NO. 07-06-0127-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
OCTOBER 24, 2006
______________________________
THE STATE OF TEXAS, APPELLANT
V.
1997 FORD EXTENDED CAB PICKUP
VIN: IFTDX17W7VKB79078 THREE THOUSAND
NINE HUNDRED AND EIGHTY-ONE DOLLARS (3,981.00), APPELLEE
_________________________________
FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;
NO. 92,455-D; HONORABLE DON EMERSON, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
The State of Texas appeals the dismissal for want of prosecution of a suit for
forfeiture of a vehicle and cash brought under Chapter 59 of the Code of Criminal
Procedure. We dismiss the appeal for want of jurisdiction.
The State seized the property at issue in July 2004 after a series of purchases of
controlled substances by undercover police officers. It filed its original petition in this action
in August 2004, and obtained personal service on one claimant and a default judgment
against her. The State obtained service on the second claimant by publication in April
2005, and an attorney was appointed for that claimant three months later. On December
5, 2005, the trial court set a hearing on the State’s motion for judgment for January 24,
2006.
When the State’s attorney failed to appear at the hearing, the trial court dismissed
the case the same day. The State sought reinstatement in a document entitled Motion for
New Trial in which counsel explained his failure to appear was due to his oversight in failing
to recognize a scheduling conflict. The court held a hearing on the motion February 15,
2006, at which the trial judge inquired into the calendaring procedures maintained by the
prosecutor’s office. On being informed that the office did not maintain a central calendar,
the judge informed counsel he would grant the motion if counsel showed a central calendar
had been established in the following week. A March 13 letter from counsel recited his
efforts to comply with the court’s directive but stated he had been unsuccessful. Counsel
also stated he had never previously missed a hearing and had been late only on one
occasion in thirteen years of practice.
A reply from the trial judge the following day correctly characterized the motion for
new trial as a motion seeking reinstatement under Rule of Civil Procedure 165a. He
concluded his power to act on the motion was limited to a period of 30 days after the
dismissal and the expiration of that period precluded the grant of the State’s motion.
Rule of Civil Procedure 165a authorizes a trial court to dismiss a civil case for want
of prosecution when a party seeking affirmative relief fails to appear at a hearing or trial of
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which the party had notice. See Alexander v. Lynda's Boutique, 134 S.W.3d 845, 850
(Tex. 2004) (applying rule).
Rule 165a(3) governs reinstatement of the action when the dismissal is based on
the failure to appear. Clark v. Yarbrough, 900 S.W.2d 406, 408-09 (Tex.App.--Texarkana
1995, writ denied). That rule requires a timely motion to reinstate which sets forth the
grounds on which it is based and is verified. The verification requirement may not be
avoided by designating the motion as one for a new trial. City of McAllen v. Ramirez, 875
S.W.2d 702, 705 (Tex.App.--Corpus Christi 1994, no writ). A verified motion to reinstate
extends the trial court's plenary power. Polk v. Southwest Crossing Homeowners Ass'n,
165 S.W.3d 89, 95 (Tex.App.–Houston [14th Dist.] 2005, pet. denied). An unverified
motion does not extend the trial court’s plenary power or the time for perfecting appeal.
Butts v. Capitol City Nursing Home, Inc., 705 S.W.2d 696, 697 (Tex. 1986). In the absence
of verification, the State’s motion was not effective to extend the time for perfecting appeal
and its April 11, 2006 notice of appeal was untimely. TEX . R. APP. P. 26.1. Our authority
on appeal is dependent on a timely notice of appeal. See Verburgt v. Dorner, 959 S.W.2d
615, 617 (Tex. 1997) (applying former rule). Accordingly, we dismiss the appeal for want
of jurisdiction.
James T. Campbell
Justice
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