## In the Court of Appeals Second Appel late Di strict of Texas at Fort Worth

____ __ _____________________ No. 02

- 21

- 00224

- CV

___________________________

On App ea l from the 431st District Court Denton County, Texas Trial Court No. 20

- 6089

- 16

Before Kerr , Birdwell , and Bassel , JJ. Memorandum Opinion by Justice Bassel



### I N RE 

### L UKE 

### A DAM 

### S TANTON 

### S R



### .2 MEMORANDUM OP I NION
I. Introduction Appellant Luke Adam Stanto n Sr. filed a petition to take the deposition s of the assistant district attorney who prosecuted him in a prior criminal matter and his t rial
attorney who defende d him in the same matter to investigate pote n t ial cla ims u nder
Texas Rule of Civil Proc edure 2 02. T he trial court sent Stanton a dismissal

- setting

not ice that specified the steps he needed to take or else the case would be dismissed. After Stanton failed to comply with the trial cour t ’ s expre ss requ irements, the trial

court d ismisse d his case for want of prose cution

. Stanton now app eals raisin g four
issues

. In his f our issue s , St anton argues that

• the trial court erred b y dismissing his Rule 202 suit for want of prosecution under Ru le 165a ;

• the tria l court erred by failin g to “ consider and admit [his] discovery request of [a] ltered [ v] ideo [f]ootage evidence and [c] riminal [t]ria l [t

] estimony , the [u]ltra [v] ires [c]laims of [c] ourt [o]ff icials [ ’ ] action[s], [and] the super i or posit ion of good cause for the case to be main tained
on the docket ” ;3 • the tr ial court erred by not expressly ruling on his request for a bench

warrant or , alternativel y, failing to consider his request to appear via telephone or video conference ; and

• t he trial court ’ s dismissal p laced an unrea sonable and arbitr ary burden on
his access to the courts.
W ith regard to Stanton ’ s first two issues, w e hold that the t rial court did not err by
di smissing the case for want of pro secut i on when Stanton did not follow the proced u res out lined i n the court ’ s notice setting the case for dismissal . Wi th regard to
Stanton ’ s third issue, we hold that he failed to carry his burden of proof t o s how that his appearance was necessary . And regardi n g his fo urth issue, we hold that no hearin g

was r e quired due to his failure to meet the prerequ isites in the dis missal notice and
that he failed to carry his burden on his constitutional challenge to Rule 165a

. Accordingly , we affirm. II. Background
I n A u gust 20 12 following a jury trial , Stanton was co nvicted of multiple counts
of sexual crim es . Eight year s later in August 20 20 , Stanton filed a petition under Rule 202 requesting to take the deposition s of Mi chael D icke ns ( a n Assista n t Distri ct Attorney ) and John Robert Moore ( Stant on ’ s trial cou nsel )

. Stanto n s ought Dickens ’ s depos ition t o determ ine whether he had “ committed fraud to the [c]ourt by intentionally submitting [w]itness [es ’ ] perjured/false testimony[] and false [ s ]cient i f

ic4 or tangible evidence, and docum ents pe nding before, during, and after ” St an to n ’ s criminal trial

. Dicke ns filed a n answer in which he general ly deni ed all allegations , raised
affirmative defenses (governmental immunity and official imm u nity), a n d asse rted a plea to the jurisdic tion. Dickens also noted in his answer tha t Stanto n ’ s reque st to take Dickens ’ s de position was improper , arguing that it “ is an improp er recourse for a

c riminal defend ant. ” Stanton filed a docum e nt title d “ Repl y/Obje ctions ” to Dickens ’ s answer and plea to the jurisdiction.
Sta nton filed a motion to recu se J udge Sherry Shipman, and ultimat ely, she voluntarily recused h erself. The case was initially transferred from the 16th D i strict
C o urt to the 367th Dis trict Court ; seven w eeks later , the case was transferred to the
431st District Cour t (the trial court ) as part of a reallocation of the di strict courts ’
caseloads

. While the case was still in the 16th District Cour t , Sta nto n file d a motion for
disc overy and for th e hearing on his petition to be held tele phonically or via vide o conference. After the case was transferred , Stant on filed a motion for an eviden tiary hearing and discovery , arguing that Dickens was refusing to turn over the d esired

v

ideo f o otage d ata
. The trial court sent a “ Notice of Dismissal Setting , ” w hich set the
case on the June 2 5, 2021 do ck et. The “ Notice of Dismissal Setting ” set forth the procedures for Stanton to fo l low if h e wanted his case to be maintained on the
docket:5 THI S SETTING IS BEING MADE PURSUANT TO TIME STAND AR DS FOR DISPOSITION OF CASES BY THE TEXAS SUPREME COURT AND TH E DE N TON COUNTY COURT RULES FOR DISTRICT COURTS
THERE WILL BE NO CONTINUANCES OF T HI S DISMISS AL SETTING!!!
The above

