Sawyer, Thomas C. Jr. v. Texas Department of Criminal Justice

Opinion issued August 1, 2002

In The

Court of Appeals

For The

First District of Texas

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NO. 01-98-00990-CV

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THOMAS C. SAWYER, JR., Appellant

V.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE - INSTITUTIONAL DIVISION, RICHARD PUSTKA, JUNE GROOM, JOHN STACE, AND

Z. RAMIREZ, Appellees

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On Appeal from the 12th District Court

Walker County, Texas

Trial Court Cause No. 19,443-C

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O P I N I O N

Appellant, Thomas C. Sawyer, Jr., appeals the trial court's dismissal of his suit for want of prosecution. In four points of error, appellant contends the trial court erred in (1) dismissing his case for want of subject matter jurisdiction or for want of prosecution, (2) transferring venue from Travis County to Walker County, (3) denying Sawyer's motion for costs of litigation, and (4) denying Sawyer's request for records under the Texas Open Records Act. ⁽¹⁾ Appellees, the Texas Department of Criminal Justice - Institutional Division (TDCJ), Richard Pustka, June Groom, John Stace, and Z. Ramirez, contend the appeal should be dismissed for lack of subject matter jurisdiction, or, alternatively, because appellant's notice of appeal was insufficient. We affirm.

Facts

Sawyer is an inmate of the TDCJ's Estelle Unit in Huntsville, Walker County, Texas. His suit is based on the confiscation of 20 postage stamps worth $5.80. On May 7, 1994, Sawyer went to the prison law library. Officer Kennon, the library supervisor, told Sawyer to wait before being seated because he was looking for 14 missing postage stamps. When the missing stamps were not found, the inmates in the library were strip-searched. Prison officials found 20 stamps in Sawyer's wallet. Despite Sawyer's explanation that he had purchased the stamps at the commissary, the stamps were taken from him. At Sawyer's disciplinary hearing, Sawyer presented commissary records showing that he had purchased many stamps during the preceding six months, and he was ultimately found not guilty of stealing the missing stamps. Sawyer petitioned Warden Richard Pustka, TDCJ Regional Director June Groom, and Deputy Director John Stace for the return of his confiscated stamps. Sawyer contends his stamps were never returned.

In August of 1995, Sawyer sued the TDCJ, Pustka, Groom, Stace, and Officer Z. Ramirez in Travis County. Pustka answered and filed a motion to transfer venue from Travis County to Walker County. Over Sawyer's objection, the motion was granted.

On July 27, 1998, the trial court held an evidentiary hearing to determine whether appellees could provide commissary and banking records to Sawyer showing he purchased the confiscated stamps. At the conclusion of the hearing, the trial court dismissed Sawyer's case because his claims failed to meet the minimum amount in controversy requirement. That ruling was not reduced to writing. On August 20, 1998, the trial court entered a final order dismissing Sawyer's case for want of prosecution, not for want of jurisdiction. ⁽²⁾

Motion to Transfer

In his second point of error, Sawyer argues that the Travis County district court abused its discretion when it transferred the case from Travis County to Walker County. We consider the question of venue first because a finding that venue was not proper requires us to reverse the trial court's order. Tex. Civ. Prac. & Rem. Code Ann. §15.064 (Vernon 1986).

Sawyer contends venue was proper in Travis County under sections 15.001, 15.002, 15.014, 15.038, and former section 15.061 of the Texas Civil Practices and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. §§ 15.001, .002 (Vernon Supp. 2002), 15.014, .038, (Vernon 1986), § 15.061 [Act of May 2, 1983, 68th Leg., R.S., ch. 385, § 1, 1983 Tex. Gen. Laws 2119, repealed by Act of May 8, 1995, 74th Leg., R.S., ch. 138, § 10, 1995 Tex. Gen. Laws 981]. We disagree. Section 15.019 is a mandatory venue provision that requires venue for a suit accruing while a plaintiff is confined in a TDCJ facility to be brought in the county where that facility is located, except when the suit is a mandamus action against the head of a department of state government. Tex. Civ. Prac. & Rem. Code Ann. §15.019 (Vernon Supp. 2002). Because Sawyer's immediate suit does not fall within any exception to section 15.019, he was required to file his suit in Walker County.

