TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
ON REHEARING
NO. 03-08-00693-CV
Bruce Wayne Houser, Appellant
v.
Douglas Dretke, Director, Texas Department of Criminal Justice, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
NO. D-1-GN-05-004567, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant Bruce Wayne Houser appeals from a district court judgment dismissing his lawsuit for want of prosecution. See Tex. R. Civ. P. 165a; Tex. R. Jud. Admin. 6. After dismissing the instant appeal as untimely, this Court reinstated the appeal based on appellee's statements that any delays in Houser's filings were excusable. See Houser v. Dretke, No. 03-08-00693-CV, order on reh'g at 2-3 (Tex. App.--Austin May 12, 2009), available at http://www.3rdcoa.courts. state.tx.us/opinions/HTMLopinion.asp?OpinionID=18094.
On rehearing, Houser asserts that the district court improperly dismissed his suit for want of prosecution on August 28, 2008. Appellee has filed a letter brief stating that he does not contest Houser's assertions "as it appears that Appellant adhered to all the applicable rules and orders by the District Court." Our review of the record confirms appellee's statements.
The record demonstrates that Houser filed the underlying suit as an application for writ of mandamus on November 16, 2005, with a motion for emergency court hearing. Houser claims that he received notice from the district court clerk that his case would be dismissed for want of prosecution on December 14, 2007, unless he filed a motion to retain on or before that date. Although it does not show a file stamp date, the appellate record includes a motion to retain that was executed and mailed by Houser on December 9, 2007. The district court took no action with respect to the motion to retain and subsequently dismissed Houser's suit for want of prosecution on August 28, 2008.
Based on the record before us and appellee's statements that he does not contest Houser's claim that the district court improperly dismissed the underlying lawsuit for want of prosecution, we conclude that the district's court's judgment dismissing Houser's suit with prejudice was in error. Accordingly, we vacate the district court's judgment and remand this cause to the district court for further proceedings.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Pemberton and Waldrop
Vacated and remanded
Filed: January 7, 2010