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Hyer v. Texas Department of Criminal Justice12/2/1999
This is an appeal from the trial court's dismissal for want of prosecution. We affirm.
FACTS
Appellant, Joe Hyer, filed his original petition on February 27, 1996 pursuant to the Texas Tort Claims Act, alleging that while removing chickens with a dolly from a kitchen freezer, he slipped and fell, causing the dolly to fall on him, breaking his leg. At the time of the alleged incident, appellant was an inmate housed at the Ellis I Unit. Appellees timely filed their answer.
Appellant conducted some discovery and also amended his petition on May 31, 1996; however, appellant did not prosecute his case further. On November 12, 1998, after 29 months of inactivity, appellees filed a motion to dismiss for want of prosecution. The motion alleged the case was outside the judicial timetables established for prosecuting a jury trial. Appellant timely responded by opposing the motion and requesting the trial court to appoint counsel for him. After a hearing, the trial court dismissed the case for want of prosecution on November 23, 1998. Appellant filed a motion to reinstate, which was denied after a hearing on January 28, 1999.
DISCUSSION
In issues one and two, appellant asserts the trial court erred in granting appellees' motion to dismiss for want of prosecution and by denying appellant's motion to reinstate. In issue three, appellant asserts the trial court erred in denying his motion for appointment of counsel.
Dismissal for Want of Prosecution and Motion to Reinstate
The standard of review of a trial court's dismissal for want of prosecution and denial of a motion to reinstate is abuse of discretion. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997) (dismissal for want of prosecution); Smith v. Babcock & Wilcox Const. Co., 913 S.W.2d 467, 467 (Tex. 1995) (denial of motion to reinstate); Nawas v. R & S Vending, 920 S.W.2d 734, 737 (Tex. App.-Houston [1st Dist.] 1996, no writ) (dismissal for want of prosecution and denial of motion to reinstate). An abuse of discretion occurs if the trial court acts without reference to any guiding rules or principles or acts in an arbitrary or unreasonable manner. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985); Nawas, 920 S.W.2d at 737. 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) by the court's inherent power to dismiss when the case has not been prosecuted with due diligence. Tex. R. Civ. P. 165a(1), (2); City of Houston v. Thomas, 838 S.W.2d 296, 297 (Tex. App.-Houston [1st Dist.] 1992, no writ) (citing Veteran's Land Bd. v. Williams, 543 S.W.2d 89, 90 (Tex. 1976)).
Here, the record does not reflect the grounds relied on by the trial court in dismissing appellant's case, and as a result, we may affirm on the basis of any legal theory supported by the record. The issue is whether the record supports the trial court's dismissal of appellant's case because there was no valid excuse for it not being disposed of within the applicable time standards, or because, as a general matter, appellant failed to use due diligence in the prosecution of his case.
In determining whether a case has been prosecuted with due diligence, 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. State v. Rotello, 671 S.W.2d 507, 508-509 (Tex. 1984); Thomas, 838 S.W.2d at 297; NASA I Business Ctr. v. American Nat'l Ins. Co.
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