Antonio Sepeda v. State ( 2015 )

Affirmed and Memorandum Opinion filed July 16, 2015.
In The
Fourteenth Court of Appeals
NO. 14-14-00443-CV
ANTONIO SEPEDA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 122nd District Court
Galveston County, Texas
Trial Court Cause No. 14-CV-0014
MEMORANDUM OPINION
Appellant Antonio Sepeda asserts that the trial court erred in dismissing for
want of prosecution his petition for expunction of his criminal records. In four
issues, Sepeda contends the trial court erred by (1) dismissing his petition for want
of prosecution, (2) refusing to provide requested findings of fact and conclusions
of law, (3) failing to hold the required hearing on his motion to reinstate, and
(4) denying his constitutional right to access the courts of this state. We affirm.
BACKGROUND
In January 2014, Sepeda, a pro se inmate incarcerated in the Institutional
Division of the Texas Department of Criminal Justice, filed petitions for
expunction of criminal records pursuant to Texas Code of Criminal Procedure
article 55.01. Our record contains only one petition for expunction on Sepeda’s
arrest for assault of a family member, although his cover letter indicates that he
filed multiple petitions. According to this petition, the charges on this
misdemeanor arrest had been previously dismissed. Sepeda also filed a declaration
of inability to pay costs. The Galveston County District Clerk immediately
responded to Sepeda’s petitions, providing a letter that explained:
The above referenced causes of action were filed on January 6,
2014. Your cover letter did not request any setting to be scheduled by
the respective courts, nor did you request the clerk of court to issue
service if any, when a hearing has been scheduled.
If you request a hearing on each of the above matters please
make sure you file such request in EACH case independently as they
are separate causes of action. Also, you will need to provide service
addresses for the agencies listed as Data Services and AIS. You must
file any service request in each case respectively. You must provide
the clerk of court with 12 copies of each of the 4 petitions you filed.
A copy is required for attachment to any Notice of Hearing the clerk
is requested to issue
On January 21, Sepeda responded to this notification by requesting free
service because of his indigent status and asked the district clerk “to present the
following Motions to the Trial Court for a rulings [sic]. (Petitioner’s motion to
attend hearing by telephone conference call or other effective means.)” The
attached motion to attend hearing provides, “Petitioner asks the court, should it
determine that his presence is necessary at the hearing for expungment [sic], that
the court allow him to attend hearing by telephone conference call, or any other
effective means.” Sepeda also filed a “Motion and Notice of Motion for Judicial
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Notice of Facts,” in which he requested an “Order of enforcement of rule that
appl[ies] to inmates being indigent,” seeking free copies and service to all parties
of interest. Finally, Sepeda filed a motion to consolidate his petitions for
expunction under a single cause number. No ruling on any of these motions is
contained in our record.
Nearly three months later, on April 14, the trial court signed an “Order of
Setting Hearing on Dismissal Docket.” The trial court ordered “a hearing on
[Sepeda’s] cause for Dismissal for Want of Prosecution” set on May 14. This
order stated that Sepeda’s cause would be dismissed for want of prosecution and
required that all parties appear. The order stated that Sepeda should show the court
why the case should be retained. In response, Sepeda filed a request to retain his
case on the trial court’s docket, asserting that there was good cause to retain his
case because (a) he had filed his petition pro se and in forma pauperis, along with
the appropriate certification regarding his indigent status, (b) the court did not
contest his indigency, and (c) he requested that the district clerk “waive” the cost
of copies and “notify all parties in this matter.” He further urged that he had been
diligent in pursuing matters with the court, that his petition should be liberally
construed, that the misdemeanor indictments he was seeking to have expunged had
been dismissed, and that he, as a prisoner, has a fundamental right to access the
courts. In his prayer for relief, Sepeda asked the court to grant him “an extension
to provide the extra copies in order for the Clerk to fullfill [sic] the serve [sic]
process on interested parties” and to retain his case. Nowhere in his response did
Sepeda request to attend the dismissal hearing, whether by telephone or otherwise.
