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800 S.W.2d 194

McConnell v. May

Texas Supreme Court

Decided January 9, 1991

Texas Supreme Court · decided 1991-01-09

Key passage — most relied on by later courts

“3. Reinstatement. A motion to reinstate shall set forth the grounds therefor and be verified by the movant or his attorney. It shall be filed with the clerk within 30 days after the order of dismissal is signed or within the period provided by Rule 306a. A copy of the motion to reinstate shall be served on each attorney of record and each party not represented by an attorney whose address is shown on the docket or in the papers on file. The clerk shall deliver a copy of the motion to the judge, who shall set a hearing on the motion as soon as practicable. The court shall notify all parties or their attorneys of record of the date, time and place of the hearing. The court shall reinstate the case upon finding after a hearing that the failure of the party or his attorney was not intentional or the result of conscious indifference but was due to an accident or mistake or that the failure has been otherwise reasonably explained. In the event for any reason a motion for reinstatement is not decided by signed written order within seventy-five days after the judgment is signed, or, within such other time as may be allowed by Rule 306a, the motion shall be deemed overruled by operation of law. If a motion to reinstate is timely filed by any party, the trial court, regardless of whether an appeal has been perfected, has plenary power to reinstate the case until 30 days after all such timely filed motions are overruled, either by a written and signed order or by operation of law, which”

quoted by 4 later decisions, including Silguero v. State, Young v. Di Ferrante

Relies on Butts v. Capitol City Nursing Home, Inc. · George v. George · Christopher v. Fuerst

Good law ✅— No negative treatment on recordhow we know

Decided 1991-01-09

How this case has been cited

Cited by 31 later decisions — most recently June 2018 · most notably in the Interest of K.M.L., a Child (2014), Carrera v. Marsh (1993)

31 state decisions

130199120002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

PER CURIAM.

¶1 In this original proceeding, Relator Gary L. McConnell (McConnell) seeks a writ of mandamus directing the trial judge to vacate his July 2, 1990 order granting Plaintiff C.D. Blanchard’s unverified motion to reinstate. Pursuant to Rule 122 of the Texas Rules of Appellate Procedure, without hearing oral argument, a majority of the court conditionally grants the writ of mandamus.

¶2 On April 18, 1990, Blanchard’s suit against McConnell was dismissed for want of prosecution. On April 24, 1990, Blanchard filed an unverified motion to reinstate. On July 2, 1990, the trial judge granted Blanchard’s motion. McConnell argues that the trial judge abused his discretion when he granted Blanchard’s unverified motion to reinstate. We agree.

¶3 “A motion to reinstate shall set forth the grounds therefor and be verified by the movant or his attorney. It shall be filed with the clerk within 30 days after the order of dismissal is signed_” TEX.R.CIV.P. 165a(3) (emphasis added). A proper motion to reinstate must be verified and filed with the clerk within 30 days of the signing of the order of dismissal. Butts v. Capitol City Nursing Home, Inc., 705 S.W.2d 696, 697 (Tex.1986). See Christopher v. Fuerst, 709 S.W.2d 266, 268 (Tex.App.—Houston [14th Dist.] 1986, writ ref'd n.r.e.); George v. George, 564 S.W.2d 172, 174 (Tex.Civ.App.—Tyler 1978, no writ); Matter of Marriage of Parr, 543 S.W.2d 433, 437 (Tex.Civ.App.—Corpus Christi 1976, no writ). Since Blanchard did not file a verified motion to reinstate within 30 days of the signing of the order of dismissal, the trial court’s jurisdiction to reinstate the case expired. See Butts, 705 S.W.2d at 697; Christopher v. Fuerst, 709 S.W.2d at 268.

¶4 Pursuant to Rule 122 of the Texas Rules of Appellate Procedure, without hearing oral argument, a majority of the court conditionally grants the writ of mandamus. The writ will issue only if the trial judge refuses to act in accordance with this opinion.

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