We overrule Sawyer's second point of error.

Subject Matter Jurisdiction and Notice of Appeal

Appellees argue that the trial court should have dismissed Sawyer's claims for lack of subject matter jurisdiction because the alleged damages did not meet the minimum amount in controversy requirement of $200.01 for a district court. See Tex. Const. art. V, § 8; Tex. Gov't Code Ann. § 24.007 (Vernon 1988); see also Arnold v. West Bend Co., 983 S.W.2d 365, 366 n.1 (Tex. App.--Houston [1st Dist.] 1998, no pet.) (describing effect of changes to Texas Constitution and statutes).

Whether a trial court has subject matter jurisdiction is a question of law and is reviewed de novo. Tex. Dep't of Crim. Justice v. Miller, 48 S.W.3d 201, 204 (Tex. App.--Houston [1st Dist.] 1999), rev'd on other grounds, 51 S.W.3d 583, 585 (Tex. 2001) (holding no subject matter jurisdiction because no statutory waiver of sovereign immunity). A plaintiff bears the burden of alleging facts showing that the trial court has subject matter jurisdiction. Id. at 203. When deciding whether the trial court has jurisdiction, this Court must look solely to the allegations in the petition. Id. We must take the allegations in the petition as true and construe them in favor of the pleader. Id. at 204.

Appellees argue Sawyer's claims do not meet the jurisdictional minimum because the total value of the postage stamps is only $5.80. Sawyer, however, claims damages in the amount of $20,205.80. ⁽³⁾

Construing Sawyer's pleadings in his favor, we hold that the trial court had subject matter jurisdiction over his claims. See Texas Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).

Appellees next argue that Sawyer's notice of appeal was insufficient to perfect his appeal because he did not correctly specify the date of the order from which he appeals. See Tex. R. App. P. 25.1(d)(2) (providing "notice of appeal must state the date of judgment or order appealed from").

At the conclusion of the evidentiary hearing on July 27, 1998, the trial court ruled that Sawyer's case was dismissed because he failed to meet the minimum amount in controversy requirement. That ruling, however, was not reduced to writing. On August 20, 1998, the trial court entered a final order dismissing Sawyer's case for want of prosecution. On August 21, 1998, Sawyer filed a notice of appeal which stated he was appealing the trial court's July 27th oral ruling. Sawyer then filed an amended notice of appeal on September 2, 1998 specifying that he was appealing the trial court's August 20th written order of dismissal.

Because Sawyer amended his notice of appeal more than one year before he filed his brief, we hold that his notice was sufficient. See Tex. R. App. P. 25.1(f) (amending of notice of appeal to correct defect or omission may be filed at any time before appellant's brief filed).

Dismissal for Want of Prosecution

In his first point of error, Sawyer argues that the trial court's dismissal of his case for want of prosecution was improper. We review the court's dismissal for want of prosecution under an abuse of discretion standard. Nawas v. R & S Vending, 920 S.W.2d 734, 737 (Tex. App.--Houston [1st Dist.] 1996, no writ).

A trial court may dismiss a case for want of prosecution (1) when a party fails to appear at a hearing or trial, (2) when the case has not been disposed of within the Supreme Court's time standards, and (3) under the trial court's inherent power to dismiss, when the case has not been prosecuted with due diligence. Tex. R. Civ. P. 165a; City of Houston v. Robinson, 837 S.W.2d 262, 264 (Tex. App.--Houston [1st Dist.] 1992, no writ). When, as here, the record does not contain findings of fact or conclusions of law, and the trial court did not specify the standard of dismissal used, we must affirm on the basis of any legal theory supported by the record. Robinson, 837 S.W.2d at 264. A party must be provided with notice and an opportunity to be heard before a court may dismiss a case for want of prosecution under either Rule 165a or the court's inherent authority. See Tex. R. Civ. P. 165a(1); Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999).

At the July 28, 1998 dismissal hearing, Assistant Attorney General Jean Wong moved to dismiss the case for want of prosecution. Wong informed the trial court that three years had passed from the time Sawyer filed his petition until he filed his first discovery requests, and that she did not believe that Pustka, Groom, Stace, Ramirez, or the TDCJ had been served in those three years. Sawyer stated that he had filed numerous documents with the trial court and had served Pustka, Stace, and Ramirez. However, many of the documents to which Sawyer referred concerned another case. In 1997, Sawyer did write the trial court and ask how to set this case for trial.

