1 W e note that the Depa rtment did n ot favor us w ith an a ppellate brief res pond ing to th at of Carr. NO. 07-02-0314 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L C NOVEM BER 26, 2003

______________________________ CHARLE S L. CAR R, Appellant

v. TEXASDEPA RTMENT O F CRIMIN AL JUSTIC E, Appellee

_________________________________ FROM THE 108 TH DISTRICT COURT OF POTTER COUN TY;

NO. 86,950-E; H ON. ABELOPEZ, JU DGE

________________________________ Memor andum Opi

nion

________________________________ Before JOHNS ON, CJ., and QUINN and R EAVIS , JJ. Appellant Charles L. Carr (Carr), an indigent i nmat e in the Texas De partme nt of Criminal Justice (the Depart m ent), appeals from an order dismissing his suit for w ant of prosecution. Th ro ug h t wo issues, he contendstha t th e tr ial c our t ab use d its

disc ret ion in 1) dismissing the caus e, 2) granting the Departm ent’s m otion to quas h hi s deposition
no ti ce s, an d 3 ) f ai l i ng to ru l e o n o th er mot i on s f i l ed by hi m. 1 We affi rm thedism iss al.2 Issue One -- Dismis

sal for Want of P

rosecut ion Standard of Revi

ew W hether the trial court erred in dismissing the suit depends upon whether it abused its discretion. MacGregor v. Rich , 9 41 S.W .2 d 7 4, 75 (T ex. 1997). It abusesits discretion when it acts without refe rence to any guiding rules or pr inciples or if th e action isarbitrary
or unreasonable. Koslow’s v. Macki e, 796 S.W.2d 700, 704 (Tex. 1990); Nawas v. R & S Vendi ng , 920 S.W.2d 734, 737 (Tex. App.--H ouston [1st Dist.] 1 99 6, n o w rit ). Furthermore, if, as here, the order of dism issal specifies no reason for the dism issal other than for want of

pro sec utio n, t he d ism iss al m ust be a ffir m ed if

any proper ground supports the decision. Shook v. Gi lmore & Tatge Mfg. Co., 951 S.W .2d 294, 296 (T ex. App.--W aco 1997, pet. denied). Thus, the appellant has thebur den to a ddr

esseac h po ssi ble reason for dism iss al and explain why none support the dism issal. See i d. (stating that one seeking reinstateme ntbears the burden to show that the standard for reinstatem ent has been m et for a ll possible groun ds). Next, a trial court may dismiss a suit fo r w ant of prosecution 1) because a party seeking affirmative rel ief fai led to appe ar for any hearing or t ri al of which the party h ad notice, 2) because the cas e was no t disposed of w ithin the time standards p romulgated bythe Supreme Court in its Administr ative Rules, or 3) through the ex ercise of its inherent power due to the lack of diligence. Villarreal v. San Antonio Truck & Eq uip. , 994 S.W.2d 628, 630 (Tex. 1999); see T EX . R. C IV . P. 165a(1) & (2) (discussing the authority of the trial court to dismiss as provided by rule of procedure). That the plaintiff may be acting prose
m attersnot for those representing them selves have the duty to prosec ute their claims w ith3

due diligence just as do all other litigants. Cole man v. Lynaugh, 934 S.W.2d 837, 838 (T ex. App.--Houston [1 stDist.] 1996, nowrit). Finally, the central issue to be addressed is whether the plaintiff exerc ised due diligence. MacGregor v. Rich , 941 S.W.2d at 75. Appli cati on of Standard In applying the foregoing authority to the circum stances at bar, w e first note that the Rules of Judicial Administration dire ct t hat civ il ca sesw her

ein a jury h as been requested sho uld be disposed ofwithin 18 months of the appeara nce date. T EX . R. J UD . A D MIN . 6b, reprinted in . T EX . G OV ’ T C ODE A NN ., tit. 2, subtit. F app. (Vernon 1998). Here, the record sh ows that Carr initiated suit in May of 1999. The Departm ent appeared, by filing a mot ion to transfer the cause an d an answer, on October 18 , 1999. T he caus e was e ven tua lly dismissed on J uly 2, 2002. The application of aut hor ity and sim ple arithmetic principles to the aforem entioned dates reveals several things. F irs t, the cause had bee n pending (without disposition) on the t rial court ’s dock et for m uch m ore than 18 m onths after the Departm entappeared. Seco nd, because it was not disposed of w ithin that period, Suprem e Court authority entitled the trial court to dism iss it. Carr arg ues , how eve r, t hat