- reference d cause has been s e t on the [c] ourt ’ s docket for dismissal on June 25, 2021, at 3:00 PM, at which time this cause will be DISMIS SED U NLESS :
1 ) Any party seeking affirmative relief has effectuated service of pro c ess upon the opposing party(s). AND 2) T he atto rneys and/or p ro se parties present an agreed

“

Sc hedulin g Or d

er and Di scovery Cont rol Plan ” for entry by the Court, and:
a. t h ey must contact the Court Administrator no later than 10 days prior to the dism i ssal set ting to request a trial date and a pre

- tr ial date (if ap pli cable); b. the Order must contain complete d deadline s and d iscov ery limitations as indicated;
c. the Order m u

st include the client ’ s signature if represented by counsel; and d

. the Order m u

st be su bmitted no later than 7 days prior to the dismissal sett ing

. OR 3) The attorneys and/or pro se partie s appear a t the dismis sal setting and present a proposed “ Sc h

eduli n

g O rder and Discovery Control Pla n ” compliant with 2a.

- c. above. At that time, the [c] o urt will hear any objections of an y other attorney and/or pr o se party to the proposed Order.
The [c ] ourt will onl y accept the “ Scheduling Order and Discovery Control Pla n ” posted on the [c] ourt ’ s website: http: //dentoncounty.com/dept/43 lst

- Forms/Sch eduling

- Order

- an d

Discove r y
- Control

- Plan.pdf

. There will be NO C ONTI NUANCES of this dismissal setting!!!6 After the trial court sent th e dismis sal

- setting notice, Stanton fil e d various
documents . He f irst filed an affidavit in support of his Rule 202 motion. 1 Sta nton then sent a letter in whic h he acknowledged receiving the dismissal

- setting notice and

sou ght the court adminis tr ator ’ s a ssistance in obtaining a case

- summa ry r eport, a cop y of th e local rules , and a co py of the court ’ s s cheduling order and discovery control plan so that he could c omply with the requ irements to avoid dismissal

. 2 Stan ton

not ed in the letter t hat no o rder had been issued b y the trial court for him to appear by telephonic means for the dismissal hearing or alternati vely to appear by bench

warrant. He c oncluded his letter by stating, “ Your assistance in the matter above is greatly appr ec iate d! ” Stanton also filed a motion in opp osition to the t rial court ’ s dismissal

- setting notice , claiming that he c ould not meet the high burden that the trial

c ourt had placed on him in the di smissal

- setting notice because it require d attorneys

a nd pro s e parties to appear at the d ismissa l hearing and to presen t a p roposed
schedul ing order and discovery control plan t hat i s posted on only the court ’ s website

. Stanton further note d that the trial court h ad failed to issue an order for h im to
ap pear for the dismissal hearing by bench warrant or by t ele phonic means and that
the court administrator had “ n eglect ed to respond an d/or assist ” him in receiving the
documents th at he had re quested.

1 It is likely t hat S tanton had no t yet received the dismiss al

- setting noti ce when he maile d this moti on.

2 Stanton does not complain of this on appe al.7 T he trial court thereafter signed an or der dism issing the case for want of
pro secution. S tanton then filed a notice of a ppeal 3 an d a motion for new trial

. The trial court signed an order denyi ng Stanton ’ s motion for new trial. This appeal th en proceeded.
II I. Di sm issal fo r Want of Pro secution Was Proper
Because Stanton ’ s first t hree issues raise related arguments, we will add ress those issues together. In his first issue, Stan ton argues that the trial court erred b y mis construing Rule 202 contrary to Rule 165a

. Within his argument, St ant on does

not exp lain how the trial court mis con strued Rule 202 contrary to Rule 165a,

ment ioni ng in his paragraph about Rule 165a only that “ the U.S. Suprem e Court reverses judgment s when a [s]tate [r]ule o f eviden ce conflict s with the [r]ight to present witnesses and evi dence

. ” In his second issue, Stanto n argues that the tr ial court erred by fai ling to consider and admit his “ discover y request of [a]lter ed [v]ideo [f]ootage evidenc e a nd [c]r i min al [t]rial [t ]estimony, the [u]ltra [v]ires [c] laims o f [c ]ourt [o]fficials [ ’ ] action[s], the superior position of good cause for the case to be
maint aine d on the docket under