The Rules of Judicial Administration provide that civil jury cases should be disposed of within 18 months from the appearance date. Tex. R. Jud. Admin. 6(b), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. F app. (Vernon 1998); Lopez v. Harding, 68 S.W.3d 78, 80 n.1 (Tex. App.--Dallas 2001, no pet.). Civil nonjury cases should be disposed of within 12 months. Tex. R. Jud. Admin. 6(b). In 1995, Sawyer filed a letter with the Travis County District Clerk's Office which indicated that he had served appellees by mail. See Tex. R. Civ. P. 21a and 106. The record supports this statement in respect to Pustka, who filed an answer and a motion to transfer venue. Based on this date, whether Sawyer's claims were tried to a jury or to the trial court, his claims should have been brought to trial or reached a final disposition more than one year before the trial court entered its final order of dismissal in August 1998. We conclude, based on these facts, that Sawyer has not demonstrated that the trial court abused its discretion in dismissing his claims against Pustka for want of prosecution. See Nawas, 920 S.W.2d at 737.

Sawyer has also not shown that the trial court abused its discretion in dismissing his claims against Stace and Ramirez for want of prosecution. Sawyer told the trial court that he had served Stace and Ramirez. However, he did not indicate any dates of service, nor does the clerk's record include any returns of service. Assuming Sawyer served Stace and Ramirez, he has not shown that his claims against them were brought to trial or reached a final disposition within the time period prescribed by the Supreme Court. Therefore, as with Pustka, Sawyer has not shown the trial court abused its discretion in dismissing his claims as to Stace and Ramirez. Id.

Finally, Sawyer has not shown that the trial court abused its discretion in dismissing his claims against Groom and the TDCJ because he did not use due diligence in prosecuting those claims. See Tex. R. Civ. P. 165a; Robinson, 837 S.W.2d at 264. A court may, when determining whether a plaintiff has exercised due diligence in the prosecution of his case, consider whether a plaintiff provides a valid excuse for its failure to timely serve process on that defendant. A trial court may determine, as a matter of law, that a plaintiff has not exercised due diligence if he does not provide a valid excuse for his failure to timely serve a defendant with process. See Holstein v. Fed. Debt. Mgmt., Inc., 902 S.W.2d 31, 35 (Tex. App.--Houston [1st Dist.] 1995, no writ). Unexplained lapses of time between the filing of suit, issuance of citation, and service may show the plaintiff has, as a matter of law, failed to exercise due diligence. Li v. Univ. of Texas Health Sci. Ctr. at Houston, 984 S.W.2d 647, 652 (Tex. App.--Houston [14th Dist.] 1998, pet. denied).

Here, Sawyer told the trial court that, as of July 1998, he had attempted, without success, to serve Groom by certified mail and that he had not served the TDCJ. Sawyer, however, provided no justification for his inability to obtain service during the more than two years between the time he filed suit and the date of the hearing. We conclude that Sawyer's failure to obtain service is evidence of his lack of due diligence in the prosecution of his claims against Groom and TDCJ. We also hold that Sawyer has, therefore, not demonstrated the trial court abused its discretion. Nawas, 920 S.W.2d at 737.

We overrule Sawyer's first point of error.

Sawyer's Motion for Costs of Litigation and Texas Open Records Act

In his third and fourth points of error, Sawyer argues the trial court abused its discretion when it denied his motion for costs of litigation and when it denied his request for documents under the Texas Open Records Act. ⁽⁴⁾ Sawyer's complaints relate to a previous case which we have already addressed. ⁽⁵⁾ We do not have jurisdiction to reconsider these issues here. See Tex. R. App. P. 25.1(b) (proper notice of appeal invokes our jurisdiction over all parties to trial court's judgment). Sawyer cannot, by perfecting an appeal in the present case, seek enforcement of our previous order directed to a different party.

We overrule Sawyer's third and fourth points of error.

Conclusion

All pending motions are denied.

We affirm the trial court's order.

Davie L. Wilson

Justice

Panel consists of Justices Nuchia, Jennings, and Wilson. ⁽⁶⁾

Do not publish. Tex. R. App. P. 47.4.

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