William Espinoza Pena v. David W. McDowell, Lennis R. Nichols, Elwin E. Hogan, Stacy Johnson, Tracie L. Shirey and Raymond E. Thompson

NO. 12-08-00407-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS
WILLIAM ESPINOZA PENA, ' APPEAL FROM THE 369TH
APPELLANT

V. ' JUDICIAL DISTRICT COURT OF

DAVID W. MCDOWELL, LENNIS R. NICHOLS,
ELWIN E. HOGAN, STACY JOHNSON,
TRACIE L. SHIREY AND ' ANDERSON COUNTY, TEXAS
RAYMOND E. THOMPSON, APPELLEES
MEMORANDUM OPINION
William Espinoza Pena, while an inmate in the Texas Department of Criminal
Justice (ATDCJ@), proceeding pro se, filed an in forma pauperis suit against David W.
McDowell, Lennis R. Nichols, Elwin E. Hogan, Stacy Johnson, Tracie L. Shirey, and
Raymond E. Thompson (collectively “Appellees”). In three issues, Pena contends that
the trial court improperly dismissed his suit with prejudice pursuant to Texas Civil
Practice and Remedies Code, chapter 14. We affirm.

BACKGROUND
On November 18, 2004, Pena, while incarcerated, filed an in forma pauperis civil
suit against Appellees. By his suit, Pena sought damages from Appellees for violations
of his civil rights. Specifically, Pena alleged that, on or about August 26, 2002, he was
injured as a result of his being forced to move heavy boxes containing his personal
property during an unwarranted cell transfer.1 Johnson did not answer or otherwise make

1
Pena previously filed a lawsuit based on this same occurrence within the two year statute of
limitations. The trial court dismissed the suit with prejudice pursuant to chapter 14. We reformed the trial
court’s judgment to reflect a dismissal “without prejudice” and, as reformed, affirmed the judgment. See
Pena v. McDowell, No. 12-03-00141-CV, 2004 WL 2423546, at *4 (Tex. App.-Tyler Oct. 29, 2004, no
pet.) (mem. op).

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an appearance. According to Pena, such coerced labor arose from a conspiracy by
Appellees to retaliate against him for his prolific practice as a “writ-writer/jailhouse-
lawyer.” The trial court dismissed Pena’s suit pursuant to Texas Civil Practice and
Remedies Code, chapter 14, and Pena appealed. By opinion delivered March 30, 2007,
we affirmed the trial court’s dismissal in part, reversed the trial court’s dismissal in part,
and remanded the case to the trial court for further proceedings.2
On June 7, 2007, Pena filed a motion for a “Spears” 3 hearing. On October 19,
2007, Pena was released from prison on parole. Thereafter, Pena was hospitalized from
October 22, 2007 until April 18, 2008. On April 30, 2008, Pena filed a motion for
setting.
On July 31, 2008, the trial court conducted a status hearing. At the hearing, the
trial court questioned Pena concerning what efforts he had made in the past year to
determine why citation had not been issued. Pena responded that he had been
hospitalized for the past year and a half, but had “kept abreast with the courts” and “[let
the court] know [his] change of address and why [he] was out of circulation.” At the
conclusion of the hearing, the trial court ordered that citation issue.
Citation was returned dated August 1, 2008 for each appellee except Johnson,
who, according to the return, was no longer a TDCJ employee. Subsequently, Appellees 4
answered and moved to dismiss pursuant to Chapter 14. Specifically, Appellees argued
that Pena had not exercised diligence in serving them with process. Pena filed a
response, but failed to specifically address Appellees’ argument that he had not exercised
diligence in serving them other than to aver that Appellees’ argument was “without
grounds as a matter of fact.” On September 25, 2008, the trial court dismissed Pena’s
suit with prejudice as “frivolous” pursuant to chapter 14. This appeal followed.

2
See Pena v. McDowell, 12-05-00116-CV, 2007 WL 949614, at *10 (Tex. App.–Tyler Mar. 30,
2007, no pet.) (mem. op.). The mandate pertaining to our March 30 order issued on May 29, 2007.
3
See Spears v. McCotter, 766 F.2d 179, 181-82 (5th Cir.1985) (establishing courtroom hearing as
substitute for motion for more definite statement in pro se cases), overruled on other grounds, Neitzke v.
Williams, 490 U.S. 319, 324, 109 S. Ct. 1827, 1831, 104 L. Ed. 2d 338 (1989).
4
Johnson did not answer or otherwise make an appearance.