On May 20, the trial court signed a dismissal order, which stated that the
case had been placed on the dismissal docket, no party appeared at the May 14
hearing, and the case was dismissed for want of prosecution. On June 9, Sepeda
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filed a motion to reinstate,1 a request for findings of fact and conclusions of law, a
motion to attend any hearing by telephone, 2 and a notice of appeal. No findings
and conclusions were signed by the trial court. This appeal followed.
ANALYSIS
A. Dismissal for Want of Prosecution
In his first issue, Sepeda asserts that the trial court erred by dismissing his
expunction petition for want of prosecution.3 We will reverse a trial court’s
dismissal for want of prosecution only if the court clearly abused its discretion.
MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex.1997) (per curiam). A trial court’s
power to dismiss a case for want of prosecution stems from two sources: (1) Texas
Rule of Civil Procedure 165a; and (2) the trial court’s inherent authority to manage
its own docket. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630
(Tex. 1999); Gantt v. Getz, No. 14–10–00003–CV, 2011 WL 1849085, *4 (Tex.
App.—Houston [14th Dist.] May 12, 2011, no pet.) (mem. op.). As is relevant
here, under Rule 165a, a court may dismiss a case for the “failure of any party
seeking affirmative relief to appear for any hearing or trial of which the party had
1
Although this motion is entitled “Plaintiff’s Verified Motion to Reinstate,” it was not
properly verified. See Tex. Civ. Prac. & Rem. Code Ann. § 132.001(d) (providing requisites for
inmate’s unsworn declaration) and discussion below.
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Our record does not contain any rulings on these motions.
3
Sepeda asserts in his brief that he filed his expunction petition, requested that notice be
issued as required by law, and requested that the trial court conduct a hearing 30 days from the
filing. However, nothing in our record supports his assertions that he requested the trial court to
notify anyone or conduct a hearing on his expunction petitions. Instead, in his petition, Sepeda
suggested that the offense for which he had been arrested had been dismissed because the
complainant had dropped the charges and that he “believed” he was entitled to expunction of this
arrest record because it did not result in a final conviction. He listed several officials or agencies
that might have records of this offense and asked the court to order all these officials or agencies
to expunge the records pertaining to the charge.
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notice.” Tex. R. Civ. P. 165a(1); see also Villarreal, 994 S.W.2d at 630; Gantt,
2011 WL 1849085, at *4.
Texas Code of Criminal Procedure article 55.02 requires that the trial court
set a hearing on an expunction petition and give “reasonable notice of the hearing”
to officials, agencies, or governmental entities named in the petition. See Tex.
Code Crim. Pro. Ann. art. 55.02, § 2. But on appeal, Sepeda does not urge that the
trial court erred by failing to set his expunction petition for a hearing, nor did he
make that argument below. We may not reverse a judgment in a civil case based
on unassigned error. See Pat Baker Co. v. Wilson, 971 S.W.2d 447, 450 (Tex.
1998) (per curiam); Izaguirre v. Rivera, No. 14-12-00081-CV, 2012 WL 2814131,
at *2 (Tex. App.—Houston [14th Dist.] July 10, 2012, no pet.) (mem. op.). Thus,
to the extent the trial court erred by placing Sepeda’s case on the dismissal docket,
Sepeda has failed to assign error, and we may not consider this error as a ground
for reversing the trial court’s judgment.
Instead, Sepeda complains that the trial court dismissed his case for want of
prosecution without conducting an oral hearing: “Before dismissing a case for
want of prosecution A COURT SHOULD CONDUCT A ORAL HEARING AND
GIVE THE PLAINTIFF THE OPPORTUNITY to present evidence.” But “[a]ll
that Rule 165a(1) requires is notice of intent to dismiss and of a date, time, and
place for the hearing.” Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 852 (Tex.
