Skip navigation
× You have 2 more free articles available this month. Subscribe today.

Dismissal of Prisoner's Divorce Petition Is Abuse of Discretion

Dismissal of Prisoner's Divorce Petition
Is Abuse of Discretion

A Texas state court of appeals has reversed the dismissal for want of prosecution of a Texas prisoner's divorce action. Joe Lee Buster, a Texas state prisoner, filed a suit for divorce. He was unable to locate his wife, so he could not serve her. He was also unable to obtain service by publication, despite repeated attempts to do so. After eighteen months on the district court's docket, the court dismissed the suit for want of prosecution. Buster appealed.

The court of appeals held that Buster had done all he could reasonably do to prosecute the case. He had filed numerous requests for assistance in serving process. He had requested appointment of counsel, as authorized by Texas Government Code § 24.016, to assist him in service of process. He had asked for a bench warrant to appear at the hearing on dismissal, or, in the alternative, to be allowed to appear via affidavit or other alternative means. "Seemingly there was a complete breakdown in communication between the trial court and Buster, and because of Buster's status as an indigent and an inmate, he could not reasonably remedy the situation." Thus, the court of appeals concluded, the trial court abused its discretion when it dismissed Buster's petition for want of prosecution. The dismissal was reversed and the case returned to the trial court for further proceedings. See: In Re Marriage of Buster, 155 S.W.3d 141 (Tex.App.-Texarkana 2003).

As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal case

In re Marriage of Buster

There is no absolute right for an inmate to appear in court in person in a civil case. Armstrong v. Randle, 881 S.W.2d 53, 57 (Tex.App.-Texarkana 1994, writ denied). In considering an inmate's right to appear, courts generally follow a balancing approach, weighing the preservation of the correctional system's integrity against the prisoner's right of access, with a goal of achieving a balance that is fundamentally fair. Ex parte Guajardo, 70 S.W.3d 202, 205 (Tex.App.-San Antonio 2001, no pet.). Should the trial court find that the pro se plaintiff inmate in a civil suit is not entitled to leave prison and appear personally in court, the inmate should be allowed to proceed by affidavit, deposition, telephone, or other effective means. In re Marriage of Daugherty, 42 S.W.3d 331 (Tex.App.-Texarkana 2001, no pet.); Byrd v. Attorney Gen. of Tex., Crime Victims Comp. Div., 877 S.W.2d 566, 569 (Tex.App.-Beaumont 1994, no writ).

A trial court may dismiss a civil suit for want of prosecution when the plaintiff has failed to use reasonable diligence to advance the case on the docket and move it to trial. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d at 630; Dolenz v. Cont'l Nat'l Bank of Fort Worth, 620 S.W.2d 572, 575 (Tex.1981); City of Houston v. Thomas, 838 S.W.2d 296, 297 (Tex.App.-Houston [1st Dist.] 1992, no. pet.). Although a pro se litigant is held to the same standards as a licensed attorney as far as knowledge of the rules of practice and procedure are concerned, Mansfield State Bank v. Cohn, 573 S.W.2d 181, 185 (Tex.1978), the level of reasonable diligence for prison inmates is somewhat lower than that for litigants who are free and represented by counsel. Inmates cannot personally appear unless the court orders the prison officials to allow it, and if the inmates are pro se, their ability to participate in the activities designed to bring their cases to trial is seriously limited.

It appears to us that Buster did everything he could reasonably do to diligently*145 prosecute his case. He asked for the right to appear personally and to proceed by affidavit or other alternative means of giving the required testimony if he could not be present personally. He asked the trial court for the appointment of an attorney, so he could complete service on the respondent.FN2 He asked for permission to proceed in forma pauperis, and he repeatedly asked for assistance in getting his divorce adjudicated. As noted earlier, the trial court did not act on any of these requests. Seemingly, there was a complete breakdown in communication between the trial court and Buster, and because of Buster's status as an indigent and an inmate, he could not reasonably remedy the situation. Under all these circumstances, we conclude that the trial court abused its discretion when it dismissed Buster's case for want of prosecution. Compare Clark v. Yarbrough, 900 S.W.2d 406; Fedco Oil Co. v. Pride Refin. Co., 787 S.W.2d 572 (Tex.App.-Houston [1st Dist.] 1990, no writ).
FN2. In a civil case, the trial court may appoint counsel for a party if the party makes an affidavit that he or she is too poor to employ counsel to attend to the case. TEX. GOV'T CODE ANN. § 24.016 (Vernon 1988); Coleman v. Lynaugh, 934 S.W.2d 837 (Tex.App.-Houston [1st Dist.] 1996, no writ).
The judgment is reversed, and the cause is remanded to the trial court for further proceedings.

Concurring Opinion by Justice CARTER.

I acknowledge the majority opinion correctly applies the current law to the facts presented. I write to suggest that the practical application of these legal requirements is difficult for the trial officials to accomplish and to offer a suggested solution.

When representing themselves in our courts, most citizens are expected to comply with certain rules. They are required to obtain service of process, obtain a trial setting, appear at the stated time to present evidence, and prepare proposed orders for entry even though they do not have legal training. The trial courts of this State cannot act as an advocate for any party appearing in court.
Clearly, incarcerated persons cannot attend court proceedings without intervention by the trial court. Apparently, Buster is now incarcerated miles away from the forum of this case. In this age of technology, a solution to many of these problems would be video conferencing. I would urge the Legislature to consider action which would authorize and fund video access from the state penitentiaries to a trial court in each county where an institution is located. This would solve the very real security problem and expense of travel while allowing the inmates the right to access our courts.