. . . Rule 165a( 1)

. ” As for how he complied w ith t he
trial c ourt ’ s dismissal

- setting notice, Stanton contends t hat bec ause his motion for discovery was still pending and unrule d on , that constituted good cause for continuing
the case . But t h e majority of Stanton ’ s arguments in his first an d second issues focus

3 On the docketing st ate ment that Stanton submitted to this court , he li sted on ly a single appellee

— Michael Dickens

. Moo re did not file an a pp ellee ’ s brief.8 on why he should have been permitted to cond uct discovery ( e. g., he argues that the public

- records exc eption to the hearsay rule applies ) , not on what steps he took to
avoi d ha ving his p etition dismissed for want of prosecution.
In hi s third issue, Stanton argues that the trial court erred by not e x pressly ruling on his request for a bench w arrant or , alte r natively , by fail ing to consider ot her

e f f

ect ive me an s of allowing hi m to par ticip a te in the hearing. The tr ial co urt impl iedly
denied Stanton ’ s request for a bench warrant and was not required to allow Stanton to participate in person or via alternative means because Stanton failed to provide the
i nf ormation by which the tria l court could assess the necessity of St an ton ’ s
ap peara nce. A. Rule 165a
A cour t ma y dismiss a case f or want of prosecution e ither und er Rule 165a or under its common

- law inherent authority. Alexander v. Lynda ’ s Boutique , 134 S.W.3d 845, 850 (Tex. 200 4). Under Rule 1 65a (1 ) , a trial court may d is miss a c ase for want of prosecution on t he failure of a par ty s eek ing affirmative relief to appear f or any heari ng or trial of which the party had notice that dismissal could resul t from the
party ’ s failure to appe ar . Tex. R. Civ. P. 165a(1)

. A trial c ou rt may d ismiss under its inherent power when a plaintiff fa ils to pro secute his or her case with due dili gence. Ring er v. K imball , 274 S.W.3d 865, 867 (Tex. App.

— Fort Worth 2 008, no pet.).9 B
. Standar d s of R e vi ew We review for an abuse of dis cretio n a trial court ’ s dismissal for want of
p rosecution and a tr ial cou rt ’ s denial of a bench

- warrant request or a request to app ear by alternat e means . Id. at 867 , 868

. To determine whether a trial c ourt abus ed its
dis cr et ion, we must decide whether the cou rt acted w ithout reference to any guiding
rules or principle s; in o ther words, w e must decide w hether the act was arbitrary o r unreasonable. Id. at 867. Merely because a trial court may decide a ma tter within its
di scre tion differently than a n appellate court woul d in sim ilar circumstances does not demonstrate an abuse o f discr etion. Id.
As the San Antonio Court of Appeals ha s noted regarding dismissals for want of prosecution,
If the orde r dismissing the case does not specify a reason for the d ismissal, w e will a ffirm if any proper ground supports the dismissal. The appellant bears the burden of presenting a record demonstr ating that the trial court abused its discretion in dismissing the case. If the appellant fa ils to bring forth a record o f the dismi ssal hea ring, we indulge every presumption in favor of the trial court ’ s findings and presume that the evidence before the trial court was adequate to support its d ecision. Delgadillo v. Bandera Auto Sales , No. 04

- 1 9

- 00 536

- CV, 2020 WL 2858814 , at *2 (Te x. App.

— San Antonio June 3, 2020, no pet.) (mem. op.) ( cit at ions and quotation marks omitted)

. 4

4 The court re porte r no tified this court that no repo rter ’s record was made of any hearing in th e trial court
.10 C
. An al ysis
The dismissal

- setting notice spec if ically required Stanton to effectuate service of p rocess on the opposing pa rtie s (Dickens and Moore) a nd to either ( 1) present an
agr eed sche duling order and discovery contr ol plan and re qu est a t rial date or (2) appear at the dismissal setting and prese nt a proposed scheduling order and discovery control plan

. For purposes of o u r a nalysis, we assume that Stanton
effectuated service of process on Dickens and Moore ; thus , we focu s on wh ether
Stanton met at least one of the other two requiremen ts that could have prevent ed his case from being dismissed.
1. No Agreed Schedulin g Order and Dis covery Control Plan Presented Here, S tanton d oes not argue that he presented the trial co urt with an agreed scheduling order and discovery control plan , and t he record contains none. 5 Stant on thus failed to co mply with this requirement in the dis miss al notice. The dismissal
notice stated th at the a lternative to providing an agreed scheduling ord er was to appear at t he dismissal setting and to present a propos ed s cheduling order. We
therefore proceed to analyze whether Stanton met both parts of t his alternative requirement.

