### 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. 03-14-00737- CV

Chase Carm en Hun ter , Appellan t

v. Texas Depart m ent of In surance and David Matt ax, in h is Of fi cial Capacity as Com m ission er of Insu rance, A ppellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 250 TH JUDICI AL DISTRICT NO. D-1 -GN-1 3-0 0195 7, 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

Pro se appel l an t Chase Carmen Hunter appea ls from the trial court’s ref usal to
reinstate her lawsuit ag ainst appellee s the Texas Depa rtm en t o f I nsuranc e and the Commi ssioner
of I nsuranc e afte r it was dismiss ed for want of prosec ution. Be cause t h e t ri al court err ed in not

1 holding a h ea ri n g o n Hunter’ s verifie d motion to reinstate, we reve rse and rema nd the cause for
further proce eding s.

F actual and Proc edural Su m m ary
Hunter was a licensed “Te x as non-re sident insurance ag ent” from 2 0 0 3 u ntil May 2013, when the Commi ssioner of I nsuranc e signe d an order o f revoc ation. I n J une 2013, Hunter

H u n te r n a me d a s a d e f

e n d a n t th e f o r me r Co mm is s io n e r o f I

n s u r a n c e , E le a n o r K it zm a

n
. We 1 have substitut ed the curr ent Commi ssioner, David Mattax, as provided for by the rules of appellate proce dure. See Tex. R. App. P . 7.2(a)

.filed suit see king a dec lara tion that the order of revoc ation was void. She also filed an aff idavit to

proce ed as an indige nt. See Tex. R. Civ. P. 145. Starting in J ul y 2 0 1 3, Hunter beg an leveling

co m p l aint s at the trial court cler k, asser ting that the cler

k had ref used to respond to Hunter ’s

reque sts, had denied Hunter acc ess to t h e court sy stem, and had denied Hunter’ s aff idavit of indige nce. Hunter also complained that the trial court cler k had ref used to g ive Hunter fre e acc ess 2

to the trial court’s docket information sy stem and that Hunter had experienced g reat difficulty in

contac ting e mploy ees of

the cler k’s offic e.
On August 25, 2014, the trial court signe d an order dismiss ing Hunter’ s lawsuit for

want of prosec ution. See id. R. 165a. On September 26, Hunter filed a verifie d motion to reinstate,

asser ting that the case had not prog ressed b ec ause the trial court cler k had “violated Texas laws,
fede ral laws, and the United States Constit ution” and “re fused to provide Hunter with service s [t he
cler k] is require d by l aw t o provide,” including ref using to docket the case , issue citations, and perf orm other minist er i al d uties. Pointi ng to petitions and pleading s she had filed with the trial

court direc tly and with this Court, the Texas Supreme Court, and the United States Supreme Court,
she stated that the cler

k’s ref usal to cooperat e wa s t h e only rea son for the case ’s delay and that

Hunter complained, among other things, that the trial court cler k had not issued or serve d 2 citation on the defe ndants. Be cause the rec ord does not inc lude any letter or other doc ument from Hunter asking the cler

k to issue and arr ang e for service of citation, we cannot evalua te the merits of those claims. See Tex. R. Civ. P. 99(a) (“w hen reque sted,” trial court cler k shall issue citation, and
r e q u e s ti n g p a r ty is r e s p o n s ib le f

o r o b ta in in g s e r

v ic e ) , 1 0 3 ( h o w a

n d b y w h o m c it a

ti o n ma y b e s e r v e d )

