nathaniel-jones-iii-v-houston-police-deparment-harris-county-sheriffs ( 2013 )

Affirmed and Memorandum Opinion filed February 12, 2013.
In The
Fourteenth Court of Appeals
NO. 14-11-00756-CV
NO. 14-11-00757-CV
NO. 14-11-00759-CV
NATHANIEL JONES III, Appellant
V.
HOUSTON POLICE DEPARTMENT, HARRIS COUNTY SHERIFF’S
DEPARTMENT, TEXAS DEPARTMENT OF PUBLIC SAFETY, AND THE
HARRIS COUNTY DISTRICT ATTORNEY, Appellees
On Appeal from the 133rd District Court
Harris County, Texas
Trial Court Cause Nos. 2010-50804, 2010-50601, and 2010-50603
MEMORANDUM OPINION
In each of these appeals, the underlying suit is a request for expunction. In
each case, the trial court signed an order dismissing the case for want of
prosecution. Appellant has filed a brief in each appeal, asserting the trial court
abused its discretion in dismissing his suits because no notice was given of the trial
court’s intention to dismiss. See Tex. R. Civ. P. 165a. We requested a
supplemental clerk’s record containing any such notices and were informed they
do not exist in the trial court case files.
The orders of dismissal were signed on August 15, 2011 (Nos. 14-11-00756-
CV and 14-11-00757-CV) and August 16, 2011 (No. 14-11-00759-CV). In each
case, the notice of appeal, acknowledging the order of dismissal, was filed on
August 30, 2011.
Texas trial courts must give adequate notice before entering an order
dismissing a litigant's suit for want of prosecution. See Tex. R. Civ. P. 165a(1).
(“Notice of the court's intention to dismiss and the date and place of the dismissal
hearing shall be sent by the clerk to each attorney of record....”); and Villarreal v.
San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex.1999).
Appellant argues he was not given notice of the trial court’s intent to dismiss
these cases for want of prosecution, nor was notice filed with the district clerk.
Under Rule of Civil Procedure 165a, the trial court clerk must send notice of the
trial court’s intention to dismiss a case for want of prosecution and the date and
place of the dismissal hearing to each attorney of record, and to each party not
represented by an attorney and whose address is shown on the docket or in the
papers on file. Tex. R. Civ. P. 165a(1). Though the trial court clerk has an
affirmative duty to give this notice, the clerk has no duty to record the mailing of
the required notice. See Tex. R. Civ. P. 165a(1); Ginn v. Forrester, 282 S.W.3d
430, 433 (Tex. 2009); Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 849 (Tex.
2004); General Electric Co. v. Falcon Ridge Apartments, Joint Venture, 811
S.W.2d 942, 943 (Tex. 1991). Thus, the absence of any indication in the trial
court’s record that the clerk sent this notice does not prove that the trial court clerk
failed to send the notice. See Ginn, 282 S.W.3d at 432–33; Alexander, 134 S.W.3d
at 849–50; General Electric Co., 811 S.W.2d at 943–44. Even if the trial court
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clerk certifies that the trial court record contains no notice of the trial court’s
intention to dismiss a case for want of prosecution, this certification is not
sufficient to show that the trial court clerk did not send this notice. 1 See Ginn, 282
S.W.3d at 432–33.
In adjudicating these appeals, this court must presume that the trial court
clerk sent the required notices to Jones; and Jones had the burden to prove in the
trial court that the trial court clerk did not send these notices. See Ginn, 282
S.W.3d at 432–33 (holding plaintiff had burden of proving that trial court clerk did
not send the required Rule 165a notice and that proper means for meeting this
burden is evidence submitted to trial court in a motion for new trial or bill of
review); Welborn-Hosler v. Hosler, 870 S.W.2d 323, 328 (Tex. App.—Houston
[14th Dist.] 1994, no writ) (noting that appellate courts presume trial court acted
after proper notice was provided to the parties and party contending otherwise
must present evidence to this effect in the trial court to obtain reversal on appeal);
Jones v. Texas Dept. of Pub. Safety, 803 S.W.2d 760, 761 (Tex. App.—Houston
[14th Dist.] 1991, no writ) (same as Welborn-Hosler). Jones did not even attempt
to make this showing in the trial court.
Because Jones has not satisfied this burden, and because this court must
presume that the trial court clerk sent the required notices to Jones, the sole issue
presented in each of the appeals lacks merit. Accordingly, in each case we affirm
the judgment of the trial court.
PER CURIAM
Panel consists of Justices Frost, Christopher, and Jamison.
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Though not at issue in the cases under review, the Supreme Court of Texas has also held that an
affidavit in which the trial court clerk affirmatively states that no such notice was sent could not
be considered because that affidavit was not before the trial court when it made the challenged
ruling. See General Electric Co., 811 S.W.2d at 943–44.
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