5 In a document titled “Plaintiff ’s Motion in Opposition to the Court ’s No tice of Dismissal Setting [4/29/2021 ] , ” Stanton ob ject ed on the groun d that it was impossible to ge t an agreed order b ecause Dickens and the D enton Co unty District Attor ney ’s Office had refused f or over ten years to t urn ove r the al leged ly altered video footage evidence as an “ expected tacti c to delay EXPOSIT IO N, o r HIDE, JUDICIAL MISCONDUCT

. ”11 2
. No Appearance and No P roposed Schedulin g Order and Dis covery Con trol P lan
Wi th regard to his failure to appear at trial, Stanton argue s that the trial court erred by not e xpressly ruling on his request for a bench w arrant a nd, alternative ly, by failing to consider his request to appear via telephone or video conference

. This is the

cru x of Stanton ’ s argument on appeal, a s he makes no mention of trying to fulfil l the
trial court ’ s requirement of presenting a proposed s chedu l ing order. Stanton ’ s argument s regard ing the trial court ’ s failure to expressly rule o r consi der his request for a lternate means to appear fail because the implic it denial of the bench

- warr ant request preserved the ruling for review ; there is no thing to s how that the altern ate

means w ere no t considered ; and for both, Stanton failed to show facts t o establish the factors for why his appearance was necessa ry.

a. L aw on Bench

- Warrant Requests We have previously summari zed the law o n b ench

- warrant requests and the
factors to consider:
I t is wel l established that litigants cannot be denied acc ess to the co urts si mply because they are inmates. However, an i nmate does not have an absolute right to appear in person in every court proceedin g. The inmate’s righ t of access to the courts must be weigh ed against the protection of our correctional sys tem’s i ntegrity.
In In re Z.L.T. , the Supreme Court of Texas ide ntified a variety of factors that trial courts should consider when deciding wheth er to grant an inmate ’ s re quest for a bench warrant, includi ng: • the cost an d inconvenience of transporting the pr isoner to the courtroom;12 • the security risk the prisoner presents to the court and public; • whether the prisoner’s claims are substantia l;
• whether the mat t er’s resolution can reasonably be dela yed until the prisone r’s release;
• whether the prisone r can and will offer admissible, noncumulative testimony th at cannot be effectively presented by deposition, telephone, or some other means; • whether the priso n er’s presence is important in judging his demeanor and credib ility;
• whether the tria l is to the court or a jury; and • the prisoner’s probability of success on the merits

. [124 S.W.3d 163 , 165

– 66 (Tex. 2003).]
The Z.L.T. court h eld that a litigant’s stat us as an inmate does not
a lter the litigant’s burden to identify with sufficient sp ecifici ty the grounds for the ruling sought. Accordingly, the tri al co urt has no responsibility to independently inquire into the applicability of the factors listed a b ove. Rather, the burden is on the inm ate to establish his right to relief, and if the inmate fails to present sufficient information to the trial court for the trial court to evaluate the bench [

- ] warrant request under the factors liste d above, the trial c ourt does not abuse its discre tion [by ] denying the request.
R

inger , 274 S.W.3d at 867

– 68 ( footn o tes omitted )

. b. What the Record Shows
Stanton ’s petition request ed a bench warrant or to be allowed to participate via telephone or video conferencing f or a h earing on his petition. A f ter Stanton rec eived
the dismissal

- setting notice, he sent the t rial co urt a letter in which he stated only that13 “[n] o ORDER w [as ] ISSUED by the [c] ourt to appear for the hearing by [t] elephonic [m] eans or alternativ e ly to ap pear by [b] ench [w] arra nt , ” but he did not men tion the
Z.L.T. factors or provide info rmation re lated t o them

. The following mo nth, Stan ton filed a docu ment titled “Plaintiff ’s Motion in Opposition to the Court ’s No tice of
Dismissal Setting [4/29/2021 ] ” in whi ch he invo k ed his r ight to be pres ent in the t rial

c ourt for the hearing o r , altern ative ly , to be allowed to appear by telephon e o r by
video confere nce. Stanton ’ s motion stated that his sole basis for requesting a bench

wa rrant was “ due to the fact th at a n OBJE CTION cannot be made to something that

canno t be seen nor can de meanor and credibility be seen by Stanton to articulate said
inve stigation or determine

