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Reversed and Remanded and Memorandum Opinion filed
March 29, 2007.

In The

Fourteenth Court
of Appeals

____________

NO. 14-05-00409-CV

____________

MICHAEL
SCOTT, Appellant

v.

CORRECTIONAL OFFICER SMITH
and

CORRECTIONAL OFFICER JOHN
DOE, Appellees

On Appeal from the 240th District Court

Fort
Bend County, Texas

Trial Court Cause No. 02-CV-126907

M E M O R
A N D U M   O P I N I O N

This is an appeal from an order
dismissing the case for want of prosecution. In a single issue, appellant
asserts that the trial court=s notice of its intention to
dismiss the case was inadequate. We reverse and remand.

On November 1, 2002, appellant,
an inmate incarcerated in the Institutional Division of the Texas
Department of Criminal Justice, filed suit against appellees for assault
and battery. On January 18, 2005, the trial court dismissed the suit for
want of prosecution. Appellant did not file a motion to reinstate the
case. He filed a timely motion for new trial, however, which was overruled
by operation of law. Appellant then filed a pro se notice of appeal and an
affidavit of inability to pay costs on appeal.

Appellant filed a pro se brief
in which he raises a single issue asserting that the trial court failed to
give him adequate notice that his case was subject to dismissal. The
record contains the trial court=s notice to appellant that his
case was set on the civil dismissal docket for Thursday, December 16,
2004. The notice advised appellant that if he wished to retain the case on
the court=s docket, he was required to
file a motion to retain the case by 4:00 p.m. on the Tuesday immediately
preceding the date the case was set on the dismissal docket.[1] The
notice advised appellant that failure to file a response would result in
dismissal for want of prosecution. Appellant acknowledged in his brief
that he received the court=s notice.

Appellant filed a timely motion
to retain on December 13, 2004, the Monday before the dismissal docket.[2] In
addition, he asserted that discovery had not been completed and he filed a
comprehensive discovery plan, setting a June 16, 2005, deadline for
completion of discovery. He certified that he forwarded a copy of the
comprehensive discovery plan to opposing counsel on November 22, 2004.
Appellant complains the court=s notice was defective because
it failed to warn him that his case could be dismissed despite his taking
the steps outlined in the notice. He cites Villarreal v. San Antonio
Truck & Equipment, where the Texas Supreme Court held that a
dismissal notice was inadequate because it misled appellant to believe
that if he complied with the required action set out in the notice, his
case would be retained on the docket. 994 S.W.2d 628, 630 (Tex.
1999).

We review a trial
court=s order of dismissal for want
of prosecution under an abuse of discretion standard. MacGregor v.
Rich, 941 S.W.2d 74, 75 (Tex. 1997). A trial court abuses its
discretion when it acts in an arbitrary and unreasonable manner, or when
it acts without reference to any guiding principles. Beaumont Bank,
N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). A trial court has no
discretion in determining what the law is or applying the law to the
facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). A clear
failure by the trial court to analyze or apply the law correctly will
constitute an abuse of discretion. Id.

A trial court=s authority to dismiss for want
of prosecution stems from the express authority of rule 165a of the Texas
Rules of Civil Procedure as well as from the court=s inherent power to manage its
own docket. Villarreal, 994 S.W.2d at 630; 3V, Inc. v. JTS
Enterprises, Inc., 40 S.W.3d 533, 541 (Tex. App.CHouston [14th Dist.] 2000, no
pet.). A trial court may dismiss under Rule 165a on the Afailure of any party seeking
affirmative relief to appear for any hearing or trial of which the party
had notice,@ Tex. R. Civ. P. 165a(1), or when
a case is Anot disposed of within the time
standards promulgated by the Supreme Court . . . .@ Tex. R. Civ. P. 165a(2). In
addition, under the common law, the trial court has the inherent power to
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.

A party must be provided with
notice and an opportunity to be heard before a court may dismiss a case
for want of prosecution under either Rule 165a or its inherent authority.
See Tex. R. Civ. P.
165a(1) (ANotice of the court=s intention to dismiss and the
date and place of the dismissal hearing shall be sent by the clerk to each
attorney of record, and to each party not represented by an attorney . . .
.@); General Elec. Co. v.
Falcon Ridge Apartments, Joint Venture, 811 S.W.2d 942, 943 (Tex.
1991). The failure to provide adequate notice of the trial
court=s intent to dismiss for want of
prosecution requires reversal. Villarreal, 994 S.W.2d at
630.

Appellees respond to
appellant=s assertion that the notice was
inadequate by arguing that the trial court acted within its discretion in
dismissing the case because appellant had not complied with the time
guidelines set forth in the Texas Rules of Judicial Administration, which
require district and statutory county judges to ensure that civil cases
are tried or disposed within 18 months of the appearance date. See
Tex. R. Jud. Admin. 6(b),
reprinted in Tex.
Gov=t
Code Ann., tit.2,
subtit. F app. (Vernon 2005). Appellant filed his petition in November
2002, appellees answered in April 2003, and the case was dismissed in
January 2005 for want of prosecution. Appellees argue that
Villarreal does not control because in contrast to this case, there
was no assertion in Villarreal that the case should be dismissed
for violation of the Texas Supreme Court time standards. See
Villarreal, 994 S.W.2d at 935, n.4. We reject appellees= contention. Although violation
of time standards was not urged in Villarreal, the Supreme Court
noted that Aadequate notice of the
court=s intent to dismiss on this
ground is also required.@ Id. No such notice was
provided in this case.

