COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS

J AMES L EE SWEED, Appellant,

v. J AY L . NYE, JAI ME ESPARZA, DI STRI CT ATTORNEY OF ELPASO COUNTY, TEX AS, EL PASO COUNTY DI STRI CT ATTORNEYS OF FI CE, THE STATE OF TEXAS, and THE ATTO RNEY GENERAL OFF I CE OF T HE STATE OF TEXAS, Appellee s. § § § § § § § § No. 08-07-00132- CV

Appea l from 120th District Court of El Paso County , Texas (TC # 2005-5667)

O P I N I O N
J ames L ee Sweed bring s this restric ted appea l complaining of the trial court’s dismiss al for want of pr osecution. F or the re asons that follow, we reve rse a nd rema nd.
F ACTUAL AND P ROCEDURAL BACK GR OUND On Aug ust 12, 2005, Sweed filed suit ag ainst J ames L

. Ny e, District Attorney J aime Esparza, the Offic e of the District Attorney , the State of Texas, and the Texas Attorn ey Gene ral alleg ing claims for malicious prosec ution a nd false imprisonment. I n his petition, Sweed listed his addre ss

as 5121 Danny Drive, El Paso, Texas 79924. On Aug ust 31, 2006, he filed a letter with the District Clerk advising the court of a chang e of addre ss to El Paso County J ail Annex, 125 01 Montana, El Paso, Texas 79 9 3 8

. On October 24, 2006, Sweed filed a “first no evidenc e motion summary judgme nt” listi ng as his addre ss the El Paso County J ail, P.O. Box 125, El Paso, Texas 79901. Thedistrict court set a status confe renc e for October 30, and sent notice to Sweed at the Danny Drive

addre ss. The notice w as re turned a s not deliverable

. On October 31, the court set the Appellees’ mot ion to dismiss for want of pr o s ec u t i o n for hear ing on November 6. Ag ain notice was sent t o t h e Danny Drive addre ss and was returne d unclaimed. On November 6, the district court dismiss ed the suit for want of prosec ution. That same day , the court sent the dismiss al order to the Danny Drive addre ss which was returne d undelivera ble.
Two day s later, the District Clerk sent Sweed notice of the dismiss al at 12501 Montana, County J ail Annex, El P aso, Texas 79938. Sweed filed notice of appeal on April 24, 2007, five and a half months afte r t he trial court dismiss ed his claim. See T E X .R.A P P .P. 26.1(c) (providing that in a restric ted appea l, notice must be filed within six months afte r the judgme nt or order is signe d). I n response to a letter from this court, Sweed filed an “Amende d Notice of Appea l” on May 21, 2007, over six months afte r the trial court dismiss ed his case . See T E X .R.A P P .P. 25.1(f)

. We held that the notice of restric ted appea l was not timely filed and dismiss ed the case for want o f j urisdiction. Sweed v. Nye , No. 08-07-00132-CV,
2009 WL 961945, *1, 2 (Tex.App.--El Paso April 9, 2009), judgment reve rsed by Sweed v. Nye , 323
S.W .3d 873 (Tex. 2010). The Supreme Court reve rsed and rema nded, holding that a timely filed notice of appea l, which was defe ctive but which was timely amende d, invokes the court of appea ls’ jurisdiction for a restric ted appea l. Id

. Acc ording ly , we review Sweed’ s restric ted appea l on the merits.
RESTRICTE D AP P EAL
A restric ted appea l is a direc t attack on a judgme nt. W olf v. An d

reas , 276 S.W .3d 23 (Tex.App.--El P aso 2008, revie w wit hdraw n). I t is available for the limit ed purpose of providing

a party that did not participa te at trial with the opportunity to corr ect an err oneous j u d gm en t

.Campbell v. Fincher , 72 S.W .3d 723, 724 (Tex.App.--Waco 2002, n o pet.). To preva il on a

restric ted appeal , Sweed must establish that: (1) he filed notice of the restric ted appea l within six months after the judgme nt was signed; (2) he was a party to the underly

ing la wsuit; (3) he did not participa te in the hear ing that resulted in t h e j u d gm en t complained of and did not timely file any postjudgment motions or reque sts for finding s of fac t and conclusions of law; and (4) err or is
appar ent on the fac e of the re cord. See T E X .R.A P P .P. 26.1(c), 30; Alexande r v. Lynda’s Boutique , 134 S.W .3d 845, 848 (Tex. 2004). Her e, the Supreme Court’s decision i n Sweed es t ab l i shed t hat notice of restric ted appea l was timely filed within the six month time fra me. There is no dispute that Sweed is a party to the underly ing lawsuit and n o d i s p u t e t h at Sweed did not participa te in the hear ing. No post-judgme nt motions appea r in the reco rd