2004). The setting of Sepeda’s case on the trial court’s dismissal docket met these
requirements. And in response to his case being set on the dismissal docket,
Sepeda did not request to attend the dismissal hearing via telephone, bench
warrant, or other means. See, e.g., In re D.D.J., 136 S.W.3d 305, 314 (Tex.
App.—Fort Worth 2004, no pet.) (holding that trial court abused its discretion by
failing to consider the appellant’s request to participate at trial by alternative
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means). Instead, as noted above, Sepeda filed a motion to retain in which he
asserted there was “good cause” to retain his case, with no reference to article
55.02 whatsoever or any indication that the trial court was required to set a hearing
on his expunction petition.4
In short, the notice the trial court sent to Sepeda provided that his cause was
being set on the dismissal docket and that a hearing would be held on May 14,
2014, at 9:00 a.m. The court notified Sepeda that his case “will be dismissed for
Want of Prosecution” and that “[a]ll parties must appear.” And it is undisputed
that Sepeda had proper notice of the May 14 dismissal hearing and failed to appear.
To the extent the trial court may have erred by placing Sepeda’s case on the
dismissal docket, nothing in our record indicates that Sepeda informed the trial
court of this error, nor has Sepeda complained of this error on appeal. See Tex. R.
App. P. 33.1(a) (generally, to present a complaint for appellate review, record must
show that the complaint was made to the trial court by timely request, objection, or
motion stating with sufficient specificity the grounds for relief sought and that the
trial court ruled on the complaint, either expressly or implicitly); Izaguirre, 2012
WL 2814131, at *2 (appellate court may not reverse civil judgment on unassigned
error).
Under these circumstances, we conclude that the trial court did not abuse its
discretion in dismissing Sepeda’s case for the failure to appear. See Tex. R. Civ. P.
4
As discussed supra, in response to the district clerk’s notification that Sepeda had not
set any of his expunction petitions for a hearing, Sepeda requested that he be permitted to attend
the expunction hearing by telephone conference call or “other effective means” and asked that
the clerk provide free copies of his petitions for service on the responding parties. He made no
reference to article 55.02’s requirements. This response was filed well before the trial court
placed Sepeda’s case on its dismissal docket, and nothing in our record indicates that Sepeda
requested that he be permitted to attend the dismissal hearing via alternate means.
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165a(1); Villareal, 994 S.W.2d at 630; Gantt, 2011 WL 1849085, at *4. We
overrule Sepeda’s first issue.
B. Findings of Fact and Conclusions of Law
In issue two, Sepeda urges that the trial court abused its discretion by failing
to sign findings of fact and conclusions of law. In his brief, Sepeda asserts that he
filed a notice of past due findings and conclusions. However, although the record
reflects that Sepeda filed a request for findings and conclusions, it does not contain
any notice of past due findings of fact and conclusions of law. See Tex. R. Civ. P.
297. Because our record does not reflect that Sepeda filed a notice of past due
findings and conclusions, Sepeda has waived the right to complain about the trial
court’s failure to file such findings and conclusions. See Haley v. Harris Cnty.,
No. 14-11-01051-CV, 2012 WL 4955257, at *4 (Tex. App.—Houston [14th Dist.]
Oct. 18, 2012, no pet.) (mem. op) (citing Curtis v. Comm’n for Lawyer Discipline,
20 S.W.3d 227, 232 (Tex. App.—Houston [14th Dist.] 2000, no pet.)). We thus
overrule Sepeda’s second issue.
C. Motion to Reinstate
In his third issue, Sepeda contends the trial court erred by failing to hold “the
required hearing” on his motion to reinstate. A motion for reinstatement is the
only remedy available to a party whose case has been dismissed for want of
prosecution. Watson v. Clark, No, 14-14-00031-CV, 2015 WL 780563, at *1 (Tex.
App.—Houston [14th Dist.] Feb. 24, 2015, no pet.) (citing Sierra Club v. Tex.
