Opinion issued January 31, 2013

In The

Court of Appeals 

For The 

First District of Texas 

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NO. 01-11-00591-CV

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IN RE J.M.H., A CHILD

On Appeal from the 387th District Court

Fort Bend County, Texas

Trial Court Case No. 08-DCV-167174

MEMORANDUM OPINION

Appellant, Mark Parmer, petitioned the trial court to change the surname of 

J.M.H., his biological minor son who was born during his previous marriage, to his 

own surname. The trial court dismissed Parmer’s petition for want of prosecution. 

In two issues, Parmer contends that the trial court abused its discretion by (1) not 
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changing J.M.H.’s surname to his own surname and (2) dismissing his petition 

without conducting a trial.

We affirm.

Background

On September 24, 2008, Parmer filed a petition to change the surname of his 

biological minor son, J.M.H., to his surname. Parmer alleged that J.M.H. was born 

during his marriage to his former wife and that, although it was undisputed that 

J.M.H. was his biological son, his former wife told him that she gave J.M.H. her 

maiden name as his surname because “the insurance company would not insure the 

child while having [Parmer’s] surname.” The record does not reflect that Parmer’s

former wife was ever served with the petition, nor does it reflect that she ever 

entered an appearance in the proceedings.

On April 4, 2011, the trial court mailed Parmer a letter entitled “Notice of 

Trial/Dismissal Setting.” This letter informed Parmer that the case was “set for 

trial/dismissal” on May 23, 2011, at 10:00 a.m. and that he was responsible for 

notifying all other parties and counsel of this setting. The letter also stated, “This 

case may be dismissed for want of prosecution on date of the Trial/Dismissal 

docket if by then, there is no announcement of ready with all preliminary matters 

addressed or scheduled. There are no continuances. All resets must be granted by 

the Court.”
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Because Parmer is incarcerated, the trial court issued a bench warrant to 

ensure Parmer’s presence at the hearing. On May 23, 2011, the trial court held a 

hearing, at which Parmer was present, and signed an order dismissing the case for 

want of prosecution. No reporter’s record exists of this hearing.

Two days later, on May 25, 2011, Parmer filed a motion to dismiss “all 

petitions and proceedings” in the case. In this motion, he stated that he was unable 

to afford counsel, that he was “currently entwined with criminal legal matters with 

regards to his innocence and his freedom,” and that he believed that once he 

established his innocence, he and his former wife could come to a mutual 

agreement concerning J.M.H. The trial court did not rule on this motion.

The Fort Bend County District Clerk notified Parmer that his petition had 

been dismissed for want of prosecution. Parmer did not file a motion to reinstate 

the case; he did, however, file a notice of appeal.

Dismissal for Want of Prosecution

In his first issue, Parmer contends that the trial court abused its discretion by 

failing to change J.M.H.’s surname to his surname. In his second issue, Parmer 

contends that the trial court erred by dismissing his case without conducting a trial. 

We address these issues together.

A trial court has the authority to dismiss a suit for want of prosecution 

pursuant to two sources: Texas Rule of Civil Procedure 165a and its own inherent 
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power to dismiss when the plaintiff fails to prosecute the case with due diligence. 

See Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999);

Fox v. Wardy, 225 S.W.3d 198, 199 (Tex. App.—El Paso 2005, pet. denied); see

also TEX. R. CIV. P. 165a (providing that trial court may dismiss case for want of 

prosecution when party seeking affirmative relief fails to appear for hearing or trial 

or when case is not disposed of within time standards proscribed by Texas 

Supreme Court).

The decision to dismiss a case for want of prosecution rests within the sound 

discretion of the trial court, and we will disturb this decision only if it amounts to a 

clear abuse of discretion. Fox, 225 S.W.3d at 199; Allen v. Rushing, 129 S.W.3d 

226, 229 (Tex. App.—Texarkana 2004, no pet.) (“We review a trial court’s 

dismissal of an inmate’s civil suit for want of prosecution for an abuse of 

discretion.”). A trial court abuses its discretion when it acts in an arbitrary and 

unreasonable manner, without reference to any guiding rules or principles. Fox, 

225 S.W.3d at 200 (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 

238, 241–42 (Tex. 1985)). When determining whether to dismiss a case for want 

of prosecution, the trial court may consider the entire case, including the amount of 

activity in the case, the length of time the case was on file, requests for a trial date, 

and the existence of reasonable excuses for delay. See id. (citing Bilnoski v. Pizza 

Inn, Inc., 858 S.W.2d 55, 58 (Tex. App.—Houston [14th Dist.] 1993, no writ) and 
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City of Houston v. Malone, 828 S.W.2d 567, 568 (Tex. App.—Houston [14th 

Dist.] 1992, no writ)); WMC Mortg. Corp. v. Starkey, 200 S.W.3d 749, 752 (Tex. 