he d iligen tly pur

sue d hisclaim by

requestin g discovery, amend ing his pleadings, s eeking mediation, and filing various mot ions such as for sanctions, to j oin parti es, and to com pel discovery. Yet, review of the record illustrates that, aside from asking the trial court to send the cause to mediation shortly before it was dismissed, the last of hi s efforts to prepar e the cause for di spositi on cu lm in ated in or around Septem ber of 2001, or som e nine months

before the cause w

as dismissed for want of pro sec utio n. I n at

tem ptin g toex plain why t he cause lay dorm ant for that period, he does2 Regarding the motion to join, nowhere does he 1) allege in i t that he was somehow prev ented from joini ng the person mentioned therei n or 2) explain why he n eeded the court’s interce ssion . Indeed, it appears that he could hav e simply amended his live pleadin g to ad d the in dividual. Yet, he d id not. And, aside from servi ng a n ot ice of his intent to take de positions by written interrogato ry, nothing appe ars of record establishing that he

ser ved anyone

with any other formal request for discoverywhich compl ied with the Rules of Civil Pro ced ure . So , it is questionable whether he was e ntitl ed to sanctions or an order to compel du e to the Department ’s supposed fail ure to produce document s and respon d to interrogatori es. And, as to the deposition, he thought he was entitled to sanctions and an or der t o compel (although the tri al court had previous lyquashed the notice) because he expected the Departm entor oth ers to ar ra ng e a nd pa y fo r t he m. It was his obligation to arra nge h is own dis covery, not th at of his o ppon ent or the cou rt. As to his “Motion to I nvoke Rule,” he apparently s ought an o rder deeming ans wers to admissions ; yet, in that v erysam e moti on he qu ote s the portion of the Rules of Ci v il Proc edure declaring that admissions are considered admit ted if

responses

thereto are untim ely and without necessity of court intervent ion

. Finall y, nowhere does appellant ex pl ai n how t he r esol uti on of the se m oti ons or any oth ers s o mehow condition ed his

duty to dilig en tly prepare or otherwise prevented hi m f rom prepari ng for tri al. Nor does he allege that he had no other av enues avail able to him down w hich he could j ourney to ful fi ll hi s obligation.

3 We further not e the absence of any all egation suggesting that he was unable to act (due to hi s priso ner status

or oth erw ise) d uring th e interim. 4 notsa y t ha t h e wa s p re pa re d f or an d me rely awai ted trial. Indeed, the record does not reflect that he even requested that his dispute be set for trial. Instead, hecontends that the delay was caused by the tria l cou rt’ s re fus al toact upo n va riou s m otio ns s uch as to j oin parties, to com pel discovery, and for sanctions. Yet, a nd a ssu m in g arguendothat they
wereof any

substance, C arr acknow ledged that he could have pursued their resolution through mandamus and opted not to util ize that avenue. 2 In other w ords, he opted to do nothing fo r nine months despite his duty to act di lige ntly. 3 Sim ilarly abs ent fro m his explanation for the delay is any sugges tion that dis covery has been com pleted or that he has been unab le to com plete discovery through the m eans afforded by the rules of civil procedure. Rather, he wanted the trial court to refer the case to me diation since he was “willing to consider areasonable settleme nt out of court” and sho uld that not com e about “allow discovery to proce ed.” W hat discover y h e contem plated, why

he did not com plete it before, how long it would take himto com plete5

it, and w hat

he p urp ort ed to ob tain thr oug h it all went unad dressed. Nor does h e specify what “discovery issues” m ust be resolved before the cau se can “proceed.” The only ones reflected in the record pertain to his mot ion for sanctions and to com pel discovery, butfor the reasons m entioned in our footnote 3, we perceive them to be u nte nab le asw ell as litt le obstacle to the preparation of his claims

. Nor are we told w hy his “twelve requests for the docket” ex

emplify diligence. Indeed, the record does no tillustrate that any ca m e with in the nine-m onth period before dism iss al. Nor does it evince w hythe tria l c ourt clerk’s purported refusal to respond to them prevented him from conducting discovery, preparing for trial, or requesting a trial setting. In sum , Carr had the obligation to do that reasona bly neces sary

to secure the final disp osit io n of h is c laim . Th e re cor d co nta ins e vide nceupo n w hich thetria l cou rt could have relied in determining that he did not fulfill hi s duty. And, b ecause the suit had not been disposed of w ithin 18 months f rom t he date the Departm ent m ade its appearance, legal authority provided the trial court basis to act. A ccordingly, because its decision to dismiss w

as not w ithout basis in law or fact, the trial court did not abuse its discretion. Having disposed of

issue one as we did re nders moot issue two. Accordingl y, we affirm the o rder dismissing for w ant of prosecution.

Brian Quinn Justice6