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Kohoutek v. Texas Department of Criminal Justice5/4/2000
Appellant, George Thomas Kohoutek, appeals the trial court's dismissal of his suit for want of prosecution. We reverse and remand for further proceedings.
Dismissal for Want of Prosecution
In his first, second and fourth points of error, appellant argues the trial court abused its discretion in dismissing his case for want of prosecution.
A trial court has the inherent right to dismiss a suit for want of prosecution, subject to review only upon a clear showing of abuse. Sandstrom v. Magruder, 510 S.W.2d 388, 391 (Tex.Civ.App. - Houston [1st Dist.] 1974, writ ref'd n.r.e.).
In its order dismissing the case, the trial court stated that appellant "failed to prosecute his case with due diligence, City of Houston v. Robinson, 837 S.W.2d 262, 264-265 (Tex.App.-Houston [1st Dist.] 1992, no writ); Bard v. Frank Hall & Co., 767 S.W.2d 839, 843 (Tex.App.-Houston [1st Dist.] 1989, writ denied) . . . ." The Robinson case involves a property tax dispute in which this Court held the trial court may consider the entire history of the case, including the length of time the case was on file, the amount of activity in the case, the request for a trial setting, and the existence of reasonable excuses for delay. Robinson, 837 S.W.2d at 264.
When called upon to determine whether the trial court committed a clear abuse of discretion, we must look to the record in its entirety. Id. at 265. The record before us is quite limited. We have no findings or conclusions from the court below. We have 4½ pages of testimony from the evidentiary hearing conducted on July 20, 1998, and the procedural history can be gleaned from the 21-page clerk's record. TDCJ did not file a brief.
On September 27, 1996, appellant filed the following documents with the Walker County district clerk:
(1) a complaint in which appellant alleged the TDCJ's negligence resulted in a fall from his bunk that injured his legs: Appellant complained that the incident occurred in October of 1994;
(2) a copy of Pauper's Oath, signed and dated by appellant on September 16, 1996; the Oath was not signed by an agent of the TDCJ;
(3) a request for documents addressed to TDCJ: nothing in the record indicates appellant received any response to this request; and
(4) an inmate trust fund record release form authorization signed and witnessed September 16, 1996; appellant stated in a cover letter that he had submitted several of these authorizations to the TDCJ-ID inmate trust fund department, but had received no response.
On June 9, 1998, the trial court sent an order setting an evidentiary hearing to be heard on June 20, 1998. The order sets forth a variety of items to be considered during the hearing, but appellant's diligence in pursuing the case is not one of them. On July 7, 1998, appellant filed a motion to amend his complaint. He added three healthcare providers to the complaint and raised medical malpractice claims against the healthcare providers. In addition, he requested leave to amend his complaint against TDCJ "to allege a premises defect under the Texas Tort Claims Act," and set the hearing to take place during the evidentiary hearing already scheduled for July 20, 1998.
While it is true appellant's lawsuit remained on file for 21 months before dismissal, it appears he did not get any response to his various requests for documents. The final exchange between appellant and the trial court during the evidentiary hearing was significant. The discussion was as follows:
THE COURT: Very well. Because of inactivity in the case, you haven't pursued it be - -
APPELLANT: I've
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