App.—Dallas 2006, pet. denied) (listing same considerations and noting that no 

single factor is dispositive).

If the order dismissing the case does not specify a reason for the dismissal, 

we will affirm if any proper ground supports the dismissal. See Herrera v. Rivera, 

281 S.W.3d 1, 6 (Tex. App.—El Paso 2005, no pet.); Fox, 225 S.W.3d at 200. The 

appellant bears the burden of presenting a record demonstrating that the trial court 

abused its discretion in dismissing the case. See Herrera, 281 S.W.3d at 6; Fox, 

225 S.W.3d at 200. If the appellant fails to bring forth a record of the dismissal 

hearing, 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 

decision. See Herrera, 281 S.W.3d at 6–7.

Here, Parmer filed his petition on September 24, 2008. At the time the trial 

court dismissed the case for want of prosecution on May 23, 2011, the case had 

been pending for more than two-and-a-half years with no activity. The record does 

not reflect that Parmer ever served the respondent, his former wife and J.M.H.’s 

mother, with the petition. See Allen, 129 S.W.3d at 231 (“Evidence of attempting 

to serve the named defendants is one of many factors an appellate court may 

consider in reviewing a trial court’s order dismissing a case for want of 
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prosecution.”). No reporter’s record was taken of this hearing, and, therefore, the 

record does not reflect what questions the trial court asked Parmer at the hearing, 

whether Parmer offered any evidence at the hearing relevant to the issue of 

whether he had prosecuted his suit with diligence, or whether the trial court 

prohibited Parmer from offering any evidence at the hearing. See Fox, 225 S.W.3d 

at 200 (“Fox complains that the trial court prohibited him from presenting any 

evidence at the dismissal hearing, but the record does not reflect that Fox offered 

or the court refused to consider any evidence relevant to whether Fox had 

prosecuted his suit with due diligence.”). There is no indication that Parmer 

presented any evidence explaining the delay in serving his ex-wife or 

demonstrating that he had prosecuted his suit with diligence, and, because Parmer 

failed to present a record of the dismissal hearing, we presume that the evidence 

before the trial court supports its decision to dismiss the suit for want of 

prosecution. See Herrera, 281 S.W.3d at 6–7; Cappetta v. Hermes, 222 S.W.3d 

160, 164 (Tex. App.—San Antonio 2006, no pet.) (“To avoid dismissal, Cappetta

was required to show he exercised reasonable diligence in prosecuting the case.”). 

Moreover, Parmer did not file a motion to reinstate, and, in fact, two days after the 

dismissal hearing, Parmer filed his own motion to dismiss all petitions and 

proceedings in the case. See Allen, 129 S.W.3d at 231 (considering fact that 
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plaintiff did not file motion to reinstate when addressing whether plaintiff 

diligently prosecuted his case).

We conclude that the record before us does not demonstrate that the trial 

court abused its discretion when it dismissed Parmer’s petition for want of 

prosecution. See Fox, 225 S.W.3d at 200 (holding that trial court did not abuse its 

discretion in dismissing case for want of prosecution when suit had been on file for 

seven months with minimal activity, citation was not issued and defendant was not 

served until after court issued Rule 165a notice, plaintiff presented no evidence 

that he offered and court refused to consider evidence relevant to whether he 

prosecuted suit with due diligence, and plaintiff presented no evidence explaining 

delay in service); Allen, 129 S.W.3d at 231 (noting, in affirming dismissal for want 

of prosecution, that case was on file for thirteen months, record did not indicate 

that plaintiff had contacted clerk’s office to effectuate service of process, and 

plaintiff did not file motion to reinstate after dismissal). Because we conclude that 

the trial court did not abuse its discretion when it dismissed Parmer’s petition for 

want of prosecution, we need not address the merits of Parmer’s first issue 

concerning whether he was entitled to have J.M.H.’s surname changed to his 

surname. See Herrera, 281 S.W.3d at 6 (noting, if dismissal order does not specify 

reason for dismissal, we affirm if any proper ground supports trial court’s 

decision).
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We overrule Parmer’s first and second issues.

Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes

Justice 

Panel consists of Justices Keyes, Massengale, and Brown.