Affirmed and Memorandum Opinion filed July 16, 2015.

In The

Fourteenth Court of Appeals

NO. 14-14-00443-CV

ANTONIO SEPEDA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 122nd District Court

Galveston County, Texas

Trial Court Cause No. 14-CV-0014

MEMORANDUM OPINION

Appellant Antonio Sepeda asserts that the trial court erred in dismissing for 

want of prosecution his petition for expunction of his criminal records. In four 

issues, Sepeda contends the trial court erred by (1) dismissing his petition for want 

of prosecution, (2) refusing to provide requested findings of fact and conclusions 

of law, (3) failing to hold the required hearing on his motion to reinstate, and 

(4) denying his constitutional right to access the courts of this state. We affirm.
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BACKGROUND

In January 2014, Sepeda, a pro se inmate incarcerated in the Institutional 

Division of the Texas Department of Criminal Justice, filed petitions for 

expunction of criminal records pursuant to Texas Code of Criminal Procedure 

article 55.01. Our record contains only one petition for expunction on Sepeda’s 

arrest for assault of a family member, although his cover letter indicates that he 

filed multiple petitions. According to this petition, the charges on this 

misdemeanor arrest had been previously dismissed. Sepeda also filed a declaration 

of inability to pay costs. The Galveston County District Clerk immediately 

responded to Sepeda’s petitions, providing a letter that explained:

The above referenced causes of action were filed on January 6,

2014. Your cover letter did not request any setting to be scheduled by

the respective courts, nor did you request the clerk of court to issue

service if any, when a hearing has been scheduled.

If you request a hearing on each of the above matters please

make sure you file such request in EACH case independently as they

are separate causes of action. Also, you will need to provide service

addresses for the agencies listed as Data Services and AIS. You must

file any service request in each case respectively. You must provide

the clerk of court with 12 copies of each of the 4 petitions you filed. 

A copy is required for attachment to any Notice of Hearing the clerk

is requested to issue

On January 21, Sepeda responded to this notification by requesting free 

service because of his indigent status and asked the district clerk “to present the 

following Motions to the Trial Court for a rulings [sic]. (Petitioner’s motion to 

attend hearing by telephone conference call or other effective means.)” The 

attached motion to attend hearing provides, “Petitioner asks the court, should it 

determine that his presence is necessary at the hearing for expungment [sic], that 

the court allow him to attend hearing by telephone conference call, or any other 

effective means.” Sepeda also filed a “Motion and Notice of Motion for Judicial 
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Notice of Facts,” in which he requested an “Order of enforcement of rule that 

appl[ies] to inmates being indigent,” seeking free copies and service to all parties 

of interest. Finally, Sepeda filed a motion to consolidate his petitions for 

expunction under a single cause number. No ruling on any of these motions is 

contained in our record. 

Nearly three months later, on April 14, the trial court signed an “Order of 

Setting Hearing on Dismissal Docket.” The trial court ordered “a hearing on 

[Sepeda’s] cause for Dismissal for Want of Prosecution” set on May 14. This 

order stated that Sepeda’s cause would be dismissed for want of prosecution and 

required that all parties appear. The order stated that Sepeda should show the court 

why the case should be retained. In response, Sepeda filed a request to retain his 

case on the trial court’s docket, asserting that there was good cause to retain his 

case because (a) he had filed his petition pro se and in forma pauperis, along with 

the appropriate certification regarding his indigent status, (b) the court did not 

contest his indigency, and (c) he requested that the district clerk “waive” the cost 

of copies and “notify all parties in this matter.” He further urged that he had been 

diligent in pursuing matters with the court, that his petition should be liberally 

construed, that the misdemeanor indictments he was seeking to have expunged had 

been dismissed, and that he, as a prisoner, has a fundamental right to access the 

courts. In his prayer for relief, Sepeda asked the court to grant him “an extension 

to provide the extra copies in order for the Clerk to fullfill [sic] the serve [sic] 

process on interested parties” and to retain his case. Nowhere in his response did 

Sepeda request to attend the dismissal hearing, whether by telephone or otherwise.