- object to any impermiss [i] ble misconduct that could
occur in [c ] ourt, int erfering with inves ti ga tion. ” Stant on also ask ed the trial c ourt “ to

set

- up a hearin g in ac cordance with Chapter 14 (§ 14.008) of the C ivil Practice &
Remed [ies] Code, and/or other applicable [ s] tatutes author izing the [c] ourt to do so ”
because “[c]ourts are required to acc om [m o] date an inc arcerated party to participate
effect ively in a [ c] ourt proceeding

. ” Stanton further stated that

beca use the [c] ourt has not ISSUED an ORDER in accordance with Stanton ’ s prisoner status, TD CJ

- CID will not allow any Offen der/In ma te to mak e hi s own arrangements to appear before the [c] ourt unl ess via [c] ourt ORDER. Thereby, Stanton RE [

- ] URGES the [c] ourt t o set [] up a [ t] elephonic or [v] ideo conference hearing or BENCH WARRANT by notifying TDC J

- CID Michael Unit.14 c . No Abu se of Discretio n S hown by Trial Court ’ s Implicitly Denying Bench

- War ran t Request Here, Stanton ’ s third issue encompasses a cha l lenge to the trial court ’ s f ailure to expressly rule on his bench

- warrant request. As the Texas Suprem e Court stated in
Z.L.T

. ,

Under Rule 33.1(a )(2 ) of the Rules of Appella te Proc edure, in order to present a complaint for appellate revie w, the record must reflect that the trial court “(A) ruled on the request, objection, or motion, either expressly or im plicitly ; or (B) refuse d to rule .

. . and t he complaining party objecte d to th e refusal.” In this case, the trial court proceeded to tr ial without ruling expressly on [appellant ’ s] request for a bench warrant. Consistent w ith Rule 33.1(a)(2) ’ s language, we have previously rec ognized that an impli cit ruling may be sufficient to pre sent an issue for appellate review. See Lenz v. Lenz , 79 S.W.3d 10, 13 (Tex. 2002); see also Salinas v . Rafati , 948 S.W.2d 286, 288 (Tex. 1997); Acord v. Gen. Motors Corp. , 669 S.W.2d 111, 114 (Tex. 1984). By proceeding to trial without issuing th e bench warrant, it is clear that the trial court implicitly deni ed [ap pellant ’ s] request. Therefore, we review the ruling for abuse of discretion.
124 S .W.3d at 165

. Just as in Z .L .T. , the trial court ’ s impl icit denial of St ant on ’ s be nch

- warrant reques t is su ffici ent to present an issue for appe llate review. We
the refore proceed to review the ruling.
Stanton ’ s bench

- warrant request contains no informa tion by which the trial

court c ould ass ess the necessi ty of Stanton ’ s appea ran ce a t the dismissal heari ng . St anton did not mention the Z.L.T. factors in his request, n or did he prov ide a ny factual information in the trial court or in his appellate brief s howing why his interest in appe aring ou tweighed the im pact on the correctio nal system. He based his re quest

o n his need to be present to object (even though the dismis sal hearing wa s not an15 evidentiary hearing because he submi tted no proposed s cheduling o rder to which objections would be raise d ) and s o that he could judge the cr edi bility and demeanor
of th e witne sses (even though that is solely within the factfinder ’ s p rovince). Stanton
th us failed to carry his burden to establish hi s right to a bench war rant
. Because
Stanton failed t o meet h is burden to pr ove his entitlement t o a b ench warrant, we

cannot say th at the trial court abused its discretion by implicitly den ying Stanton ’ s
reques t for a bench warrant. See id. ; In re K.H

. , No. 02

- 19

- 00247

- CV, 2019 WL
624 8557, at *15 (Te x. A p p.

— Fort Worth Nov. 22, 2019, no pet. ) (mem. o p.) ; R inger , 274 S.W.3d at 868.
d
. No Abuse of Discretion Shown by Tria l Court ’ s Implicitly Denying P articipation by A l ternat e Means
S tanton contends i n th e rem ainder of his thir d issue tha t the tr ial court faile d

“ to consider other effective means [for S tan ton ’ s] par ti cipation in [the] hearing. ”
There is no thing in the record to reflect that th e trial court failed to consider Stanton ’ s al te rnative r e quest to participate in the dism issal hearing b y telephone or video conferencing. Instead, it a ppears tha t t he trial court implicitly denied Stanton ’ s

re quest t o participate in the hearing by altern ative means. Cf. Z.L. T. , 124 S .W.3d at
165

. I n determining wh ether the trial cou rt abuse d its discretio n b y den ying
Stanton ’ s request to participate by telepho n e or video conference, we apply the same factors applicab le to a bench

