REVERSE and REMAND; and Opinion Filed May 6, 2013.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-00253-CV
DEJUAN AVERY, Appellant
V.
MARILYN AVERY, Appellee
On Appeal from the 255th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-11-08545
MEMORANDUM OPINION
Before Justices Moseley, O’Neill, and Lewis
Opinion by Justice O’Neill
While incarcerated, appellant Dejuan Avery filed for divorce. The trial court dismissed
his petition for want of prosecution. In a single issue, appellant argues the trial court abused its
discretion by dismissing his case for want of prosecution despite his diligent efforts to prosecute
his case. We reverse and remand for further proceedings.
Background
Appellant filed his original petition for divorce on May 11, 2011. At the time, appellant
was a state prisoner confined at the George J. Beto Facility of the Texas Department of Criminal
Justice Correctional Institutions Division. Because of his incarceration and indigency, he also
filed a motion for appointment of counsel. The trial court later sent a letter informing him the
law did not allow for the appointment of an attorney in this type of case.
On May 17, 2011, appellant received notice from the court that the mailing address for
the respondent was incomplete; therefore, service of process could not be completed. On May
25, 2011, appellant filed a letter apologizing for the omission and provided the respondent’s
complete address. He also requested notice confirming service on respondent.
The record contains the officer’s return showing that on June 9, 2011 citation was
“unexecuted by U.S. certified mail restricted delivery return receipt received unclaimed.”
Nothing in the record indicates the trial court informed appellant regarding the failure in service.
Rather, appellant sent the court letters on June 13, 2011, June 27, 2011 and August 12, 2011
again inquiring into the issuance of service. He reminded the court he did not have the means to
contact the office directly and tendered “this letter for such purpose so that I may prosecute and
resolve this matter that is presently before the court.” He further stated the information requested
was to determine other avenues available to him to serve the respondent, if necessary. If service
had not been accomplished than he would seek assistance in serving the respondent through
publication or if she had been served but did not file a response, he would move for a default
judgment.
The trial court entered an order of dismissal for want of prosecution on December 7,
2011, after less than seven months on the docket. This appeal followed.
Standard of Review and Applicable Law
A trial court has authority to dismiss for want of prosecution under Texas Rule of Civil
Procedure 165(a) on “failure of any party seeking affirmative relief to appear for any hearing or
trial on which the party had notice,” or when a case is “not disposed of within the time standards
promulgated by the Supreme Court. . . .” TEX. R. CIV. P. 165(a)(1)-(2). In addition, the common
law vests the trial court with the inherent power to dismiss independently of the rules of
procedure when a plaintiff fails to prosecute his case with due diligence. Villarreal v. San
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Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999). We review a dismissal for want of
prosecution under an abuse of discretion standard. In re Marriage of Buster, 115 S.W.3d 141,
144 (Tex. App.—Texarkana 2003, no pet.).
Although a pro se litigant is held to the same standards as a licensed attorney as far as
knowledge of the rules and procedures, the level of reasonable diligence for prison inmates is
somewhat lower than that for litigants who are free and represented by counsel. Id. Inmates
cannot personally appear unless the court orders it, and if the inmates are pro se, their ability to
participate in the activities designed to bring their cases to trial is seriously limited. Id.
Appellant relies on In re Marriage of Buster to support his position that he diligently
prosecuted his case; therefore, the trial court abused its discretion in dismissing it for want of
prosecution. In that case, the pro se inmate filed for divorce and (1) asked for the right to appear
personally or proceed through alternate means; (2) asked for the trial court to appoint him an
attorney so he could complete service; (3) asked for permission to proceed in forma pauperis;
and (4) repeatedly asked for assistance in adjudicating his divorce. He filed requests with the
court inquiring into the status of his case and seeking “proper due process procedures from the
court.” Id. at 143. In one letter he asked the clerk to “please respond to this letter and give me
an answer to . . . what can I do to get this done?” Id. None of the motions or requests were acted
on by the court. Instead, the court dismissed the case for want of prosecution. Id.
The court of appeals determined “Buster did everything he could reasonably do to
diligently prosecute his case.” Id. at 144–45. It further noted that “there was a complete
breakdown in communication between the trial court and Buster, and because of Buster’s status
as an indigent and an inmate, he could not reasonably remedy the situation.” Id. at 145.
Based on the facts before us, we conclude Buster is persuasive. Appellant similarly filed
an affidavit of indigency and sought appointment of an attorney to help him finalize his divorce.
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He wrote six letters to the clerk and the trial court between May and October inquiring into the
status of his case and quickly notified the court of the respondent’s address when he learned it
was incomplete in the original petition. He further stated he needed to know whether the
respondent had been served so he could either try to serve her through publication or move for
default if she failed to answer. As in Buster, the trial court did not respond to any of his requests
except to send a letter informing him the law did not allow the appointment of counsel.
While we acknowledge appellant did not request to appear before the court either in
person or through alternative means to pursue his petition, we do not find this fact alone to be
determinative of whether he diligently prosecuted his case. Under these circumstances, we
conclude the trial court abused its discretion by dismissing appellant’s case for want of
prosecution. We sustain appellant’s sole issue. We reverse and remand for further proceedings.
/Michael J. O'Neill/
MICHAEL J. O'NEILL
JUSTICE
120253F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DEJUAN AVERY, Appellant On Appeal from the 255th Judicial District
Court, Dallas County, Texas
No. 05-12-00253-CV V. Trial Court Cause No. DF-11-08545.
Opinion delivered by Justice O’Neill,
MARILYN AVERY, Appellee Justices Moseley and Lewis participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and REMANDED to the trial court for further proceedings consistent with this
opinion.
It is ORDERED that appellant DEJUAN AVERY recover his costs of this appeal from
appellee MARILYN AVERY.
Judgment entered this 6th day of May, 2013.
/Michael J. O'Neill/
MICHAEL J. O'NEILL
JUSTICE
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