Unreported / Non-Citable
Background
J.M. attempted to appeal an order dismissing his case for want of prosecution. The appeal arose from a motion to modify a suit affecting the parent-child relationship, and the court used an alias for the appellant under Texas Family Code § 109.002(d) and Texas Rule of Appellate Procedure 9.8(b). The underlying order came from the 389th District Court of Hidalgo County, Texas.
The trial court held a dismissal-for-want-of-prosecution hearing on August 4, 2025. J.M. appeared pro se and discussed his efforts to obtain another attorney and mediations that had been canceled. The trial court dismissed the case and signed the DWOP order that same day. Four days later, on August 8, 2025, J.M. filed a motion to reinstate accompanied by an affidavit from attorney Reynaldo G. Garza III.
The motion asserted that the case had been active before dismissal, that a co-respondent’s attorney had filed a motion for a docket control conference, that mediation had been unsuccessful, that J.M. had not intentionally delayed the case or acted with conscious indifference, and that J.M. had “now retained” Garza and was ready to proceed to trial. Garza’s affidavit stated that he was J.M.’s attorney, had authority to make the affidavit, had read the motion, and that every statement in it was within his personal knowledge and was true and correct. The appellate record did not indicate that the trial court held a hearing on the motion.
The Court’s Holding
The Thirteenth Court of Appeals dismissed the appeal for want of jurisdiction under Texas Rule of Appellate Procedure 42.3. Although the court identified abuse of discretion as the ordinary standard for reviewing denial of a motion to reinstate, its disposition rested on appellate jurisdiction and the effectiveness of the reinstatement motion, not on a factual substantial-evidence review of the merits.
Texas Rule of Civil Procedure 165a(3) requires a motion to reinstate to state its grounds and be verified by the movant or the movant’s attorney. The court held that Garza’s affidavit was not an effective substitute for verification because the record showed no basis for his personal knowledge of the relevant pre-dismissal events. His involvement began after dismissal: J.M. appeared pro se at the August 4 hearing, the motion itself said Garza had “now retained” been retained, and Garza first appeared in the case on August 8. The earlier docket-control motion had been filed by a co-respondent’s attorney, and J.M. had been represented by Darlene Vale during the unsuccessful mediation.
Relying on the principle that an attorney cannot verify merely by virtue of being counsel, the court distinguished cases in which counsel had actual knowledge of the case’s prosecution. Because the motion was not properly verified, it did not extend the trial court’s plenary power or the appellate timetable. J.M.’s notice of appeal therefore was due thirty days after the DWOP order was signed. It was filed October 22, 2025—seventy-nine days after the order—and was untimely.
The court also rejected J.M.’s requested hearing-based relief in a footnote. Even if the notice of appeal had been timely, the improperly verified motion did not invoke Rule 165a’s hearing requirements. The court distinguished Thordson v. City of Houston, which required a hearing on a timely filed, properly verified motion, because J.M.’s motion lacked proper verification.
Key Takeaways
- The appeal was dismissed for lack of jurisdiction; the court did not reverse the DWOP order or order a reinstatement hearing.
- A recital that counsel has “personal knowledge” is insufficient when the record shows counsel became involved only after dismissal and supplies no basis for knowing the relevant pre-dismissal facts.
- An unverified or inadequately verified Rule 165a(3) motion does not extend the appellate filing deadline.
- The hearing ruling was tied to this defective verification; the court did not eliminate the hearing requirement for timely, properly verified reinstatement motions.
Why It Matters
The opinion underscores that verification is a substantive jurisdictional prerequisite in this procedural setting, not a formality cured by counsel’s signature and a general personal-knowledge statement. Attorneys retained after a DWOP dismissal should establish an actual evidentiary basis for verification and independently calculate the notice-of-appeal deadline rather than assume that filing a reinstatement motion extends it.
The opinion’s analysis contains inconsistent 2026 references when describing the August 4 DWOP order and August 8 filing, but its background, chronology, and untimeliness calculation identify those events as occurring in 2025. The notice of appeal was filed October 22, 2025, and the opinion was delivered and filed November 5, 2026.