Full Opinion

NUMBER 13-25-00544-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG IN THE INTEREST OF J.R.M., A CHILD ON APPEAL FROM THE 389TH DISTRICT COURT OF HIDALGO COUNTY, TEXAS MEMORANDUM OPINION Before Chief Justice Tijerina and Justices Silva and Cron Memorandum Opinion by Justice Cron In this attempted appeal from an order of dismissal for want of prosecution (DWOP order), J.M. argues the trial court reversibly erred by failing to conduct a hearing on his “verified” motion to reinstate, and requests that we reverse the DWOP order and remand with instructions to the trial court to conduct a hearing on his motion. 1 However, because we conclude that the motion was not properly verified, J.M.’s notice of appeal was 1 We use an alias to refer to the appellant in this appeal because it arises out of a motion to modify a suit affecting a parent-child relationship. See TEX. FAM. CODE § 109.002(d); see also TEX. R. APP. P. 9.8(b). untimely, and we, thus, dismiss his appeal for want of jurisdiction. See TEX. R. APP. P. 42.3. I. BACKGROUND On August 4, 2025, the trial court held a DWOP hearing wherein J.M. appeared pro se. After J.M. discussed his efforts to obtain another attorney and canceled mediations that had occurred, the trial court dismissed the case. That same day, the trial court signed the DWOP order. Four days later, a motion to reinstate, together with an affidavit, was filed. The body of that motion states: 1. On August 5, 2025[ 2], this matter was dismissed by the Court for want of prosecution. 2. On August 4, 2025, a Motion for Docket Control Conference was filed by Co-Respondent’s Attorney, indicating active intent to move the case forward. 3. [J.M.] has now retained counsel, Reynaldo Garza, to assist in the preparation of this matter and to ensure timely advancement of the case. 4. The parties have previously attended meditation, which was unsuccessful, and [J.M.] now seeks a trial setting to resolve the remaining issues. 5. The dismissal was not due to any intentional delay or conscious indifference on the part of [J.M.] The record reflects that the case was active as of August 4, 2025, and all the parties were engaged in litigation efforts. 6. [J.M.] is ready and willing to proceed with trial and requests that the Court reinstate the case to the docket so that a trial setting may be obtained. The affidavit stated: 2 The record shows the DWOP order was signed by the trial court on August 4, 2025. 2 Reynaldo G. Garza, III appeared in person before me today and stated under oath that he is above the age of eighteen years and is fully competent to make this affidavit; that he is the attorney for [J.M.] in this case, and, as such, has authority to make this affidavit; that he has read the above Motion to Reinstate Case on Docket; and that every statement contained in it is within his personal knowledge and is true and correct. The record before us does not indicate that a hearing was held on the motion, and this attempted appeal ensued. II. DISCUSSION A. Standard of Review and Applicable Law We review a trial court’s denial of a motion to reinstate for an abuse of discretion. Gillis v. Harris County, 554 S.W.3d 188, 193 (Tex. App.—Houston [14th Dist.] 2018, no pet.). “A trial court abuses its discretion if it acts without reference to any guiding rules or principles—that is, if its act is arbitrary or unreasonable.” Brown v. Sanders, No. 02-21- 00212-CV, 2022 WL 2071782, at *2 (Tex. App.—Fort Worth June 9, 2022, no pet.) (mem op.) (citations omitted). Rule 165a(3) governs motions to reinstate following a dismissal. TEX. R. CIV. P. 165a(3); see In re Mast, No. 13-23-00305-CV, 2023 WL 5486359, at *3 (Tex. App.—Corpus Christi–Edinburg Aug. 23, 2023, orig. proceeding) (mem. op.). This rule serves as the sole procedural mechanism for a party to seek reinstatement of a case that has been dismissed for want of prosecution. Hart v. San Jacinto River Auth., 731 S.W.3d 700, 704 (Tex. App.—Houston [14th Dist.] 2026, no pet.); see Twist v. McAllen Nat. Bank, 294 S.W.3d 255, 264 (Tex. App.