. Fur ther, Hunter seems g ener ally to have insisted upon sending documents and communicating with the cler k and court via fax, r ather than by telephone, throug h the mail, or via elec tronic filing. See Travis County (Tex.) Dist. Ct. L oc. R. 2.2 (setting s may be reque sted throug h civilcourtsonline.org ); compare id. R. 5 (par

ty may notify trial court of cer tain post-trial pleading s by persona l delivery at courthouse, via mail, or via email; rule does not a llow f ax notifica tion), with id. R. 3.2 (spec ify ing that party may announce rea dy

via fa x ).
2Hunter “has made no mistake, and there has been no acc ident.” S h e asked that the case be 3
reinstated and that the cler k be require d to provide to Hunter fre e of char g e all service s provided to
other parties and to g ive Hunter fre e acc ess to idocket.com or fax her a wee kly summary of activity
in the case

. Rather than addre ssing the portion of the motion that soug ht reinstateme nt, the trial

court cler k relied exclusively on the portion of the motion that asked that the cause be “tra nsfer red”

to this Court, to have trea ted the motion as a notice of appea l, sendin g t his Court a copy on September 29, 2014. We initially dockete d it a s an appe al but dismiss ed that ca use of a ction afte r
Hunter sent us notice that she had not f iled a notice of appea l. A hear ing befor e the trial court was

never held, and the rec ord does not ref lect that any action was taken on the motion by the trial court

or the trial court cler

k. On November 23, Hunter filed a notice of appea l. See id

. R. 165a(3) (motion
to reinstate is over

ruled by operation of law seve nty -five da y s after judgme nt is signed)

.

In J uly 2013, Hunter faxed direc tly to the trial court’s chambe rs a motion titled, “Ve rified 3 Motion Direc tly Filed with J udg e J ohn K. Dietz for Writ of Mandamus and Prohibiti on Direc ted to the Honora

ble Amalia Rodrigue z-Mendoza, Clerk of the District Court of Travis County Texas.” The court did not act on the motion, an d Hunter filed four petitions for writ of mandamus in this Court, all of which wer e denied. See In re Hunter , No. 03-15-00218- CV, 2015 WL 1778346 (Tex. App.—Austin Apr. 1 5 , 2 015, orig

. proce eding ) (mem. op.); In re Hunter , No. 03-14-00121- CV, 2014 WL 1018186 (Tex. App.—Austin Mar. 12, 2014, orig

. proce eding ) (mem. op.); In re Hunter , Nos. 03-13-00468- CV & 03-13-00557-CV, 2013 WL 5526157 (Tex. App.—Austin Oct. 2, 2013, orig

. proce eding ) (mem. op.). She also filed three petitions for writ of mandamus in the Texas Supreme C o u rt , al l o f which wer e denied, and then filed a petition for writ of cer tiorari with the United States Supreme Court, which dismiss ed the petition. She also stated that she filed a fede ral lawsuit ag ainst the trial court cler k, an appea l rela ted to that fede ral suit, and a petition with the I nterAmeric an Org anization of Human Rights, and that there wer e “at least two addit i o n al lawsuits pending ” in the fe dera l sy stem relate d to the cler k’s alleg ed re fusal to comply with the law.
3Discussion
Hunter asser

ts that the trial court cler

k and the trial court ref

used to pe rfor

m c erta in
minist eria l duties and violated rule 145 of the rules of

civil proce dure, w hich g overns the f iling of

an aff idavit of indige nce, and that the trial court violated the rules of civil proce dure when it failed

to hold a hear ing on her motion for reinstateme nt filed afte r t h e ca u s e was dismiss ed for want of

prosec ution. Be cause we ag ree that the t rial court err ed in not holding a hear ing on her moti on to reinstate, w e re verse and re mand the ca use for further proce eding s.
Hunter’ s motion to reinstate asser ted that any inaction in the case was the fault of the
trial court cler

k, particula

rly raising complaints about the cler k’s appar ent reje ction of her aff idavit
of i ndige nce. The recor d does not ref lect that the tria l court cle rk or a ny other party filed a timely

contest to her aff

idavit of indige nce or that the trial court considere d the issue and g rante d any such
contest, and Hunter there fore was entitled to proce ed in the trial court as an indige nt. See Equitable 4
G e n
. I n s
. Co