. T h erefore , Sweed has sufficie ntly established elements one, two, and three

. The only rema ining issue then is whether he has met the fourth ele ment by

demonstrating that err or is appar ent on the fa ce of the re cord.
STANDARD OF REVIEW AND AP P LICABLE LAW The trial court’s authority to dismiss for want of prosec ution is g overne d by Texas Rule of Civil Procedur e 165a as well as the court’s inhere nt power . See Villarreal v. San Antonio Truck & Equip. , 994 S.W .2d 628, 630 (Tex. 1999). Under Rule 165a(1) , a trial court may dismiss a suit when the party seeking aff

irm at i v e relief fails to appea r at trial or another hearing afte r receiving notice of the setting. T E X .R.C I V .P. 165a(1) ; Villarreal , 994 S.W .2d at 630. A d i s m i s sal for failure to
appea r under Rule 165a(1) is appropr iate only when plaintiff had notice of (1) a trial on the merits; (2) a dispositi ve hear ing; or (3) a nondispositi ve hear ing only if the notice s t at ed that failing to
appea r could result in dispositi on of the suit. Under common law, the trial court has the inhere nt
power to dismiss --indepe ndent of its authority under Rule 165a-- when a plaintiff does not prosec ute its case with dilige nce. Villarreal , 994 S.W .2d at 630.A trial court cannot dismiss a case without g iving the plaintiff notice of its intent to dismiss

.

Villarreal , 994 S.W .2d at 630. The notice to dismiss must st at e wh ether the dismiss al is: (1) for fa ilure to appea

r under Rule 165a(1) ; (2) for failure to comply with the Supreme Court’s time standards under Rule 16 5 a( 2 ); o r (3) for failure to diligently prosec ute the suit under the court’s inhere nt power. See A lexande r , 134 S.W .3d at 850; Villarreal , 994 S.W .2d at 630. When a par ty is not repr esente d by counsel, the notice must be sent to the party

. T E X .R.C I V .P. 165a(1) ; Gene ral Elec. Co. v. F

a l co n R i d g e Apts., Joint Venture , 811 S.W .2d 942, 943 (Tex. 1991). A dismiss al
g rante d without notice violates the party ’s due proce ss rig hts and must be reve rsed. Villarreal , 994
S.W .2d at 630. We rev iew a trial court’s dismiss al for want of prosec ution under an abuse of discretion standard. See Villarreal , 994 S.W .2d at 630; see MacG regor v. Rich , 941 S.W .2d 74, 75 (Tex. 1997).
ANALYSIS S wee d challeng es t he dis missal for want of prosecution beca use he did not rec eiv e p ro p er notice and was thus denied due proce ss. Appellee s do not claim that Sweed rec eived notice. I nstead, they arg ue Sweed’ s claims are barr ed by absolute immunit y , and beca use Sweed’ s claims fail to set
out a ny waiver of such immunit y , his suit has no arg uable or fac tual leg al basis. We a ddress these
arg uments first. Appellee s rely on Texas Civil Practice an d R emedies Code sections 13.001 and 14.003.
I nitially we note that any relianc e on Section 13.001 is misplaced beca use Section 13.004 provides: “This chapte r does not apply to a claim g overne d by Chapter 14.” T E X .C I V .P R A C .&R E M .C O D E A N N
. § 13.004 (West 2002). Chapter 14 of t he Tex as C ivil Practice and R emedies Code g overns a sui t “broug ht by

an inmate in a district, county , justice of t he peace , or sm all claims court in which an aff idavit or unsworn decla ra t i o n o f i n ab ility to pay costs is filed by the inmate.”T E X .C I V .P R A C .&R E M .C O D E AN N
. § 14.002. Acc ording ly , Sweed’ s suit is g overne d by Chapter 14

and Section 13.001 does not a pply

. See T E X .C I V .P R A C .&R E M .C O D E A N N . § 13.004. Under Section 14.003(a) , a trial court m ay dismiss an inmate’s suit if the court finds that claims asser

ted there in are “fr ivolous or malici o u s . ” T E X .C I V .P R A C .&R E M .C O D E AN N
. § 14.003(a) (2). A claim is frivolous if it “has no arg uable basis in law or in fac t.” Id

. § 14.003(b)( 2). Appellee s arg ue that the t ri al co u rt d i d not err beca use a district court is entitled to dismiss a frivolous lawsuit befor e or a fter se rvice of process, wit h or wit hout a hea ring , and such a

decision “may be aff

irmed on appea l if [S wee d’s] c laims ha ve no arg uable basis in f

act or law.” Appellee s further contend that “[a] dismiss al may be upheld on appea l on g rounds that are differ ent than those relied on by the t rial court,” and a dismissal for wa nt of prosec ution may

be af firmed on any leg al theory

. I n sup port of these contentions, they direc t us to Polk v. Braddock , 864 S.W .2d 78 (Tex.App.--Da llas 1992, no writ). The problem with this arg ument is tha t a n appellate court must aff irm the dismiss al “if it wa s proper on any g round stated in the motion , even if it wa s g rante d on an improper

g round.” [Emphasis added]. See P olk , 864 S.W .2d at 79. The only g round st ated in the moti on to dismi ss was “want of prosec ution” and the rec ord does not indicate the trial court d i s m i s s ed the suit for any other rea son. Whil e a plea to the 1 jurisdiction was filed by Appellee s prior to the date of di smissal, the co u rt h as not ruled upon the plea. Nothing in the rec ord indicates the trial court dismiss ed the suit as frivolous, or dismiss ed the suit on any other g rounds other than those stated in the motion. There fore , the only issue rema ining is whether the fac e of the rec ord demonstra tes that notice wa s provided to Sweed. I t was not.