Comm’n on Envtl. Quality, 188 S.W.3d 220, 222 (Tex. App.—Austin 2005, no
pet.)). A motion to reinstate must “set forth the grounds therefor and be verified by
the movant or his attorney. . .” Tex. R. Civ. P. 165a(3). Sections 132.001 and
132.002 of the Texas Civil Practice & Remedies Code permit inmates to file
unsworn declarations that follow a prescribed form. See Tex. Civ. Prac. & Rem.
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Code Ann. § 132.002(c), (e). The unsworn inmate declaration must (1) be in
writing, (2) include a jurat in a particular form, 5 and (3) be subscribed by the
person making the declaration as true under penalty of perjury. See id.
Sepeda’s motion for reinstatement was not verified or otherwise
accompanied by a proper unsworn declaration. The trial court, therefore, did not
abuse its discretion by not considering his motion to reinstate. Cf. McConnell v.
May, 800 S.W.2d 194, 194 (Tex. 1991) (per curiam) (orig. proceeding) (trial court
abused its discretion when it granted unverified motion to reinstate). Accordingly,
we overrule Sepeda’s third issue.
D. Access to Courts
Finally, in Sepeda’s fourth issue, he asserts the trial court abused its
discretion by denying his constitutional right to access the courts. It appears in this
issue that Sepeda urges that the trial court was required to (1) hold a hearing before
5
An unsworn declaration made by an inmate must include a jurat in substantially the
following form:
“My name is (First) (Middle) (Last) my date of birth is ____________, and
my inmate identifying number, if any, is ________________. I am presently
incarcerated in (Corrections unit name) in (City) , (County) , (State) (Zip
Code) . I declare under penalty of perjury that the foregoing is true and correct.
Executed on the day of (Month) , (Year) .
Declarant”
Tex. Civ. Prac. & Rem. Code Ann. § 132.001(e).
Sepeda included some of this requisite information at the beginning of one of the
documents attached to his motion to reinstate, but he failed to sign that declaration. Instead, he
signed the following statement: “I Antonio Sepeda TDCJ #469585 certify and declare that issues
and statements are part to this suit, Sepeda states he was diligence in prosecuting his suit. [A]ll
the same are true and correct. Executed on 03 day of June 2014.” This declaration does not
meet the requirements for an unsworn declaration under Chapter 132.
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dismissing his case and (2) permit him to attend and present evidence at this
hearing: “Appellant did not recei[]ve an opportunity to be heard nor to present
evidence in his favor that he was diligently in prosecuting his suit, and the trial
court acted arbit[r]arily, unreasonably, or without references to guiding principles.”
But an inmate’s right to access the courts does not entail the right to personally
appear for every proceeding. Ex parte Cephus, 410 S.W.3d 416, 421 (Tex. App.—
Houston [14th Dist.] 2013, no pet.) (citing In re Z.L.T., 124 S.W.3d 163, 164 (Tex.
2003)). And here, as noted above, Sepeda failed to request to appear in person or
by telephone in his motion to retain. Cf. In re Z.L.T., 124 S.W.3d at 166 (“[S]ince
a prisoner has no absolute right to be present in a civil action, it follows that the
prisoner requesting a bench warrant must justify the need for his presence.”). By
failing to move to appear via bench warrant or by telephone, Sepeda did not
“justify the need for his presence” at any hearing. See id. Further, to the extent
that Sepeda urges error in the trial court’s failure to hold a hearing or permit his
attendance on the basis of his unverified motion to reinstate, we have already
determined that the trial court did not abuse its discretion in failing to consider that
motion.
In short, Sepeda failed to make the required showing that his presence was
necessary at any hearing, and the trial court was not “required, on its own, to seek
out the necessary information.” See id. Thus, the trial court did not “abuse its
discretion” by denying Sepeda the right to access the courts in light of the failure
of Sepeda to show that his presence was necessary at any hearing. We overrule
Sepeda’s fourth and final issue.
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CONCLUSION
For the foregoing reasons, we affirm the trial court’s judgment.
/s/ Sharon McCally
Justice
Panel consists of Justices Boyce, McCally, and Donovan.
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