—Corpus Christi–Edinburg 2009, no pet.) (citation omitted). Rule 165a(3) requires that a motion to reinstate “shall set forth the grounds and be verified by the movant or his attorney.” TEX. R. CIV. P. 165a(3). However, Rule 165a does not define “verified.” See id. R. 165a. A motion to reinstate must also be 3 filed within thirty days after the order of dismissal is signed or within the period provided by Rule of Civil Procedure 306a. Id. R. 165a(3), 306a; see Baker v. City of Austin, No. 03- 24-00356-CV, 2024 WL 3941060, at *1 (Tex. App.—Austin Aug. 27, 2024, no pet.) (mem. op.) (citation omitted). “A substitute for verification suffices if it meets the requirements for verification and is filed within thirty days of the trial court’s order dismissing the case for want of prosecution.” Young v. Di Ferrante, 553 S.W.3d 125, 130 (Tex. App.—Houston [14th Dist.] 2018, pet. denied) (citations omitted). B. Analysis On August 8, 2026, well within Rule 165a(3)’s thirty-day window from the date of the August 4, 2026 DWOP order, J.M. filed a motion to reinstate, which included an affidavit from Garza, J.M.’s attorney. See TEX. R. CIV. P. 165a(3) (stating in relevant part that a “motion to reinstate shall set forth the grounds therefor and be verified by the movant or his attorney”). However, as discussed below, Garza’s affidavit cannot be said to serve as an effective substitute for verification because Garza lacked personal knowledge of the pertinent assertions made in the motion. See Young, 553 S.W.3d at 128 (citations omitted) (“Though the rule does not expressly require that the verification be based on personal knowledge, courts have held that verifications must be based on personal knowledge.”); Hosea v. Whittenburg, 311 S.W.3d 704, 705 n.1 (Tex. App.— Amarillo 2010, pet. denied) (stating in relevant part that “there was no affidavit or anything that could be said to serve as an effective substitute for verification”). To explain, although Garza avers to having “personal knowledge” of the contentions made in the motion, the record before us reveals his involvement in the case arose after it was already dismissed. Stated another way, as far as we can tell, Garza is 4 unable to speak to any actions he pursued on J.M.’s behalf or how he otherwise diligently prosecuted the case before its dismissal. See Guest v. Dixon, 195 S.W.3d 687, 689 (Tex. 2006) (per curiam) (“[W]e think the motion in this case was properly verified because it was supported by the affidavit of Guest’s attorney for much of the time the case was pending, who was aware of the facts regarding its prosecution. That was sufficient to satisfy Rule 165a.”); Stephens v. Darnell, No. 12-04-00346-CV, 2006 WL 408207, at *1– 2 (Tex. App.—Tyler Feb. 22, 2006, no pet.) (mem. op.) (reversing and remanding for a hearing on appellant’s motion to reinstate after explaining, in relevant part, that appellant’s counsel stated in his affidavit that “he had personal knowledge of all facts stated therein. He explained the history of the case, including the fact that it was filed in 1991 and he was not aware of its existence until 2001, and his actions in pursuing the case. He stated that he has prosecuted the case with due diligence and has not acted in a consciously indifferent manner.”). Tellingly, the motion points to three instances to arguably demonstrate that the case was active, but Garza was not involved in any of them. First, a motion for docket control conference that was filed by a “Co-Respondent’s Attorney” on August 4, 2025. Second, a failed mediation by the parties, but our review of the record reveals J.M. was represented by a different attorney (a Darlene Vale) at that time. Third, the “record” shows “the case was active as of August 4, 2025, and all the parties were engaged in litigation efforts,” but Garza’s first appearance in the case occurred four days later, after dismissal, on August 8, 2025. As such, we can deduce that Garza’s affidavit is impermissibly based on his status as J.M.’s counsel as opposed to his own personal knowledge of even some of the facts while the case was pending. See Twist, 294 S.W.3d 262 (“[A] verification that does not indicate that the person signing the affidavit has 5 personal knowledge of at least some of the facts is no verification at all.”); Saint Val v. Hill, No. 14-20-00811-CV, 2022 WL 3592469, at *2 (Tex. App.