- warrant request. See Delgadillo , 2020 WL 2858814, at * 3

.16 In the trial court and in his appellate brief, Stanton failed to addr ess the Z.L.T. factors

or argue how the specific facts i n t his ca se apply to those factors. Stanton merely

states in hi s brief that the trial court erred by failing “ to consider other effective

mean s [for Stanton ’ s] parti cipation in [the] h earing ” and not es that s ince t he 2020
C OVID

- 19 pand e mic, most c o ur t s an d T DCJ c orrectional facilit ies have be en equipped with Zoo m video conferencing for court a ccess. Stanton further adds that he was unable to appear by altern at e mean s because the t rial court “ f ailed to notif y the TDCJ Facility wh ere [he ] was incarcer ated. ” A s n oted above , the trial court had no independent duty to evaluate S t anton ’ s request to participate by a lternate means and had no duty to notify t he facility or set up a te lephonic or vi deo con ference for
Stant on . Se e id. ; In re Caraway , No. 2

- 05

- 359

- CV, 200 7 WL 1879768, at *3 (Tex. App.

— Fort Worth June 28, 2007, no pet.) (mem. op.) ( noti ng that we had not f ound
any authority “ stating that a court is required to arrange a telephonic conference for an
incarcera ted lit igant or that the entire responsib ility fo r arr anging a te lephonic appearance falls solely on the trial court ” ). 6 Stanton thus failed to show how the trial

6 Stanton cites In re R.C.R. , 230 S.W.3d 42 3, 426

– 2 7 (Tex. A p p.

— Fort Worth 2007, no pet. ) , in which this court held that it was fundamentally un fa ir for the trial court to deny appellant ’ s request for a bench warrant and h is m otion to appear by alternative means and then dismiss his case for want o f prosec ution . That opinion cites Z.L.T. for the proposition that an in mate does not automatically lose the right to
access the courts by virtue of being inca rcerated; but R.C. R. doe s not set forth or analyze the factors from Z.L.T. Additionally, Stanton puts th e burden on t he trial court to set up a telephone or video conference, but as shown above, the trial cou rt does not have sole responsibility for that. Furthermore, Stan to n wa s able to present his objections and arguments to the dismissal notice th rough hi s various filings

.17 court abuse d its dis cretion by denying his r equest to p articipate in the dismissal hearing vi a telep hone or video conferencing.

e . No Abuse o f Discretion Show n by Trial Court ’ s Dismiss ing When No Proposed Scheduling Order Presented
We have d iscu ssed the arguments that Stanto n raises in his first th ree issue s regarding the dismissal of his case fo r want of prosecution and the implicit de nial of
his request for a bench warrant or alternative means of participating in the dismissal hearing . Wit hin the se three issues, St anton do es not c omplain of his i nability to procure a scheduling order form and m akes no argument that he pres ent ed a proposed sc heduling order, which was necessary if he was atte mpting to fulfill th e alternative require ment in th e dismissal notice that pertained to his a ppearance at the hearing

. T he trial court ’ s dismissal order can thus al so be upheld on this ground

— S tanton ’ s f ai lure to present a pro posed scheduling order.
3. Disposition of First Three Issues
We h old that t he trial court was within its discret ion to d ismiss Stanton ’ s case for failing to comply with the express requi rements in the dismissal notice. We also
hold t hat the trial court did not abuse its discretion by impliedly de nying Stanton ’ s
reques t for a bench warrant or to participate by alter nate mea ns when he failed to18 provide any facts for the trial court, or th is cour t , to analyze the Z.L.T. fa ct ors . Accor di ngly, w e overrule Stanton ’ s first , second , 7 and t hird issues.
I V. Trial Court ’ s D ismi ssal Di d Not B urden Stanton ’ s Access to the Cour t In hi s fourth issue, S tanton argues that the trial court ’ s dismissal o f his c ase for want of pr osecution under Rule 16 5 a placed an unreaso n a ble and ar bitrary burde n on his access to the co urt an d violated t he Texas and Unite d Stat es Constitu tions. 8
S tanton argu es that he h ad the right to testify on his own b ehalf a nd the righ t to call
witnesses ; that the t rial court deni e d him “ the right to his day in [c]ourt ” ; and that the
trial court arbi trarily den ied him the right to be heard.

