the trial judge dismissed the case sua sponte because he mistakenly believed the parties failed to file a joint status report as ordered. The following day, when the judge discovered the report was timely filed, he made the following docket entry: "Order of 3/11/87 struck; case removed from dismissal docket - TRP." About three weeks later, the judge signed an order setting the case for trial. However, at no time did he sign an order of reinstatement. 813 S.W.2d at 549-550. After the court lost plenary jurisdiction to alter its order of dismissal, ⁽⁴⁾

it sustained a plea to its jurisdiction and dismissed the case. Id. at 549.

On Hardtke's appeal, the court of appeals reversed the dismissal. It found the trial court's docket entry was in writing, sufficiently specific, and signed with the initials of the trial judge. As such, it was entitled to the dignity of an order vacating the dismissal order. 813 S.W.2d at 550. The court further noted the trial court's sua sponte dismissal order was a mistake that the court immediately tried to correct, and "t[h]e law should encourage, not frustrate, reasonable steps to correct routine administrative errors that inevitably occur in even the most well-managed courts." Id.

Importantly, the court in Hardtke found it necessary to distinguish several cases holding a docket entry insufficient to set aside a judgment, including Emerald Oaks Hotel/Conference Center, Inc. v. Zardenetta, 776 S.W.2d 577, 578 (Tex. 1989) (orig. proceeding). It found the holding of Emerald Oaks, that a docket entry and oral order could not be used in lieu of a written order to reinstate a case dismissed for want of prosecution, was compelled by Rule 165a(3), while in the case before it "no motion to reinstate was filed" and it "was not a proceeding conducted under rule 165a(3)." 813 S.W.2d at 551.

Like Emerald Oaks, the case at bar is a proceeding conducted under Rule 165a, and we find Emerald Oaks controls disposition of Wallingford's second issue. In Emerald Oaks the suit against the defendant was dismissed for want of prosecution. The plaintiff timely filed a motion to reinstate, and the court's docket sheet contained an entry indicating it granted the motion the same day it was filed. The court orally directed counsel for the plaintiff to prepare an order of reinstatement and submit it for signing, but a written order was not signed until 126 days after the date of the order of dismissal. 776 S.W.2d at 578.

In the defendant's mandamus proceeding seeking enforcement of the dismissal, the supreme court noted Rule 165a(3)'s provisions that a motion to reinstate is overruled by operation of law if for any reason it is not decided by signed written order within 75 days after the judgment is signed. Thereafter, the court retains plenary power and jurisdiction over the cause for another 30 days. 776 S.W.2d 578. Because no signed written order of reinstatement was filed within 105 days of the date of dismissal the judgment of dismissal was final. Id. The court stated, "A trial court's oral pronouncement and docket entry reinstating a cause is not an acceptable substitute for the written order required by rule." Id., citing Clark and Co. v. Giles, 639 S.W.2d 449, 450 (Tex. 1982, orig. proceeding) (a case under Rule of Civil Procedure 329b).

Here, Wallingford's case was dismissed for want of prosecution on Trinity's motion based in part on Rule 165a, and Wallingford timely filed a motion to reinstate expressly based on that rule. ⁽⁵⁾ We find the trial court's oral pronouncement on the record at the hearing on the motion to reinstate, its printed docket entry, Wallingford's submission of a proposed order, and the conduct of the parties following the hearing are not a substitute for the rule's requirement of a signed written order. Tex. R. Civ. P. 165a(3) (motion for reinstatement deemed overruled by operation of law if for any reason motion not decided by signed written order within time prescribed); Emerald Oaks, 776 S.W.2d at 578; see Intercity Mgt. Corp. v. Chambers, 820 S.W.2d 811, 813 (Tex.App.-Houston [1^st Dist.] 1991) (orig. proceeding) (applying Emerald Oaks rather than Hardtke in case under Rule 165a). Wallingford's second issue is overruled.

Issue Three - Is Rule 165a unconstitutional?

In her third issue, Wallingford asserts that Rule 165a violates the open courts, and due course of law provisions of the Texas Constitution, Tex. Const. art. I, § 13; art. I, § 19; and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. ⁽⁶⁾ The essence of Wallingford's complaint under this issue is that Rule 165a placed an onerous burden on her by assigning her attorney primary responsibility for timely obtaining the trial court's signature on an order of reinstatement. She concludes her argument with an assertion that the order of dismissal denied her the due process guarantees of notice and the opportunity to be heard apart from having to meet "intolerable burdens."

We begin with Wallingford's open courts argument. Here she claims Rule 165a unconstitutionally denies her access to court for presentation of her workers' compensation case because emanating from the rule is the impossible condition that her attorney must diligently pursue the trial judge to timely obtain a signed written order.

In relevant part, art. I, § 13 of the Texas Constitution provides:

All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.

The Texas Supreme Court has determined that this provision includes at least three separate constitutional guarantees: (1) courts must actually be operating and available; (2) the legislature cannot impede access to the courts through unreasonable financial barriers; and (3) meaningful remedies must be afforded, "so that the legislature may not abrogate the right to assert a well-established common law cause of action unless the reason for its action outweighs the litigants' constitutional right of redress." Texas Ass'n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 448 (Tex. 1993). Wallingford's argument invokes the third guarantee.

A litigant challenging a statute on the third open courts guarantee must satisfy two criteria:

First, it must be shown that the litigant has a cognizable common law cause of action that is being restricted. Second, the litigant must show that the restriction is unreasonable or arbitrary when balanced against the purpose and basis of the statute.

