John Patrick Forward v. Texas Board of Pardons and Parole ( 2009 )

Opinion Issued December 17, 2009

In The

Court of Appeals

For The

First District of Texas  

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NO. 01-07-00914-CR

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JOHN PATRICK FORWARD, Appellant

V.

TEXAS BOARD OF PARDONS AND PAROLES, Appellee

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On Appeal from the 80th District Court

Harris County, Texas

Trial Court Cause No. 2007-16986

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MEMORANDUM OPINION

Appellant, John Patrick Forward, appeals the trial court's order that dismissed for want of prosecution his petition for expunction of records. In two issues, Forward contends the court abused its discretion in dismissing his expunction petition for want of prosecution because the trial court did not give Forward adequate notice that his petition would be dismissed for failure to prosecute his case, and he proved each of the requirements for having his record expunged. We conclude the trial court did not give adequate notice to Forward of its intent to dismiss the case. We, therefore, reverse and remand the case to the trial court. Background

Forward, an inmate litigating pro se, petitioned the trial court for expunction of records related to arrests in five cases. In March 2007, Forward filed an expunction petition. A motion for a bench warrant accompanied his petition, but the bench warrant did not specify any particular date for Forward to be brought to court. The record does not show that the trial court ruled on that motion. On May 17, 2007, the trial court scheduled a hearing on Forward's petition for July 27, 2007. On July 27, Forward failed to appear for the hearing.

The record shows that on September 24, 2007, the trial court generated a "Notice of Disposition Deadline." The notice advised the parties that the expunction matter needed to be set and heard by September 24, 2007, the same day it was generated. On the same day the notice was generated, the trial court dismissed appellant's petition for want of prosecution. In an "Order of Dismissal" dated September 28, 2007, the trial court stated in relevant part,

On this the 24th day of September 2007 at 9:00 a.m. the parties having been duly notified of said dismissal and having failed to appear,

IT IS HEREBY ORDERED that this cause of action be and is hereby DISMISSED FOR WANT OF PROSECUTION.

(emphasis original). This appeal timely followed.Dismissal for Want of Prosecution

In his fist issue, Forward contends the court abused its discretion in dismissing his expunction petition for want of prosecution because the trial court did not give Forward adequate notice that his petition would be dismissed for failure to prosecute his case. Forward asserts, "[He] was not given adequate notice that his case would be dismiss[ed] for want of prosecution because the disposition deadline to have the case set and heard was September 24, 2007, the same date the notice was signed."

A. Applicable Law

A trial court may dismiss for want of prosecution either under its inherent power or under rule 165a of the Texas Rules of Civil Procedure. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999); see Tex. R. Civ. P. 165a. A party must be provided with notice and an opportunity to be heard before a trial court may dismiss a case for want of prosecution under either rule 165a or its inherent power. 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 to each party not represented by an attorney . . . ."); Villarreal, 994 S.W.2d at 630. Failure to provide adequate notice of the trial court's intent to dismiss for want of prosecution is a due process violation and requires reversal. Villarreal, 994 S.W.2d at 630; Donnell v. Spring Sports, Inc., 920 S.W.2d 378, 386 (Tex. App.--Houston [1st Dist.] 1996, writ denied).

We review a trial court's order dismissing a case for want of prosecution for abuse of discretion. Wright v. Tex. Dep't of Crim. Just.-Inst. Div., 137 S.W.3d 693, 696 (Tex. App.--Houston [1st Dist.] 2004, no pet.). A trial court abuses its discretion when it acts without reference to any guiding rules and principles. Id. (citing Cire v. Cummings, 134 S.W.3d 835, 839 (Tex. 2004)).

B. Analysis

The record shows the trial court dismissed Forward's expunction petition for want of prosecution on September 24, 2007, the same day it generated the "Notice of Disposition Deadline."

On November 17, 2009, we ordered the trial court to supplement our record with all documents concerning the date the court sent notice to Forward that his case would be dismissed for want of prosecution. Having examined the entire record before us, the record shows Forward was given notice of the trial court's intent to dismiss on the same day the court dismissed his case. We hold that the "Notice of Disposition Deadline" failed to provide adequate notice, and was a due process violation of law that requires reversal. See Donnell, 920 S.W.2d at 386 (reversing trial court's dismissal for want of prosecution, where court instantaneously dismissed based upon opposing party's verbal motion, because trial court failed to give adequate notice to Donnell before dismissing).

We sustain Forward's first issue. We, therefore, do not reach his second issue in this appeal.

Conclusion

We reverse the order dismissing Forward's expunction petition for want of prosecution and remand the case for further proceedings.

Elsa Alcala

Justice

Panel consists of Justices Keyes, Alcala, and Hanks.