7 A s part of his secon d issue, S t anto n stat es that this court should r equest a screenshot of the collected video foota ge rec o rding th e da t es an d times fr om t he Denton Co unty Law En forcement Division related t o case F

- 2011

- 19 12

- C t o show t hat the dates and tim es on State ’ s Exhibit 16 (a video) have been altered. Based on
ou r disposition of this issue , we need not reques t that the rec ord be suppl emented. S ee generally Tex. R. App. P. 34.5(c)( 1) (providing process for supplementati on of record with any relevant item that ha s been omitted from the rec ord). Moreover, i n an o rder dated D ecember 1, 2 021 , we denied S tanton ’ s separ ately fil ed motion to suppleme nt the appellate reco r d.

8 Stanton set forth his four th issue in hi s br ief as follows: “ Whether a Pri[]so ner ’ s Right to T estify and Examine the Wi tn esses against him may be restri cted by a State r ule tha t involves the basis of Fraud, C o mm on

– Law Cause of Ac tion? ” He then explained in the f irst sen tence follow ing the statement of his fourth issue that he was arg uing that the trial cou rt abused its discretion by dismissing his peti t ion und er Rule 165a because it placed a n unreaso n a ble and ar bitrary burde n o n his access to the co urt an d violat ed t he T exas a nd Unite d Stat es Constitu tions

.19 H ere, no report er ’ s record was made of any hearings h eld in the trial court, and
the dismissal order d oes not state whether a hearing was condu ct ed

. 9 Even though
the record does n ot affirmat ively show that no h earing was held, a separa te dismissal
hear ing is not always required. See Alexander , 13 4 S.W.3d at 852 (holding that separate hearing to a djudicate dismissal was not required when plainti ff did not comply with express requir ements in d ismissal notice) ; see also Sep eda v. State , N o. 14

- 14

- 0 0443

- CV,
2015 WL 4366220 , at *3 (Te x. A p p.

— Houston [14 th Dist.] July 16, 2015, pet. denied ) ( mem. op.) (s tating that “[a]ll that Rule 165a( 1 ) requires is n otice of intent to dismiss
and of a date, time , and p lace for the hearing ” and that the s ett ing of appellant ’ s c ase on the trial court’s dismissal docket met these requirements ) . Because Stanton did not

c omply with the express requirements in the dismis sa l notice, a dismissal hearing was

no t required

. See id. ; In re L.R

. , No. 02

- 19

- 0037 7

- CV, 20 20 WL 6788933, at *3 (Tex.
A p p.

— Fort Worth Nov. 19, 2020, no pet. ) (mem. op.); Douglas v. Am. Title Co. , No.
14

- 0 8

- 00676

- CV, 20 09 WL 3851674, at *3 (Tex. App.

— Hou st on [14 th Dist.]
Nov. 19, 2009, no pe t. ) (per c uriam) (mem. op.)

. Moreover, with regard to Stanton ’ s open

- courts c hallenge to Rule 165a , we note that the Amarillo Court of Appeal s has previously addressed this iss ue:

9 The dismissal order state s in p ertinent part , On the 25 th day of June 2021, th e above styled and numbered cause havin g been reached on the [ c ] ourt ’ s [d] oc ket, and no appear an ce being made, i t is the opini on of the [c] ourt that ALL causes of action filed and
s till pending in this case s hould be dismissed for want of prosecution.20 We begin with [appellant ’ s] open [

- ] cou rt s argument. Here [,] she claims [that] Rule 16 5a unconstitutionally denies her access to court fo r presen tation of her wor kers ’ compensation case because emanating from t he rule is the impossible condition that her att orney must diligently pursue the tri al judge to timely obtain a signed written order

. In relevant part, [A rticle] I, [S ection] 13 of t he Texas Constitution pro vides [,] [ “ ] All courts shall be open, and every person for an injury done him, in his lands, goo ds, person [,] or reputation, shal l h av e remedy by due course of law. [ ” ]
The Texas S upr eme Court has determined that this provision inc ludes at least three sepa rate constitutional guarantees: (1) courts must actual ly be operating and available; (2) the le gislature cannot impede access to th e courts through unreasonable financial barriers ; a nd (3) meaningful remedies must be afforded, “so that th e legislature may not abrogate the right to assert a well

- establi shed co mmon [

- ] law cause of action unless the reaso n for its action outweighs the lit ig an ts ’ constitutional right of redress.” Tex [

. ] Ass ’ n of Bus [

. ] v. Tex [

. ] Air Control Bd. , 852 S.W. 2d 440, 448 (Tex. 1993). [Appellant ’ s] argument invokes the third guaran tee.
A litigant challenging a statute on the th ird open [

- ] courts guarantee must s at isfy t wo criteria: First, it must be shown t hat th e litigant has a cognizable common [

- ] law cause o f action that is being re stricted. Second, the litigant must show that t he rest riction is unreasonable or arbitrary when balanced against the purpose and ba sis of the statute. Lucas v. United States , 757 S. W.2d 687, 690 (Tex. 1988) [] [( quoting Sax v. Vot teler , 6 48 S.W.2d 661, 66 6 (Tex. 1983) )]

. The workers ’ compensation syst em is a product of statute and was unknown at common law. See Lambert v. Affiliat ed Foods, Inc. , 20 S.W.3d 1, 5 (Tex. App.