On May 20, the trial court signed a dismissal order, which stated that the 

case had been placed on the dismissal docket, no party appeared at the May 14 

hearing, and the case was dismissed for want of prosecution. On June 9, Sepeda 
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filed a motion to reinstate,

1 a request for findings of fact and conclusions of law, a 

motion to attend any hearing by telephone,

2 and a notice of appeal. No findings 

and conclusions were signed by the trial court. This appeal followed.

ANALYSIS

A. Dismissal for Want of Prosecution

In his first issue, Sepeda asserts that the trial court erred by dismissing his 

expunction petition for want of prosecution.3

 We will reverse a trial court’s 

dismissal for want of prosecution only if the court clearly abused its discretion. 

MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex.1997) (per curiam). A trial court’s 

power to dismiss a case for want of prosecution stems from two sources: (1) Texas 

Rule of Civil Procedure 165a; and (2) the trial court’s inherent authority to manage 

its own docket. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 

(Tex. 1999); Gantt v. Getz, No. 14–10–00003–CV, 2011 WL 1849085, *4 (Tex.

App.—Houston [14th Dist.] May 12, 2011, no pet.) (mem. op.). As is relevant 

here, under Rule 165a, a court may dismiss a case for the “failure of any party 

seeking affirmative relief to appear for any hearing or trial of which the party had 

 

1 Although this motion is entitled “Plaintiff’s Verified Motion to Reinstate,” it was not 

properly verified. See Tex. Civ. Prac. & Rem. Code Ann. § 132.001(d) (providing requisites for 

inmate’s unsworn declaration) and discussion below.

2 Our record does not contain any rulings on these motions.

3 Sepeda asserts in his brief that he filed his expunction petition, requested that notice be 

issued as required by law, and requested that the trial court conduct a hearing 30 days from the 

filing. However, nothing in our record supports his assertions that he requested the trial court to 

notify anyone or conduct a hearing on his expunction petitions. Instead, in his petition, Sepeda 

suggested that the offense for which he had been arrested had been dismissed because the 

complainant had dropped the charges and that he “believed” he was entitled to expunction of this 

arrest record because it did not result in a final conviction. He listed several officials or agencies 

that might have records of this offense and asked the court to order all these officials or agencies 

to expunge the records pertaining to the charge. 
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notice.” Tex. R. Civ. P. 165a(1); see also Villarreal, 994 S.W.2d at 630; Gantt, 

2011 WL 1849085, at *4. 

Texas Code of Criminal Procedure article 55.02 requires that the trial court 

set a hearing on an expunction petition and give “reasonable notice of the hearing” 

to officials, agencies, or governmental entities named in the petition. See Tex. 

Code Crim. Pro. Ann. art. 55.02, § 2. But on appeal, Sepeda does not urge that the 

trial court erred by failing to set his expunction petition for a hearing, nor did he 

make that argument below. We may not reverse a judgment in a civil case based 

on unassigned error. See Pat Baker Co. v. Wilson, 971 S.W.2d 447, 450 (Tex.

1998) (per curiam); Izaguirre v. Rivera, No. 14-12-00081-CV, 2012 WL 2814131, 

at *2 (Tex. App.—Houston [14th Dist.] July 10, 2012, no pet.) (mem. op.). Thus, 

to the extent the trial court erred by placing Sepeda’s case on the dismissal docket, 

Sepeda has failed to assign error, and we may not consider this error as a ground

for reversing the trial court’s judgment.

Instead, Sepeda complains that the trial court dismissed his case for want of 

prosecution without conducting an oral hearing: “Before dismissing a case for 

want of prosecution A COURT SHOULD CONDUCT A ORAL HEARING AND 

GIVE THE PLAINTIFF THE OPPORTUNITY to present evidence.” But “[a]ll 

that Rule 165a(1) requires is notice of intent to dismiss and of a date, time, and

place for the hearing.” Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 852 (Tex. 

