dissenting.
I respectfully dissent. In her sixth point of error, appellant argues that the trial court erred in refusing to direct a verdict or to render judgment in favor of appellant because, as a matter of law, the notice of intent to dismiss the suit was inadequate to comply with the requirements of due process and there was failure to give notice of the dismissal to appellant. I agree.
A trial court derives its authority or discretion to dismiss a case for want of prosecution from Rule 165a of the Texas Rules of Civil Procedure or from its inherent power to dismiss a suit for failure to prosecute with due diligence. Davis v. Laredo Diesel, Inc., 611 S.W.2d 943, 946 (Tex. App.—Waco 1981, writ ref d n.r.e.).
Appellant’s complaint that she did not receive notice of the final judgment is undisputed. Appellant does not deny receiving a notice of the court’s intention to dismiss a block of unparticularized cases, but alleges that the notice violated due process because it did not specify the particular cases subject to dismissal. Because appellant’s case was not mentioned with particularity, appellant in effect received no notice and the notice violated due process.
Regardless of whether the case is dismissed pursuant to Rule 165a or the court’s inherent power, “[a]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections.” Peralta v. Heights Medical Center, 485 U.S. 80, 84, 108 S.Ct. 896, 899, 99 L.Ed.2d 75 (1988). The right of a party to be heard in a contested case is fundamental and failure to give adequate notice of the trial setting constitutes lack of due process. Williams v. Holley, 653 S.W.2d 639, 640, (Tex.App.—Waco 1983, writ ref’d n.r.e.). A fundamental element of due process is adequate and reasonable notice of proceedings. Langdale v. Villamil, 813 S.W.2d 187 (Tex.App.—Houston [14th Dist.] 1991, no writ). Because due process is a legal question and not a fact question for the trier of fact, this court must determine if the district clerk’s notice of intent to dismiss constituted due process.
This is a death penalty case; the ultimate sanction for failure to prosecute a case with diligence is dismissal. In the instant case, the trial court did not follow the guidelines set forth in TransAmerican v. Powell, 811 S.W.2d 913 (Tex.1991). Trans-American v. Powell involved sanctions for discovery abuse. However, the Trans-American v. Powell guidelines have been applied when a death penalty sanction is imposed by the trial court for reasons other than discovery abuse.
In Kutch v. Del Mar College, appellee specially excepted to appellant’s petition. After conducting a hearing, the trial court sustained appellee’s exceptions and set a specific date by which appellant was to amend her original petition. Appellant failed to amend her original petition by the due date and the trial court dismissed her petition with prejudice. In reversing the trial court, the court of appeals held that although appellant’s failure to amend her petition by the required date was not a discovery abuse, the standards set forth in TransAmerican v. Powell should apply because the trial court imposed a death penalty sanction. Kutch v. Del Mar College, 831 S.W.2d 506 (Tex.App. — Corpus Christi 1992, no writ). “The TransAmerican principles of review of striking a party’s pleadings as discovery sanctions apply equally to sanctions for violation of pretrial orders.” Lassiter v. Shavor, 824 S.W.2d 667 (Tex. App.—Dallas 1992, no writ). The court in TransAmerican v. Powell (quoting Societe Internationale v. Rogers, 357 U.S. 197, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958)), said:
There are constitutional limitations upon the power of courts, even in aid of their own valid processes, to dismiss an action without affording a party the opportunity for a hearing on the merits of his cause.
TransAmerican, 811 S.W.2d at 918.
*893The Texas Supreme Court has said the “trial court must at least attempt to determine whether the offensive conduct is attributable to counsel only, or to the party only, or to both.” Id. at 917. Obviously, if Lowe’s attorney did not know the case had been dismissed appellant could not have known; however, she is the one being punished by being deprived of her day in court.
The majority believes it would have been relatively easy for appellant’s counsel to examine the lists posted on the court house bulletin boards and determine that the case was subject to dismissal. Rule 165a, however, makes it the duty of the district clerk to notify the attorney of record of the court’s intention to dismiss “a case” at a dismissal hearing.
Posting a list of cases is not mentioned in Rule 165a. Posting a list of cases is nothing more than a warning that something bad is about to happen to an unnamed innocent litigant. The majority holds that, because appellant’s attorney filed a motion to retain, he had notice and there was a mistake made in his office. But, would this mistake or accident have occurred if he had received a notice that advised him of the style and case number to be dismissed? Every day appellate courts affirm cases in which people have been held liable for creating situations that caused an accident. The majority’s holding today is certain to create situations where there will be more “accidental” dismissals to the detriment of innocent citizens.
Rule 165a was written for the specific purpose of preventing these accidental dismissals. The rule provides many safeguards to protect a litigant whose case is wrongfully dismissed, depriving the litigant of his or her day in court. Each of these safeguards is undermined if the initial notice of intent to dismiss is not adequate.
Rule 165a pertains to the dismissal of a specific case and not to the posting of a list of cases. The rule begins “a case” and in four other places in the first paragraph alone, the words “the case” appear. The specific language of Rule 165 provides that:
A case may be dismissed.... Notice of the court’s intention to dismiss ... shall be sent by the clerk to each attorney of record, ... whose address is shown on the docket or in the papers on file,....
Tex.R.Civ.P. 165a(l). Rule 165a should not be interpreted to provide that posting a list of cases on the court house walls is proper notice to the attorney or litigant.
In State v. Rotello, the case was dismissed pursuant to local rule 11-1 of the district courts of Brazos County. The court, in its opinion, made no mention of Rule 165a. State v. Rotello, 671 S.W.2d 507 (Tex.1984). The Brazos County local district court rules have changed since the Rotello decision, and therefore, State v. Rotello is not on point.
In the instant case, the local court rules governing notice of intent to dismiss provided that cases would be dismissed pursuant to Tex.R.Civ.P. 165a and local rule 7. I take judicial notice of the local rules. Langdale, 813 S.W.2d at 189-190. The district clerk’s office sent the notice of intent to dismiss on April 12, 1990. The applicable local rules had been in effect since February 1, 1990 and there was no local rule 7; therefore, the case was dismissed pursuant to Tex.R.Civ.P. 165a. That rule provides in pertinent part:
A case may be dismissed for want of prosecution on failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice....
Tex.R.Civ.P. 165a (emphasis added).
The rule does not provide for dismissal of cases unless the party fails to appear for a hearing or trial. This court has previously held that a lawsuit can not be dismissed pursuant to Rule 165a for failure to appear at a docket call because a docket call is not a hearing or trial. Degen v. General Coatings, Inc., 705 S.W.2d 734 (Tex.App.— Houston [14th Dist.] 1986, no writ). The district clerk’s notice informing attorneys of where or how to obtain a list of cases subject to dismissal is not adequate notice of a hearing or trial. The notice mailed to appellant’s attorney with no reference to case style or number was not fair notice *894under the circumstance. See Davis v. Laredo Diesel, Inc., 611 S.W.2d 943, 946-947 (Tex.App. — Waco 1981, writ ref’d n.r.e.).
The posting of a list of cases to be dismissed may be an expedient way for the court to clear its docket. However, when this expediency is at the expense of litigants, depriving them of their day in court for a trial on the merits, the method should not be accepted.
Because the notice of intent to dismiss did not apprise appellant’s attorney of the pendency of the dismissal action for this specific case, thereby affording appellant the opportunity to present her objections, I would hold that the notice of intent to dismiss sent by the district clerk’s office did not comply with either Rule 166a or with the requirements of due process.
I would grant appellant’s sixth point of error and reverse and remand.