### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00368- CV

F loyd Pleasant Tarvin IV, Appellan t

v. Texas Depart m ent of Crim inal Ju stice, A ppellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 261 ST JUDICI AL DISTRICT NO. D-1 -GN-0 9-0 0401 0, H ONO RAB LE JO HN K. DIETZ, JUDGE PRESI DING

M E M O R A N D U M O P I N I O N
Appellant Floy d Pleasant Tarvin I V appeals from the trial court’ s order dismiss ing for want of prosec ution his lawsuit ag ainst the Texas Depa rtment of Criminal J ustice. Be cause the trial court err ed in failing to hold an oral hear ing on Tarvin’ s motion to reinstate, we reve rse the trial
court’s ove rruling of Tar

vin’s motion to reinstate and re mand the ca use for further proce eding s. 1
On November 24, 2009, Tarvin filed his or ig in a l p e ti ti o n a ll eg ing that the Depa rtment had violated his fe dera l and state rig hts by g iving him inade quate living space . On May 13, 2010, he filed a m o t i o n s eeking injunctive relief

. I n J uly 2010, Warren Vavr a, the trial court’s court administrator, sent Tarvin a letter explaining that Vavr a was responsible for scheduling hear ings and

The facts and proce dural backg round of the cause are we ll-known to the parties, and we 1 there fore will not rec ite them in g rea t d et ai l in this opinion. See Tex. R. App. P. 47.1 (appe llate court opinions shou l d b e as “brie f as prac ticable” ), 47.4 (memora ndum opinions should be “no longe r than ne cessa

ry to advise the pa

rties of the c ourt’s dec ision and the basic r easons f or it”).for the day -to-day operations of the centr al docket but did not have the authority to file documents,

althoug h he said he routinely forwa rded Tarvin’ s documents to the cler k’s office for filing. Vavr a provided the cler

k’s office ’s addre ss and explained the require ments to g et a defe ndant serve d with citation. On October 19, 2010, the trial court sent Tarvin notice that it intende d to dismiss the suit for wa n t o f p rosecution unless a motion to reta in was filed befor e November 19, and on May 6, 2011, the court signe d an order dismiss ing the suit. On J une 3, 2011, Tarvin filed a motion to reta in the suit and a motion to reinstate the case . Tarvin also asked the trial court to hold a hear ing on his 2
motion to reinstate. Tarvin’ s motion was not verifie d, see Tex. R. Civ. P. 165a(3) , but it did include

an unsworn decla

ration, see Act of J une 1, 1987, 70th L eg ., R.S., ch. 1049, § 60, 1987 Tex. Gen.
L aws 3517, 3540 (for

mer T ex . Civ. Prac. & Rem. Code § 132.001 (inmate may use unsworn d ec l ar at i o n in place of sworn verific ation), § 132.003 (providing format for unsworn decla ration and requiring substantial compliance with format) ). The trial court did not act on Tarvin’ s motion 3

to reinstate, which was there fore overr uled by operation of law. On appea l, Tarvin complains that 4
the cour t abused its discretion in dismissi ng the s uit and in fa iling to hold a hea ring on his moti on to reinstate.

I n his motio n t o reinstate, he asser ted that he filed a motion to reta in on November 14, 2 2010, but that motion does not appea r in the rec ord. Although we note that the unsworn decla ration included in the body of Tarvin’ s motion to reta in was dated November 14, 2010, and that his pray er for relief asked the trial court to set the matter for a pretria l confe renc e in J anuar y 2011, we cannot specula te as to why

the motion was not filed until J une 2011. Tarvin ’s u n s wo rn decla

ration does not state his inmate number or the location of his 3 incar cer ation, but it is part of his motion to reinstate, which provides that information elsewhe re, and former section 132.003 require d only that the form of an inmate’s unsworn decla ration substantially follow the statutory

lang uag e. When a motion to reinstate is not decide d by signe d order within seventy -five day s afte r 4 the judgme nt is signe d, the motion is deeme d overr uled by operation of law. Tex. R. Civ. P. 165a(3)

. 2The only motion to retai n i n cluded in the clerk’s record is the m otion filed J une 3,

2011, afte r the trial court had signe d the order of dismiss al. The motion alleg ed that the Depa rtment had interfe red with his eff orts to further his suit by limit ing his acc ess to the prison’s law library and
to copier s, paper , envelope s, postag e, and other office supplies, but such limit ations do not explain why Tarvin was able to take virtually no action in the suit betwee n November 2009 and May 2011. 5
The trial court did not abuse its discretio n i n d i s m i ssing the suit for want of prosec ution despite Tarvin’ s motion to reta in, nor was it requ i re d t o h o l d an oral hear ing befor e deciding to dismiss the suit. See Enriquez v. Livingston , No. 03-11-00791- CV, 2013 Tex. App. L EXI S 3154, at *9-13 (Tex. App.—Austin Mar. 20, 2013, no pet. h.) ( mem. op.)

Tarvin is corr ect, however , that the t rial court err ed in not holding a hear ing on his motion to reinstate. When a proper and timely motion is filed pursuant to rule 165a, the trial court

must hold an oral hear ing. See Thordson v. City of Houston , 815 S.W .2d 550, 550 (Tex. 1991); Gulf
Coast Inv. Corp. v. N

ASA 1 Bus. Ctr. , 754 S.W .2d 152, 153 (Tex. 1988); see also Enriquez , 2013
Tex. App. L EXI S 3154, at *14-21 (ora l hear ing is require d upon filing of timely , verifie d rule 165a motion and burden is on trial court, not pa rty , to sc hedule hear ing)

. Tarvin timely filed his motion
to reinstate, reque sted a hear ing, and included an unsworn decla ration. Thus, the trial court abused its discretion in not holdi ng a hea ring on Tarvin’ s motion t o reinstate.

I n his motion to reinstate, Tarvin stated that he “made sever al attempts to se cure pre- trial 5 preliminary hear ings” in Dec ember 2009, Fe bruar y 2010, an d M arch 2010. The rec ord does not include docume nts to support that alleg ation, and Ta rvin does not explain those effor ts. 3We reve rse the trial court’s overr uling of Tarvin’ s m o t i o n t o reinstate and rema nd the cause to the court to hold an oral hear ing on the motion as require d by rule 165a. We make no 6
deter mination of whether Tarvin is entitled to reinstateme nt or whether the trial court must arr ang e for his phy sical pre sence at the hea ring or if telephonic participa tion will be sufficient.

__________________________________________ David Pury ear , J ustice
Be fore J ustices Pury ear , Goodwin and F ield
Reverse d and Remande d Filed: June 26, 2013

The State argues in its appellee’ s brief tha t dismissal was also proper under chapte r 14 of 6 the civil prac tice and reme dies code, which g overns the dismiss al of an indige nt inmate’s lawsuit if the trial court deter m i n es t h e suit is frivolous or malicious. See Tex. Civ. Prac. & Rem. Code § 14.003. Howeve r, althoug h dismiss al might have b ee n p roper under chapte r 14, the suit was dismiss ed for want of prosec ution, not as being frivolous, and we decline to speculate whether the trial court mig ht have de termined that the suit was f rivolous. 4