2004). The setting of Sepeda’s case on the trial court’s dismissal docket met these 

requirements. And in response to his case being set on the dismissal docket, 

Sepeda did not request to attend the dismissal hearing via telephone, bench 

warrant, or other means. See, e.g., In re D.D.J., 136 S.W.3d 305, 314 (Tex. 

App.—Fort Worth 2004, no pet.) (holding that trial court abused its discretion by 

failing to consider the appellant’s request to participate at trial by alternative 
6

means). Instead, as noted above, Sepeda filed a motion to retain in which he 

asserted there was “good cause” to retain his case, with no reference to article 

55.02 whatsoever or any indication that the trial court was required to set a hearing 

on his expunction petition.4

In short, the notice the trial court sent to Sepeda provided that his cause was 

being set on the dismissal docket and that a hearing would be held on May 14, 

2014, at 9:00 a.m. The court notified Sepeda that his case “will be dismissed for 

Want of Prosecution” and that “[a]ll parties must appear.” And it is undisputed 

that Sepeda had proper notice of the May 14 dismissal hearing and failed to appear. 

To the extent the trial court may have erred by placing Sepeda’s case on the 

dismissal docket, nothing in our record indicates that Sepeda informed the trial 

court of this error, nor has Sepeda complained of this error on appeal. See Tex. R. 

App. P. 33.1(a) (generally, to present a complaint for appellate review, record must 

show that the complaint was made to the trial court by timely request, objection, or 

motion stating with sufficient specificity the grounds for relief sought and that the 

trial court ruled on the complaint, either expressly or implicitly); Izaguirre, 2012 

WL 2814131, at *2 (appellate court may not reverse civil judgment on unassigned 

error). 

Under these circumstances, we conclude that the trial court did not abuse its 

discretion in dismissing Sepeda’s case for the failure to appear. See Tex. R. Civ. P. 

 

4 As discussed supra, in response to the district clerk’s notification that Sepeda had not 

set any of his expunction petitions for a hearing, Sepeda requested that he be permitted to attend 

the expunction hearing by telephone conference call or “other effective means” and asked that 

the clerk provide free copies of his petitions for service on the responding parties. He made no 

reference to article 55.02’s requirements. This response was filed well before the trial court 

placed Sepeda’s case on its dismissal docket, and nothing in our record indicates that Sepeda 

requested that he be permitted to attend the dismissal hearing via alternate means.
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165a(1); Villareal, 994 S.W.2d at 630; Gantt, 2011 WL 1849085, at *4. We 

overrule Sepeda’s first issue.

B. Findings of Fact and Conclusions of Law

In issue two, Sepeda urges that the trial court abused its discretion by failing 

to sign findings of fact and conclusions of law. In his brief, Sepeda asserts that he 

filed a notice of past due findings and conclusions. However, although the record 

reflects that Sepeda filed a request for findings and conclusions, it does not contain 

any notice of past due findings of fact and conclusions of law. See Tex. R. Civ. P. 

297. Because our record does not reflect that Sepeda filed a notice of past due 

findings and conclusions, Sepeda has waived the right to complain about the trial 

court’s failure to file such findings and conclusions. See Haley v. Harris Cnty., 

No. 14-11-01051-CV, 2012 WL 4955257, at *4 (Tex. App.—Houston [14th Dist.] 

Oct. 18, 2012, no pet.) (mem. op) (citing Curtis v. Comm’n for Lawyer Discipline, 

20 S.W.3d 227, 232 (Tex. App.—Houston [14th Dist.] 2000, no pet.)). We thus 

overrule Sepeda’s second issue.

C. Motion to Reinstate

In his third issue, Sepeda contends the trial court erred by failing to hold “the 

required hearing” on his motion to reinstate. A motion for reinstatement is the 

only remedy available to a party whose case has been dismissed for want of 

prosecution. Watson v. Clark, No, 14-14-00031-CV, 2015 WL 780563, at *1 (Tex. 

App.—Houston [14th Dist.] Feb. 24, 2015, no pet.) (citing Sierra Club v. Tex.

