1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

____________________ NO . 09
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- 00 1 99
- C V



### ____________________ GARY RAY SANGSTER , Appellant
V. JARROD L. WALKER, Appellee

_______________________________________________________ ______________ On A ppeal from the 410th District Court Montgomery County, Texas Trial Cause No . 12
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- 11562 CV

________________________________________________________ _____________ MEMORANDUM OPINION This appeal arises from the trial court’s dismiss a l of a lawsuit for want of prosecution. After the trial court dismissed Gary Ray Sangster’s case, Sangster filed a verified 1 motion to reinstate, and he also requested an oral hearing on his

1 Sangster’s motion was timely, as it was filed within thirty days of the date the trial court ordered the case dismissed. Sangster’s verification satisfies th e jurat requirements that are app l icable to inmate s , as inmates are permitted to file unsworn declaration s in lieu of written sworn declaration s to verif y their motion s . Tex. Civ. Prac. & Rem. Code Ann. § 132.001(e) (West Supp. 2014), see also Gray2 motion. The trial court did not conduct an oral hearing on Sang st er’s motion

. Sangster contends the trial court erred when it dismiss ed his case and when it
fail ed to grant his motion to reinstate. We reverse the trial court’s order of dismiss al. Background On January 24, 2014, the trial court dismiss ed Sangster’s case for want of prosecution

. D uring the docket call , the trial court noted that there had been “no action since January [20 13 ] .” The trial court noted on the docket sheet that its dismissal result ed from the “non

- appearance of any party and/or for failure to comply with this Court’s orders[.]” After his case was dismissed, Sangster timely filed a motion to reinstate. See Tex. R. Civ. P. 165a(3). Although Sangster requested that the trial court set his motion for an oral hearing, the trial court did not do so

. T he record before us does not show that the trial court rul ed on Sangster’s motion to reinstate

. In his motion, Sangster argue d that he never received notice that the court intended to dismiss his

case . Sangster contend s that his failure to appear was not intentional; instead , he asserts his failure to appear resulted from the clerk’s failure to notify him of the docket call

. Sang st er contends that he is ready for trial , although he indicates that v. Gray , No. 09

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- 00332

- CV, 2015 Tex. App. LEXIS 3232, **5

- 10 (Tex. App.

— Beaumont Apr. 2, 2015, no pet. h.).3 he still needs to discover the name of an investigator that might be need ed as a witness at trial

. In four issues, Sangster assert s the trial court ’s order dismissing his suit should be reversed

. In his fifth issue, Sangster argues that the trial court abused its discretion by failing to grant his motion to reinstate. Standard of Review We review a trial court’s ruling dismissing a case for want of prosecution and a court’s ruling on a motion to reinstate under an abuse of discretion standard

. See Smith v. Babcock & Wilcox Constr. Co., Inc. , 913 S.W.2d 467, 468 (Tex. 1995) (per curiam); Franklin v. Sherman Indep. Sch. Dist. , 53 S.W.3d 398, 401 (Tex. App.

— Dallas 2001, pet. denied) (per curiam). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner, or when it acts without reference to any guiding rules and principles. Downer v. Aquamarine Ope rators, Inc. , 701 S.W.2d 238, 241

- 42 (Tex. 1985). Analysis Rule 165a(1) of the Texas Rules of Civil Procedure requires that trial courts notify the parties of the “court’s intention to dismiss and the date and place of the dismissal hearing . . . .” Tex. R. Civ. P. 165a(1). A failure to provide adequate
notice to the plaintiff that the trial court intends to dismiss the case for want of4 prosecution requires the trial court’s order to be reversed. Villarreal v. San Antonio Truck & Equip. , 994 S.W.2d 628, 63 0 (Tex. 1999).
A trial court may also dismiss “independently of the rules of procedure when a plaintiff fails to prosecute his or her case with due diligence.” Villarreal , 994 S.W.2d at 630. Nevertheless, a trial court ’s exercis e of its inherent common l aw powers still require s the court to provide a party with notice and an opportunity to be heard before dismiss ing a case for want of prosecution. Id. Thus, regardless of whether the dismissal of Sangster’s case was based on the trial court’s inherent auth ority or on Rule 165a, Sangster was entitled to be sent notice of the dismissal hearing

. See id. Once dismissed, Rule 165a(3) of the Texas Rules of Civil Procedure provides that upon the filing of a timely verified motion to reinstate, the judge
“shall set a hearing on the motion as soon as practicable” and “[t]he court shall notify all parties or their attorneys of record of the date, time and place of the hearing.” Tex. R. Civ. P. 165a(3). The Texas Supreme Court has held that “‘it is clear that an oral hearing is required on any timely filed motion to reinstate under rule 165a.’” Thordson v. City of Ho uston , 815 S.W.2d 550, 550 (Tex. 1991) (quoting Gulf Coast Inv. Corp. v. NASA 1 Bus. Ctr. , 754 S.W.2d 152, 153 (Tex. 1988)).5 Sangster filed his motion to reinstate in a timely manner. A trial court abuses its discretion when it fails to hold an oral heari ng on a party’s timely filed motion to reinstate. Thordson , 815 S.W.2d at 550. According to the appellee, Jarrod L. Walker, the record is silent on the question of whether the clerk notified Sangster that his case might be dismissed. However, the record demonstrates that the trial court did not conduct an oral hearing on Sangster’s motion to reinstate. And, the only evidence in the record indicates that Sangster never received the notice contemplated by Rule 165a(1).
See Tex. R. Civ. P. 165a(1). There is also no evidence that the clerk sent Sangster notice of the dismissal hearing. “While some courts have indicated that due process concerns over what suffices for sufficient notice are satisfied by providing a party with the order of
dismissal and then sub sequently giving the party an opportunity to address the merits of the dismissal at a hearing, no comparable opportunity to be heard occurred here.” Durbin v. Muchow , 309 S.W.3d 758, 761 (Tex. App.

— Beaumont 2010, no pet.). In this case, the record shows that Sangster did not receive notice of the dismissal hearing before the court dismissed his case, nor did Sangster receive a subsequent hearing on his motion to reinstate, despite his request for one.6 Because the record be fore us does not show that Sangster received notice of the trial court ’s inten t to dismiss his case , we reverse the trial court’s order of dismissal and we remand the case to the trial court with instructions to reinstate his

case . REVERSED AND REMANDED.

_________________________ HOLLIS HORTON Justice

Submitted on December 29 , 201 4 Opinion Delivered August 27, 2015 Before McKeithen, C.J., Kreger and Horton, JJ.