Opinion

John Patrick Forward v. Texas Board of Pardons and Parole

Court
Texas Court of Appeals, 1st District (Houston)
Filed
Dec 17, 2009
Status
Published
Cited by
0 cases
Authority
More cited than 35.3%

The opinion

Opinion Issued December 17, 2009

In The

Court of Appeals

For The

First District of Texas

NO. 01-07-00914-CR

JOHN PATRICK FORWARD, Appellant

V.

TEXAS BOARD OF PARDONS AND PAROLES, Appellee

On Appeal from the 80th District Court

Harris County, Texas

Trial Court Cause No. 2007-16986

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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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