Comm’n on Envtl. Quality, 188 S.W.3d 220, 222 (Tex. App.—Austin 2005, no 

pet.)). A motion to reinstate must “set forth the grounds therefor and be verified by 

the movant or his attorney. . .” Tex. R. Civ. P. 165a(3). Sections 132.001 and 

132.002 of the Texas Civil Practice & Remedies Code permit inmates to file 

unsworn declarations that follow a prescribed form. See Tex. Civ. Prac. & Rem. 
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Code Ann. § 132.002(c), (e). The unsworn inmate declaration must (1) be in 

writing, (2) include a jurat in a particular form,5 and (3) be subscribed by the 

person making the declaration as true under penalty of perjury. See id.

Sepeda’s motion for reinstatement was not verified or otherwise 

accompanied by a proper unsworn declaration. The trial court, therefore, did not 

abuse its discretion by not considering his motion to reinstate. Cf. McConnell v. 

May, 800 S.W.2d 194, 194 (Tex. 1991) (per curiam) (orig. proceeding) (trial court 

abused its discretion when it granted unverified motion to reinstate). Accordingly, 

we overrule Sepeda’s third issue.

D. Access to Courts

Finally, in Sepeda’s fourth issue, he asserts the trial court abused its 

discretion by denying his constitutional right to access the courts. It appears in this 

issue that Sepeda urges that the trial court was required to (1) hold a hearing before 

 

5 An unsworn declaration made by an inmate must include a jurat in substantially the 

following form:

“My name is (First) (Middle) (Last) my date of birth is ____________, and 

my inmate identifying number, if any, is ________________. I am presently 

incarcerated in (Corrections unit name) in (City) , (County) , (State) (Zip 

Code) . I declare under penalty of perjury that the foregoing is true and correct. 

Executed on the day of (Month) , (Year) .

Declarant”

Tex. Civ. Prac. & Rem. Code Ann. § 132.001(e). 

Sepeda included some of this requisite information at the beginning of one of the 

documents attached to his motion to reinstate, but he failed to sign that declaration. Instead, he 

signed the following statement: “I Antonio Sepeda TDCJ #469585 certify and declare that issues 

and statements are part to this suit, Sepeda states he was diligence in prosecuting his suit. [A]ll

the same are true and correct. Executed on 03 day of June 2014.” This declaration does not 

meet the requirements for an unsworn declaration under Chapter 132.
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dismissing his case and (2) permit him to attend and present evidence at this 

hearing: “Appellant did not recei[]ve an opportunity to be heard nor to present 

evidence in his favor that he was diligently in prosecuting his suit, and the trial 

court acted arbit[r]arily, unreasonably, or without references to guiding principles.” 

But an inmate’s right to access the courts does not entail the right to personally 

appear for every proceeding. Ex parte Cephus, 410 S.W.3d 416, 421 (Tex. App.—

Houston [14th Dist.] 2013, no pet.) (citing In re Z.L.T., 124 S.W.3d 163, 164 (Tex. 

2003)). And here, as noted above, Sepeda failed to request to appear in person or 

by telephone in his motion to retain. Cf. In re Z.L.T., 124 S.W.3d at 166 (“[S]ince 

a prisoner has no absolute right to be present in a civil action, it follows that the 

prisoner requesting a bench warrant must justify the need for his presence.”). By 

failing to move to appear via bench warrant or by telephone, Sepeda did not 

“justify the need for his presence” at any hearing. See id. Further, to the extent 

that Sepeda urges error in the trial court’s failure to hold a hearing or permit his 

attendance on the basis of his unverified motion to reinstate, we have already 

determined that the trial court did not abuse its discretion in failing to consider that 

motion. 

In short, Sepeda failed to make the required showing that his presence was 

necessary at any hearing, and the trial court was not “required, on its own, to seek 

out the necessary information.” See id. Thus, the trial court did not “abuse its 

discretion” by denying Sepeda the right to access the courts in light of the failure 

of Sepeda to show that his presence was necessary at any hearing. We overrule 

Sepeda’s fourth and final issue.
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CONCLUSION

For the foregoing reasons, we affirm the trial court’s judgment.

/s/ Sharon McCally

Justice

Panel consists of Justices Boyce, McCally, and Donovan.