in the Matter of the Marriage of Raul Hilario-Lopez and Sonia Hilario and in the Interest of E.H. and S.H., Minor Children

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-06-00023-CV ______________________________ IN THE MATTER OF THE MARRIAGE OF RAUL HILARIO-LOPEZ AND SONIA HILARIO AND IN THE INTEREST OF E.H. AND S.H., MINOR CHILDREN On Appeal from the 5th Judicial District Court Bowie County, Texas Trial Court No. 04D1168-005 Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION Raul Hilario-Lopez, a citizen of Mexico, was incarcerated in the Federal Correctional Institution in Bowie County when, on August 24, 2004, he filed pro se an original petition for divorce from his wife, Sonia Hilario. After Hilario-Lopez made a remarkably able effort at prosecuting his divorce, detailed below, his case was dismissed for want of prosecution. We reverse the dismissal and remand the case to the trial court for further proceedings. After filing his original petition, which detailed his inmate status and his impending release and deportation, Hilario-Lopez filed, on October 29, 2004, his wife's waiver of citation. On January 18, 2005, he filed a formal request for final disposition of the case, again noting his inmate status. To this request for disposition, he attached an agreed Final Decree of Divorce and an agreed Standard Possession Order, both of which had been signed by both parties. On March 9, 2005, he wrote the district clerk asking for information on the status of his case and asking that, if the case had not yet been set for a hearing, a setting be made. On July 5, 2005, he wrote a similar letter to the district clerk, again inquiring regarding the status of his case and asking for a setting if it had not yet been set. On September 7, 2005, Hilario-Lopez filed a change of address, again noting his previous inmate status, his release from custody, and his deportation to Mexico. The official responses to Hilario-Lopez' actions consisted entirely of the following: (1) A clerk's "Notice of Dismissal for Want of Prosecution" filed October 4, 2005, setting a hearing for October 24, 2005. (2) A clerk's "Notice of Dismissal for Want of Prosecution" filed October 6, 2005, setting a hearing for November 7, 2005. (3) A clerk's "Notice of Dismissal for Want of Prosecution" filed December 7, 2005, setting a hearing for January 2, "2005" [sic]. (4) A clerk's "Notice of Dismissal for Want of Prosecution" filed December 19, 2005, setting a hearing for January 3, 2006. (5) An "Order of Dismissal" filed January 4, 2006, dismissing the case simply "for want of prosecution" without further explanation. Hilario-Lopez has timely appealed, asserting the dismissal was error and additionally denied him due process of law. Because we agree the dismissal was error, we reverse the dismissal. Under Rule 165a of the Texas Rules of Civil Procedure, a trial court may dismiss a case for two reasons: the failure of a party to appear at a hearing or trial, or for noncompliance with time standards. Because the trial court did not specify the reason why it dismissed the case, we will review the dismissal under both reasons. The dismissal order, not specifying the reason for dismissal, will be affirmed on appeal if any proper ground supports the dismissal. In re Marriage of Buster, 115 S.W.3d 141, 142–45 (Tex. App.—Texarkana 2003, no pet.); In re Marriage of Seals, 83 S.W.3d 870, 873 (Tex. App.—Texarkana 2002, no pet.); Shook v. Gilmore & Tatge Mfg. Co., 951 S.W.2d 294, 296 (Tex. App.—Waco 1997, pet. denied). A dismissal for want of prosecution is reviewed for an abuse of discretion. Seals, 83 S.W.3d at 873; see Coleman v. Lynaugh, 934 S.W.2d 837, 838 (Tex. App.—Houston [1st Dist.] 1996, no writ). A trial court abuses its discretion if it acts without reference to any guiding rules or principles or if, under all the circumstances of the particular case, the trial court's action was arbitrary or unreasonable. Koslow's v. Mackie, 796 S.W.2d 700, 704 (Tex. 1990); Seals, 83 S.W.3d at 873–74. A trial court may consider the entire history of the case, including: (1) how long the case was on file, (2) how active the case had been, (3) whether a trial setting was requested, and (4) the existence of reasonable excuse for delay. Seals, 83 S.W.3d at 874; cf. King v. Holland, 884 S.W.2d 231, 237 (Tex. App.—Corpus Christi 1994, writ denied); City of Houston v. Malone, 828 S.W.2d 567, 568 (Tex. App.—Houston [14th Dist.] 1992, no writ). At the time the notices of the trial court's intent to dismiss were sent, no hearing had been set in the case, so Hilario-Lopez, before January 3, 2006, had never failed to appear. While Hilario-Lopez did not appear at the January 3, 2006, hearing, he had previously sent the trial court correspondence, which twice requested a trial setting, and pleadings, which informed the trial court of his incarceration and requested disposition of the case without a hearing or, in the alternative, for disposition through a telephonic hearing. By that correspondence and pleading, Hilario-Lopez informed the trial court of his inability to attend the dismissal hearing and to show good cause for his failure to appear at the hearing. To the extent the trial court dismissed the case based on Hilario-Lopez' failure to appear at the hearing, the trial court abused its discretion. The second way a trial court may dismiss a case under Rule 165a of the Texas Rules of Civil Procedure is for failure of a party to comply with the time standards set by the Texas Supreme Court. Rule 165a (2) states, "Any case not disposed of within time standards promulgated by the Supreme Court under its Administrative Rules may be placed on a dismissal docket." Tex. R. Civ. P. 165a(2). Rule 6 of the Texas Rules of Judicial Administration promulgated by the Texas Supreme Court provides that: [J]udges of the county in which cases are filed should, so far as reasonably possible, ensure that all cases are brought to trial or final disposition in conformity with the following time standards: . . . . Within 6 months from appearance date or within 6 months from the expiration of the waiting period provided by the Family Code where such is required, whichever is later. Tex. R. Jud. Admin. 6(c)(1), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. F app. (Vernon 2005). The trial court dismissed this case January 4, 2006, just over sixteen months after the original petition had been filed, and just over fourteen months after Mrs. Hilario's appearance and waiver of citation had been filed. Although Hilario-Lopez made no formal request for a trial setting during the first four months after filing his petition, he filed a formal request for case disposition January 18, 2005, less than five months into the case and less than two months after Mrs. Hilario's appearance. Then, on March 9, 2005, and again on July 5, 2005, he followed up with letters to the district clerk requesting a status report and a trial setting, if no setting had been made by that time. He advised the court of his impending release from incarceration and the fact that, once released, he would be deported to Mexico. Once he was released and deported, he reported, on September 7, 2005, an address change. Rule 6 of the Rules of Judicial Administration requires judges to ensure that cases are brought to trial or disposition. Further, the trial court may, on the court's own motion and with reasonable notice to the parties, set contested cases for trial. Noncontested cases may be tried or disposed of at any time whether set or not, and may be set at any time for any other time. See Tex. R. Civ. P. 245. After an agreed decree of divorce and an agreed possession order were filed along with a request by Hilario-Lopez that the matter be set for trial, all within two months after Mrs. Hilario's appearance—and after two subsequent written requests within the next six months for a trial setting—it was an abuse of discretion to dismiss this case for noncompliance with the time standards. Both parties want the divorce. To dismiss this case, requiring the parties to file it again, is a waste of judicial and economic resources. The record clearly shows good cause why the trial court should not have dismissed this case for want of prosecution. See Boulden, 133 S.W.3d at 886–87; Buster, 115 S.W.3d at 142–45; Seals, 83 S.W.3d at 873–75. We reverse the trial court's order of dismissal and remand the case for further proceedings. Josh R. Morriss, III Chief Justice Date Submitted: May 9, 2006 Date Decided: June 16, 2006