. v
. Yat

e s , 6 8 4 S. W. 2 d 6 6 9 , 6 7 1 ( T e x. 1 9 8 4 ) ( “ A n u n c o n te s te d a f

f id a v it o f in a b il it y to p a y is conclusive as a matter of law.”) ; In re Villanueva , 292 S.W .3d 236, 243 (Tex. App.—Texarkana 2009, orig

. proce eding ) (re lator filed aff idavit of indige nce in trial court and “[n] o one contested that
aff idavit, meaning its effe ct as to Villanueva ’s ability to pa y costs is conclusive; she is indige nt as

a matter of law”) ; Retzlaff v. C o u rteau , No. 03-00-00321- CV, 2001 WL 194054, at *4 (Tex.

I n this Court, however, a ppellees f iled a timely

contest t o Hunter’ s appellate aff idavit of 4 indige nce. We abate d the c au s e t o the t rial court, which held a hearing and sust ained the contest. Hunter filed a mot ion for ex tension of t ime to appea l that ruling , asking for six ty addi t i o n al d ay s. Be cause of the short timelines provided in the rules, see Tex. R. App. P. 20.1(j), we g rante d in part, g iving her a ten-da

y exten s i o n , an d then denied her second motion, which ag ain soug ht six ty additional d ay s , an d h er subsequent motions to strike and to rec onsider. Thus, Hunter is not considere d indige nt on appea l.
4App.—Austin Fe b. 28, 2001, no pet.) (not desig nated for publication) (“A n uncontested aff idavit of inability to pay costs is conclusive as a

matter of la

w.”)

. A cause that is dismiss ed for want of prosec ution shall be reinstated if the trial court
finds that the party ’s failure t o ap p ea r for a hear ing or trial “wa s not intentional or the result of
conscious indiffer ence but w as due to an acc ident or mistake or that the failure has been otherwise

rea sonably explained.” Tex. R. Civ. P. 165a(3)

. Hunter’ s motion was verifie d and timely filed, and 5
there fore , the trial court cler k was require d to de liver a copy of the motion to the trial court, which

was require d to “set a hear ing on the motion as soon as prac ticable.” See id

. Hunter was n o t require d to set the hear ing or even to reque st one. See Enriquez v. Livingston , 400 S.W .3d 610, 620 (Tex. App.—Austin 2013, pet. denied) (“w e hold that a timely and proper ly v er i fied motion to
reinstate require s the trial court to hold an oral hear ing on the motion without reg ard to whether the

A motion to reinstate is due thirty day s afte r dismiss al. Tex. R. Civ. P. 165a(3)

. Hunter’ s 5 motion was file-stampe d by the trial court cler k on September 26, 2014, thi rt y -t wo d ay s afte r dismiss al, an d appellee s argue that the m otion was therefor e not timely filed. Howeve r, although Hunter’ s motion does not include a cer tification or other statement of the date on which she mailed the motion and the trial court cler k did not includ e i n t h e re cord a copy of the envelope and its postmark, the motion is dated September 22 and includes a cer tificate of service stating that it was serve d on opposing counsel on September 22. Fur ther, Hunter’ s appellate brief, which is sworn to, states that she mailed her motion via United States Postal Service priority mail on September 22 (we do not believe that it is meaning ful that the trac king numbe r Hunter provided returns no results in an online sear ch). On this rec ord, it appea rs that the motion was timely under the mailbox rule. See id. R. 5 (docume nt place d in mail on due date is considere d timely if rec eived wi t h i n ten day s of mailing) ; see also Lofton v. Allstate Ins. Co. , 895 S.W .2d 693, 693-94 (Tex. 1995) (attorne y ’s uncontrove rted aff

idavit may be evidenc e of date of mailing) ; Jacobs v. State , 115 S.W .3d 108, 111- 12 (Tex. App.—Texarkana 2003, pet. ref ’d) (inmate’s cer