Lucas v. United States, 757 S.W.2d 687, 690 (Tex. 1988), quoting Sax v. Votteler, 648 S.W.2d 661, 666 (Tex. 1983).

The workers' compensation system is a product of statute and was unknown at common law. See Lambert v. Affiliated Foods, Inc., 20 S.W.3d 1, 5 (Tex.App.-Amarillo 1999), aff'd, 44 S.W.3d 544 (Tex. 2001). Accordingly, Wallingford is unable to satisfy the first criteria of an open courts claim. But even had she possessed a cognizable common law cause of action restricted by Rule 165a, her open courts claim could not withstand the balancing requirement of the second prong of the analysis.

The supreme court adopted Rule 165a in 1973 to ameliorate the effect of a judge's dismissal of an action for neglect and non-action. Rizk v. Mayad, 603 S.W.2d 773, 776 (Tex. 1980). Rule 165a(3) provides a method of reinstatement for cases dismissed under the rule or by the inherent power of the court to control its docket. Tex. R. Civ. P. 165a(4). Taking advantage of this reinstatement mechanism, Wallingford was able to present her grounds for reinstatement by motion, evidence, and presentation at a hearing. Given the purpose of Rule 165a(3), its requirement of a written order of reinstatement signed within 105 days of dismissal does not create an unreasonable or arbitrary burden for a litigant availing herself of the rule's opportunity for reinstatement.

Wallingford's assertions that the dismissal order was issued in violation of her procedural due process rights, whether alleged under the U.S. or Texas Constitutions, ⁽⁷⁾ are adequately addressed by noting that she timely filed a lengthy verified motion to reinstate, and fully participated in a hearing conducted while the trial court retained plenary control of its dismissal order. Any due process concerns founded on lack of notice were thus cured. See Finlan, 205 S.W.3d at 655-56 (party filed motion to reinstate after dismissal, due process satisfied); Jimenez v. Transwestern Prop. Co., 999 S.W.2d 125, 129 (Tex. App.-Houston [14th Dist.] 1999, no pet.) (due process requirements satisfied by hearing on motion to reinstate). Wallingford's third issue is overruled.

Trinity's Motion for Damages for Frivolous Appeal

By separate motion, Trinity requested damages against Wallingford for filing a frivolous appeal. Tex. R. App. P. 45. Wallingford filed a reply and we have carried the matter with the case.

Rule 45 authorizes us to award each prevailing party just damages if we determine that the appeal was frivolous. Tex. R. App. P. 45. Whether to do so, however, lies within our discretion. Rios v. Northwestern Steel & Wire Co., 974 S.W.2d 932, 936 (Tex.App.-Houston [14th Dist.] 1998, no pet.). In exercising this discretion, we may not consider any matter that does not appear in the record, briefs, or other papers filed in the court of appeals, Rule 45, and we must act with prudence, caution, and careful deliberation. Rios, 974 S.W.2d at 936. We view the record from the advocate's standpoint to determine whether there were reasonable grounds to believe that the trial court's judgment was reversible. Safeway Managing Gen. Agency v. Cooper, 952 S.W.2d 861, 870 (Tex.App.-Amarillo 1997, no writ). Considering the record as a whole, we will not characterize Wallingford's appeal as frivolous.

Conclusion

Trinity's motion for damages for a frivolous appeal is denied. The trial court's order recognizing its lack of jurisdiction and dismissing the case is affirmed.

James T. Campbell

Justice

1. The former system of workers' compensation, Texas Revised Civil Statutes Annotated articles 8306 et seq., was adopted in 1914 and repealed in 1991. The act continues to govern claims for pre-1991 injuries. See Acts 1989, 71st Leg., 2nd C.S., Ch. 1, § 17.18(c), (d).

2. See Villarreal v. San Antonio Truck & Equipment, 994 S.W.2d 628, 630 (Tex. 1999) (setting out two sources of trial court's authority to dismiss a case for want of prosecution).

3. The record reflects a factual dispute concerning Trinity's notice to Wallingford of the motion to dismiss. Trinity's motion to dismiss contained a certificate of service by certified mail and Trinity argued in its response to Wallingford's motion to reinstate that the attached affidavit of its attorney's paralegal proved service upon Wallingford's counsel by certified mail. Trinity could not produce a green postal receipt card signed by Wallingford's counsel. Rule 21a sets up a presumption that when a required notice is placed in the United States mail in a properly addressed, postage prepaid wrapper, it was duly received by the addressee. See Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex. 1987). However, the presumption of service vanishes upon introduction of evidence that notice was not received. Id.

Wallingford also asserts that the trial court clerk failed to send notice of the dismissal hearing as required by Rule 165a. See Tex. R. Civ. P. 165a(1).

4. The appellate court noted the record did not show that Hardtke ever knew the case was under consideration for dismissal on the day the court dismissed it, or for reinstatement the following day. 813 S.W.2d at 550 n.2.

5. There is no procedural distinction between cases dismissed under a court's inherent power or according to Rule 165a. See Tex. R. Civ. P. 165a(4).

6. Wallingford also mentions the trial by jury provision of the Texas Constitution, Tex. Const. art. I, § 15, and the Equal Protection Clause of the Fourteenth Amendment, but presents no argument discussing their applicability. We do not address these theories. See Tex. R. App. P. 38.1(h).

7. In claims of procedural due process, the Texas Supreme Court has found no meaningful distinction between Texas' protection of due course of law and the federal constitution's guarantee of due process. University of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995); see U.S. Const. amend. XIV § 1; Tex. Const. art. 1 § 19.