—Houston [14th Dist.] Aug. 23, 2022, no pet.) (mem. op.) (“Though the rule does not expressly require that the verification be based on personal knowledge, courts have held that verifications must be based on personal knowledge.” (citation omitted)); Brown v. Dallas County, No. 05-96- 01192-CV, 1998 WL 35481, at *3 (Tex. App.—Dallas Feb. 2, 1998, no pet.) (mem. op.) (“A party’s attorney may verify the motion where he has knowledge of the facts, but an attorney does not have authority to verify based merely on his status as counsel.”); see also Cantu v. Holiday Inns, Inc., 910 S.W.2d 113, 116 (Tex. App.—Corpus Christi– Edinburg 1995, writ denied) (explaining in the context of Texas Rule of Civil Procedure 93 that “[c]ounsel does not show any basis in the pleading or in her affidavit for her personal knowledge of relevant facts”); Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008) (“An affidavit showing no basis for personal knowledge is legally insufficient.” (citations omitted)). Our deduction is buttressed by the fact that J.M. proceeded pro se at the August 4, 2025 DWOP hearing, and by the sentence in the August 8, 2025 motion that J.M. has “now retained” Garza to “assist in the prosecution of this matter and to ensure timely advancement of the case.” Therefore, J.M.’s motion was not properly verified. See TEX. R. CIV. P. 165a. And because J.M.’s motion was not supported by a sufficient substitute, i.e., not properly verified as discussed above, his notice of appeal was due thirty days after the trial court signed the DWOP order. Id. R. 306a(1); TEX. R. APP. P. 26.1; Twist, 294 S.W.3d at 260 (“If a motion to reinstate is not verified or supported by a sufficient substitute for the verification, it is ineffective to extend the trial court’s plenary power or the appellate 6 timetable.” (citations omitted)); Saint Val, 2022 WL 3592469, at *2 (“Because Saint Val’s Motion to Reinstate was not verified or supported by a sufficient substitute for verification, the motion did not extend the timetable for filing a notice of appeal.”). However, J.M.’s notice of appeal was filed on October 22, 2025, which was seventy-nine days after the DWOP order was signed. Thus, J.M. failed to timely perfect his appeal. III. CONCLUSION Accordingly, we dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 2, 26.1, 42.3. 3 JENNY CRON Justice Delivered and filed on the 5th day of November, 2026. 3 Even if J.M. had timely filed his notice of appeal, he did not invoke Rule 165a and its hearing requirements because he failed to properly verify his motion to reinstate. See Wright v. R.R. Comm’n of Texas, No. 01-22-00490-CV, 2023 WL 4003302, at *4 (Tex. App.—Houston [1st Dist.] June 15, 2023, no pet.) (mem. op.) (“Wright also complains that the trial court should have held a hearing on his October 23, 2020 motion to reinstate. Where a motion to reinstate is timely filed and properly verified following a dismissal of a suit for want of prosecution, an oral hearing is required under Texas Rule of Civil Procedure 165a. Here, however, Wright did not properly verify his motion. Thus, Wright did not invoke Rule 165a and its hearing requirements.” (citation modified)); see also In re Marriage of Salas, No. 12-12-00237-CV, 2012 WL 5031429, at *2 (Tex. App.—Tyler Oct. 17, 2012, no pet.) (mem. op.). Additionally, we observe that in the one case J.M. directs us to, the Supreme Court of Texas agreed that the petitioner was entitled to a hearing on his properly-verified motion to reinstate, but the motion here was not properly verified. See Thordson v. City of Houston, 815 S.W.2d 550, 550 (Tex. 1991) (per curiam) (“[P]etitioner, complains that the trial court’s failure to hold a hearing on his timely-filed, properly verified motion to reinstate was an abuse of discretion because it is required by Texas Rule of Civil Procedure 165a. We agree and reverse and remand this cause to the trial court for a hearing on the motion to reinstate.”) (emphasis added). 7