T h e d i s m i s s a l o r d e r i t s e l f s t a t e s : “ B e i t r e m e m b e r e d t h a t t h e C o u r t , a f t e r d u e n o t i c e t o t h e a t t o r n e y a n d / o r 1 p r o s e o f r e c o r d i n t h e a b o v e s t y l e d a n d n u m b e r e d c a u s e , t h a t s a i d c a u s e w o u l d b e d i s m i s s e d , f o r w a n t o

f p r o s e c u t i o n u n l e s s t h e r e w a s g o o d c a u s e b e i n g s h o w n , i s o f t h e o p i n i o n t h a t t h e f o l l o w i n g o r d e r s h o u l d b e e n t e r e d

. ” [ E m p h a s i s a d d e d ]

.Be fore a lawsuit may be dismiss ed for want of prosec ution, the trial court must mail notice

of its intention to dismiss and the date and place of the dismiss al hear ing to eac h attorney of rec ord

to the addre ss shown on the docket or i n t h e p ap er s on file. Villarreal , 994 S.W .2d at 630; see T E X .R.C I V .P. 165a(1)

. These require ments are nece ssary to ensure the party whose case is subject

to dismiss al has rec eived due p ro ce s s . S ee Franklin v. Sherman Indepe ndent School Dist. , 53
S.W .3d 398, 401 (Tex.App.--Da llas 2001, pet. denied)

. Fa ilure to provide adequate notice of intent

to dismiss require s reve rsal. See GMAC v. Fleetwood Enterprises, Inc. , No. 10-08-00055- CV, 2009
WL 754693, at *1 (Tex.App.--Waco Marc h 18, 2009, no pet.)(me morandum opinion), citing Dueitt

v. Arrowhead Lakes Property Owners, Inc. , 180 S.W .3d 733, 737 (Tex.A pp.--Waco, 2005, pet. denied)

. I n a restric ted appea l, the fac e of the rec ord includes all documents and evidenc e befor e the trial court when it rende red its judgm en t an d a re porter’ s rec ord if one exis ts. Falcon Ridge Apartments , 811 S.W .2d at 944; see Norman Communications v

. Texas Eastman Co. , 955 S.W .2d 269, 270 (Tex. 1997). When notice bear s an incorre ct addre ss, it consitutes err or on the fac e of the

rec ord. See Mann, Frankfort, Stein & Lipp, P.C. v. Fleetwood Managem ent. Corp , No. 01-99- 0927- CV, 2000 WL 280438, at *2 (Tex.App.--Houston [1st Dist.] Marc h 16, 2000, no pet.); see also
Gene ral Motors Acc eptance Corp. v. City of Houston , 857 S.W .2d 731, 733-34 (Tex.App.--Houston [14t h Dist.] 19 9 3 , no writ)(be cause both notice of intent to dismiss and dis missal order contained improper a

nd incomplete addr ess, trial cour t abused discr etion in refusing to reinstate c ase)

. The rec ord establi s h es t h at notice was sent to the Danny Drive addre ss and returne d as undelivera

ble. The recor d also shows that previous noti ces sen t to the Danny Drive address were

returne d undelivera

ble. Be cause Sweed proper ly u p dated his addre ss with the court, notice was inadequa te on the fac e of the rec ord. See Dicke rson v. Sonat Exploration Co. , 975 S.W .2d 339, 342-42 (Tex.App.--Ty ler 1998, pet. denied) (holding that the trial court err ed in failing to mail the notice of intent to dismiss to the more rec ent addre ss included on the lawy er’ s letterhe ad instead of to the addre ss list ed on the pa

rty ’s live pleading ); Transoceanic Shipping Co., Inc. v. G eneral Univ ersal Systems, Inc. , 961 S.W .2d 418, 419-20 (Tex.App.--Houston [1st Dist.] 1997, no pet.)(the court held there was err or on the fac e of the rec ord indicating Transoc ea n i c did not rec eive the trial setting notice mailed by the cler

k wher e notice was mailed to Transoc eanic ’s counsel’s former addre ss and

returne d undelivera

ble, and the court noted that whe t h er Transoc eanic ’s counsel was at fault by failing t o p rovide a curr ent mailing addre ss was not a consideration on appea l by writ of err or, a non-equitable proce eding ); Fleetwo od , 2009 WL 754693, at *4 (holding dismiss al for want of
prosec ution improper wher e notice of hear ing was mailed to an addre ss that was differ ent from the

most rec ent filings and the rec ord and envelope s wer e returne d undelivera ble, and noting that when the notice was returne d und el i vera ble, court personne l should have “re examine[ d] the file to deter mine if there [was] evidenc e of a more rec ent addre ss”). We sustain I ssue One and reve rse and

rema nd.

Aug ust 26, 2011 ANN CRAWFORD McCL URE, J ustice
Be fore Chew, C.J ., McClure, a nd Rivera, JJ

.