Following Villarreal,
this court held in 3V, Inc. that a notice of dismissal must specify
the basis for the dismissal and inform a plaintiff if the court is
considering dismissal under the court=s inherent power for failure to
prosecute. 40 S.W.3d at 543 (citing Villareal, 994 S.W.2d at 632)
(holding trial court abused its discretion by invoking its inherent
authority to dismiss for failure to prosecute diligently after appellant
complied with the requirements of the dismissal notice). We found that the
dismissal notice in 3V, Inc. was indistinguishable from the notice
in Villarreal. ALike the Villarreal
order, it notifies the plaintiff that only one act can remove the case
from the dismissal docket. In Villarreal, that one act was
announcement of ready for trial; here, that one act was the filing of a
final order.@ 3V, Inc., 40 S.W.3d at
543. Similarly, the notice in this case advised appellant that to retain
his case on the docket, he was required to file a motion to retain and a
discovery plan, if discovery had not been completed in his case. Appellant
complied with the notice.  Therefore, we hold the trial
court=s notice was inadequate to
advise appellant that the case could be dismissed despite his compliance
with the requirements of the dismissal notice.

Courts of appeal, including
this court, have held that if a trial court conducts a hearing on a motion
to reinstate, an appellant=s due process rights are
satisfied, curing an insufficient notice of intent to dismiss. See,
e.g., Polk v. Southwest Crossing Homeowners Ass=n, 165 S.W.3d 89, 95 (Tex.
App.CHouston [14th Dist.] 2005, pet.
denied) (holding that any notice error was cured because appellant
ultimately received notice and an opportunity to be heard in connection
with her motion to reinstate); Texas Sting, Ltd. v. R.B. Foods,
Inc., 82 S.W.3d 644, 648 (Tex. App.CSan Antonio 2002, pet. denied)
(holding that plaintiff was afforded his due process rights because he
received actual notice of the dismissal order in time to file a motion to
reinstate and a hearing was held on the motion); Franklin v. Sherman
I.S.D., 53 S.W.3d 398, 403 (Tex. App.CDallas 2001, pet. denied)
(holding that no harmful error is shown when a hearing on a motion to
reinstate is held, providing appellant an opportunity to satisfy the same
burden of proof he would have had before the order of dismissal was
signed).

In this case, appellant filed
only a motion for new trial instead of a motion to reinstate.[3] No
hearing was held on the motion, and it was overruled by operation of law.
Appellant was not afforded an opportunity to be heard. Thus, the trial
court=s defective notice was not
cured.

Accordingly, we sustain
appellant=s sole issue. We reverse the
judgment of the trial court and remand for further proceedings.

PER CURIAM

Judgment rendered and Memorandum Opinion filed
March 29, 2007.

Panel consists of Chief Justice Hedges and
Justices Fowler and Edelman.

[1]  Specifically, the court=s notice stated the following:

Court records of the 240th Judicial District Court
in Richmond, Fort Bend County, Texas, indicate that you are an attorney of
record or a party pro se in the civil case listed above. Judge Tomas R.
Culver, III, has set the case on the CIVIL DISMISSAL DOCKET for
December 16, 2004, at 9:00 a.m. in the 240th District Courtroom. If you
wish to retain said case on the Court=s docket, ACTION on your part is required
as follows:

1.
CASE CURRENTLY SET FOR HEARING: File a sworn Motion to Retain
stating the date of the current setting for the case; or

2.
DISCOVERY COMPLETED, CASE NOT YET SET FOR HEARING/TRIAL: File a
sworn Motion to Retain certifying that:

a.
Discovery is completed,

b.
Settlement attempts were unsuccessful,

c.
The case is ready for trial, and

d.
Your estimate as to the length of time for trial of the case in chief;
or

3.
DISCOVERY NOT COMPLETED: File a sworn Motion to Retain AND a
proposed Comprehensive Discovery Plan, which Plan must specifically
calendar any remaining discovery. You are required to contact opposing
counsel, if any, prior to filing such Plan. The Court will approve such
Plan on submission on the date set out above, subject to any necessary
modifications, which will be heard at a later date.

Any document required to be filed by you must be
filed with the Fort Bend County District Clerk by 4:00 p.m. on the Tuesday
immediately preceding the date set out above for the Dismissal Docket. The
Court will consider all such documents timely filed and in compliance with
these required actions on a submission basis without your appearance being
necessary at the call of the Dismissal Docket. Late-filed documents will
be considered at the time and date set for the Dismissal Docket. Failure
to file any document required herein will result in said case being
DISMISSED FOR LACK OF PROSECUTION.

(emphasis in original).

[2]  The motion to retain is unsworn, but it is
signed under Apenalty of perjury.@ Inmates are permitted to satisfy verification and
affidavit requirements by substantially complying with the requirements
for an unsworn declaration. Tex.
Civ. Prac. & Rem. Code Ann. ' 132.001 (Vernon 2005) (permitting inmates to
substitute unsworn declarations subscribed under penalty of perjury in
place of affidavits); Smith v. McCorkle, 895 S.W.2d 692, 692 (Tex.
1995).

[3]  Unlike a motion to reinstate, a trial court
is not required to conduct a hearing on a motion for new trial. See
Tex. R. Civ. P. 165a(3)
(AThe clerk shall deliver a copy of the motion [to
reinstate] to the judge, who shall set a hearing on the motion as soon as
practicable.@); Tex. R.
Civ. P. 329b(c) (permiting motions for new trial to be Adetermined@ by written order or overruled by operation of
law).