2
 SERVICE OF PROCESS, LIMITATIONS, AND EXERCISE OF DILIGENCE
In his first, second, and third issues, Pena argues that the trial court erred in
dismissing his lawsuit.5 We review the trial court=s dismissal of an in forma pauperis suit
under an abuse of discretion standard. Hickson v. Moya, 926 S.W.2d 397, 398 (Tex.
App.BWaco 1996, no writ). A trial court abuses its discretion if it acts arbitrarily,
capriciously, and without reference to any guiding rules or principles. Lentworth v.
Trahan, 981 S.W.2d 720, 722 (Tex. App.BHouston [1st Dist.] 1998, no pet.). The trial
courts are given broad discretion to determine whether a case should be dismissed
because (1) prisoners have a strong incentive to litigate; (2) the government bears the cost
of an in forma pauperis suit; (3) sanctions are not effective; and (4) the dismissal of
unmeritorious claims accrues to the benefit of state officials, courts, and meritorious
claimants. See Montana v. Patterson, 894 S.W.2d 812, 814B15 (Tex. App.BTyler 1994,
no writ). We will affirm a dismissal if it was proper under any legal theory. See
Johnson v. Lynaugh, 796 S.W.2d 705, 706B07 (Tex. 1990); Birdo v. Ament, 814 S.W.2d
808, 810 (Tex. App.BWaco 1991, writ denied).
“Service of citation” is a term that describes the formal process by which a
plaintiff gives a defendant notice that it has been sued. See Texas Nat. Res. Conserv.
Comm’n v. Sierra Club, 70 S.W.3d 709, 813 (Tex. 2002). The purpose of the citation is
to give the trial court jurisdiction over the defendant, to satisfy due process requirements,
and to give the defendant the opportunity to appear and defend. See Cockrell v. Estevez,
737 S.W.2d 138, 140 (Tex. App.–San Antonio 1987, no writ).
When a suit is timely filed, as in the case at hand, but the defendant is not served
until after the limitations period expires, the date of service relates back to the date of
filing if the plaintiff exercised diligence in effecting service. Weaver v. E-Z Mart Stores,
Inc., 942 S.W.2d 167, 169 (Tex. App.–Texarkana 1997, no pet.). A plea of limitation is
an affirmative defense. Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex.
1988). Whether a plaintiff’s claim is barred by limitations depends on whether the
plaintiff interrupted the running of limitations. See Murray v. San Jacinto Agency, 800
S.W.2d 826, 829–30 (Tex. 1990). Generally, the mere filing of a suit does not interrupt

5
We have construed Pena’s issues liberally in the interest of justice. See, e.g., Newman v. Castro,
No. 12-04-00051-CV, 2005 WL 1243418, at *1 n.1 (Tex. App.–Tyler May 25, 2005, pet dism’d w.o.j.).

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the running of limitations unless due diligence is exercised in the issuance and service of
citation. Id. at 830.
It is the responsibility of the party requesting service to ensure that service is
properly accomplished. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex.
1994); Aguilar v. Stone, 901 S.W.2d 955, 955 (Tex. App.–Houston [1st Dist.] 1995, no
writ). It is the attorney’s duty to ascertain the status and completion of citation. See
Weaver, 942 S.W.2d at 169. Here, because Pena had no attorney, it was his duty. Id.
Pena was a pro se litigant during the time period that service of citation was
delayed. A party proceeding pro se must comply with all applicable procedural rules.
Id.; see also Mansfield State Bank v. Cohn, 573 S.W.2d 181, 185 (Tex.1978); Clark v.
Yarbrough, 900 S.W.2d 406, 409 (Tex. App.–Texarkana 1995, writ denied). A pro se
litigant is held to the same standard that applies to a licensed attorney. Weaver, 942
S.W.2d at 169; Brown v. Tex. Employment Comm’n, 801 S.W.2d 5, 8 (Tex. App.–
Houston [14th Dist.] 1990, writ denied). No allowance is to be made for the fact that a
plaintiff is not a lawyer. Weaver, 942 S.W.2d at 169; Bailey v. Rogers, 631 S.W.2d 784,
786 (Tex. App.–Austin 1982, no writ).
In the case at hand, a period of approximately fifteen months elapsed from the
date of our mandate pertaining to the remand of Pena’s lawsuit to the trial court until the
date Appellees were served with process. The record further reflects that, during that
time period, Pena was hospitalized. However, despite his hospitalization, Pena sought to
obtain discovery from the office of the Attorney General and notified the court of
changes of address. Yet, there is no indication from the record that Pena made any effort
to have Appellees served with process. There is further no indication in the record that,
during the three months following his release from the hospital, Pena made any effort to
investigate why service had not been accomplished.
Based on our review of the record, we conclude that Pena cannot demonstrate that
he exercised diligence in having Appellees served with process. Other courts have held
that periods of inactivity far shorter than that in the case before us constituted a lack of
diligence as a matter of law. See, e.g., Meza v. Hooker Contracting Co., 104 S.W.3d
111, 114 (Tex. App.–San Antonio 2003, no pet.) (eight months); Webster v. Thomas, 5
S.W.3d 287, 290 (Tex. App.–Houston [14th Dist.] 1999, no pet.) (four months); Weaver,

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942 S.W.2d at 169–70 (nine months); Hansler v. Mainka, 807 S.W.2d 3, 5 (Tex. App.–
Corpus Christi 1991, no writ) (five months). As such, it follows that Pena’s filing of suit
did not interrupt the period of limitations.6 See Murray, 800 S.W.2d at 830. Therefore,
we hold that the trial court did not abuse its discretion in dismissing Pena’s suit with
prejudice.7 Pena’s first, second, and third issues are overruled.

DISPOSITION
Having overruled Pena’s first, second, and third issues, we affirm the trial court’s
judgment.

JAMES T. WORTHEN
Chief Justice

Opinion delivered October 30, 2009.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)

6
See TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (Vernon Supp. 2009) (two year limitations
period for personal injury suits); see also Ali v. Higgs¸892 F.2d 438, 439 (5th Cir. 1990) (federal courts
borrow forum state’s general personal injury limitations period for section 1983 civil rights action).
7
Because the limitations period has expired, Pena cannot remedy the error. Therefore, the
dismissal with prejudice is appropriate. See Garrett v. Williams, 250 S.W.3d 154, 160 (Tex. App–Fort
Worth 2008, no pet.).

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