— Amari llo 19 99), aff ’ d

, 44 S.W.3d 544 (Tex. 2001). Accordin gly, [ap pellant] is unabl e to satisfy the first criteria of an open [

- ] cou rts cla im. But even had she possessed a cognizable c ommon law cause of action res tr icted by Rule 165a, her open [

- ] courts claim21 c ould n ot withstand the balancing requirement of the se cond pro ng of the analysi s. The supreme court adopted Rule 165a in 1973 to amel iorate t he effect of a judge ’ s dismissal of an action for neglect and non

- a ct ion. Rizk v. Mayad , 603 S.W.2d 773, 776 (Tex

. 1980 ). Rule 165a(3) provides a method of reinstatem ent for cases dismissed u nder the rule or by the inherent power of the co urt to control its docket. Tex. R. Civ. P. 165a(4). Taking advantage of this rei ns tatement mechanism, [appellant] was able to p resent her grounds for reinstatement by motion, eviden ce, and presentation at a hearing. Given the purpose of Rule 165a(3), it s requi rement of a wri tten order of reinstatement sig ned within 105 days of dismis sa l does not create an unreasonable or arbitrar y burd en for a litigant availing herself of the rule ’ s opportu nity for reinstat ement. Wallingford v. Trinity Universal Ins. Co

. , 253 S.W.3d 720, 727 (Tex. App.

— Amarillo 2007,
pet. denied)

. Here, unlike the a pp ellant in Wallingford , Stanton does not make clear w hich part of Rule 165a he claims violates the o pen

- cour ts provision. In stead, h is argument appears to be that Rule 165a genera lly violates the open

- courts provision if an

e v identiary hearing

— at which h e can testify , call witnesses , and cross

- examin e the opposing witnesses

— is not held. W hen presenting a const itutional challen ge , the burden of proof is on the party challeng ing con stitutionality. See Tra velers Indem. Co. v.
F

uller , 892 S.W.2d 848 , 850 ( T ex . 1995)

. Because Rule 165a pro vides for a he aring to
be held, Stanton has failed to meet his burden of proof sh owing that Rule 1 65a is

uncon st itutional on its face. Similarly, Stanto n has failed to meet his burden of proof
showi ng that Rule 165a is unc on stitutional as applied to him because the dis missal

sett ing notice provided that the tr ial court would h old a he aring if ( a) Sta n t on22 appe ar ed and (b) he presented a proposed sch eduling order ; Stanton failed to meet
th ese prerequis ites as discussed above

. Cf. Sepeda , 2015 WL 4366220 , at * 5 (holding

t hat trial c ourt did not abuse its discretion by denying app ellant t he right to acces s the courts in light of ap pellant ’s failure to show th at his presence was necessary at any hearing ) ; Ray v . Ta ylor , No. 01

- 9 1

- 01074

- CV , 1992 WL 296961 , at *3 (Tex. App.

— Ho uston [1 st Dist.] Oct. 22, 1992 , writ denied ) (not designat ed for p ublication) (hold ing that because appellant di d not use the oppor tunitie s made available to him to
have his case heard , including failing to f il e a motion to reinstate, appellant could not complain on appeal that the trial court erred by “ closing t he court house doors to hi s suit ” ). Stanton has thus failed to carry his burden of proof on his cons titutional challenges to R ule 165a. Accordingly , w e overrule S tanton ’ s fo urth issu e . 10
V . Co nclusion
Havi ng overruled Stanton ’ s fo ur issues, we af fi rm the tria l court ’ s jud gment dismissing his case for want of pro secution

. /s/ Dabney Bassel Dab ney Bas sel Justice
Delive red: March 10, 2022

10 T o the extent that Stanton ’s four th issue r e

- urges the arguments raised in his t hird issue

— that t he trial court “s hould hav e allowed him to appear at the dismissal hearing so he could cross

- exami ne his [ t rial attorney] and Appellee, ADA Michael Dicke ns, and present evidence of [f]raud ”

— we ha ve already overruled such arguments and nee d not repeat that an al ysis here.