tificate of service stated document was mailed two day s befor e deadline; there fore , mailbox rule applied and document was timely ); Arnold
v. Shuck, 24 S.W .3d 470, 472 (Tex. App.—Texarkana 2000, pet. denied) (af fidavit by leg al assistant was sufficie nt to extend time under mailbox rule); Childs v. W ard , No. 14-96-00355- CV, 1997 WL 427043, at *2 & n.1 (Tex. App.—Housto n [ 1 4 t h Di st] J uly 31, 1997, no writ) (not desig nated for publication) (ne ither re cord nor inmate’s brie f included swor n statement of date of mailing ).
5movant obtains a setting, prepa res and files a fi at , s ends a letter to the trial judge , or otherwise

reque sts an ora l hear ing by some communication direc tly to the trial court” ); see also Thordson v. City of Houston , 815 S.W .2d 550, 550 (Tex. 1991) (“G iven the rule and the lang uag e of [ Gulf Coast
Inve stment Corp. v. NASA 1 Business Center , 754 S.W .2d 152 (Tex. 1988)], it was not within the
discretion of the trial court to fail to ho l d an o ra l h ea ring on the motion to reinstate. There is no dispute that Thordson did proper ly reque st a hear ing. Although the g rounds of attorney nonfea sance stated in his motion may not trig g er mandatory re instatement of his claim under rule 165a(3) , he,

never theless, is entitled to a hear ing on his motion.”); Gulf Coast Inv. Corp. , 754 S.W .2d at 153 (“a n oral he aring is require d on any timely filed motion to reinstate under Tex. R. C iv. P. 165a”). Appellee s argue that we should hold that the trial court’s failure to hold a hear ing on

a motion to reinstate was harmless err or. See Preslar v. Garcia , No. 03-13-00449-CV, 2 0 1 4 W L 824201, at *3-4 (Tex. App.—Austin Fe b. 26, 2 0 1 4 , n o pet.) (mem. op.). I n this case , howeve r, unlike Preslar , there was no hear ing or other proce eding from which rele vant fac ts could be g leane d

or revie wed. Wit hout suc h information, we cannot evalua te the harmlessne ss of the failure to hold

a hear ing under rule 165a(3)

. See id. (bec ause Preslar participa ted in hear ing on motion to dismiss
and d i d n o t prese nt new arg uments in motion to reinstate, failure to hold hear ing on motion to
reinstate was harmless err or); see also Tarvin v. Texas Dep’ t of Crim. Justice , No. 03-11-00351- CV,
2013 WL 4056197, at *1 (Te x . App.—Austin Aug . 9, 2013, no pet.) (me m. op.) (“tr ial court must
hold an oral hear ing” upon rec eipt of proper and timely motion to reinstate; reve rsed for hear ing on motion to reinstate)

. Ba sed on this re cord, we cannot conclude that the trial court’s failure to hold
a hea ring on Hunter’ s motion t o reinstate w as har mless.

6Conclusion
The trial court cler

k was obligated to deliver Hunter’ s motion to reinstate to the trial

co u rt , wh i ch was then require d to conduct a hear ing on the motion. See Tex. R. Civ. P. 165a(3 ).
The trial court err ed in not holding such a hear ing. See id .; Thordson , 815 S.W .2d at 550; Enriquez , 400 S.W .3d at 6 2 0

. W e there fore reve rse the cause and rema nd it to the trial court for further

proce eding s consistent with this opi nion. 6

__________________________________________ David Pury ear , J ustice
Be fore J ustices Pury ear , Pemberton, and B ourland Dissenting O pinion by

J ustice Pemberton
Reverse d and Remande d Filed: January

14, 2016

We deny Hunter’ s “Or igina l Ver ified Mot ion to P ro ce ed I n For ma P auper is Pursuant to 6 Texas Rule of Appellate Procedur e Rul e 2 0 et s eq .,” filed on November 4, 2015, and dismiss all other pe nding motions.
7