NO. 07-06-0127-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL B OCTOBER 24, 2006

______________________________ THE STATE OF TEXAS, APPELLANT

V. 1997 FORD EXTENDED CAB PICKUP VIN: IFTDX17W 7VKB79078 THREE T HOUSAND NINE HUN DRED AND EIGHTY-ON E DOLLARS (3, 981.00), APPELLEE

_________________________________ FROM THE 320 TH DISTRIC T COURT O F POTT ER COUNTY; NO. 92,455-D; HONORABLE D ON EMERSON , JUDGE

_______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORA NDUM OPIN ION
The State of Texas appeal s the dismiss al for want of prosecution of a s uit for forfeiture of a vehicle an d cash brough t under Chapter 59 of the Code of Cri minal Procedure. We dismiss the app eal for want of jurisdicti on.
The Stat e sei zed th e pro pert y a t iss ue in July 2004 after a seri es of purchases of controlled substances by undercover

police officers. It filed its orig inal petitio n in this act ion in August 2004, and obtained pers onal serv ice on one clai mant and a default judg ment2

against her. The State obta ined serv ice on the secon d claimant by publicat ion in April 2005, and an attorney was appointed fo r that claimant three mont hs later. On December 5, 2005, the trial court set a he aring on the State’s motion f or j udg ment

fo r January

24, 2006.
When the State’s attorne y failed to appe ar at the hearing, the trial court dismiss ed the case t he same day. The State sought reinstatement i n a document entitl ed Motion for New Trial in w hich counsel explained h is failure to appear was due to his ov ersight i n failing to recognize a schedu ling c onflict. The cour t held a hearin g on the motion F ebruary 15, 2006, atwhich thetrial judg e inquired into the calendaring procedur es maintained by the prosecutor’s office. On being informed t hatthe office did no t maintain a central calenda r, the judge informed counsel he wo uld grant t he motion if counsel showed a central cal endar had been established in the follo wing week. A March 13 letter from counsel recited his efforts to comply w ith the court’ s directiv e butstated he had been unsuccessful. Counsel also stated he had never previ ously mis sed a hearing and had been late onl y on one occasion in t hirteen yea rs of practice.
Areply from t he trial judge the foll owing day corr ectly char

acterized the motion for
new trial as a motion seeking reinstatemen t under Rule of Civil Procedure 165a. He concluded his power

to act on the moti on was li mited to a perio d of 30 days af ter t he dismissal and the expir ation of that perio d precluded the g rant of the State’smotion.
Rule of Civil Procedure 165a authorizes a trial court to dismiss acivil case for wan t of prosecution w hen a party s eeking affirmativ e relief fails to appear at a hear ing or trial of3

which the party had notice. See Alexander v. L ynda's Boutique , 134 S.W.3d 845, 850 (Tex. 2004) (applying rule).
Rule 165a(3) gov

erns 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 d enied) . That rule req uires a timel y motion to r einstate w hich sets forth the grounds on which it is based an d is ver ified. The ver ification req uirement may no t be avoided by desig nating the moti on as one for a new trial. City of

McAllen v

. Ramir ez , 875 S.W.2d 702, 705 (Tex.A pp.--Corpus Christi 1994, no wr it). A verified motion to reins tate extends the trial court's pl enary power. Polk v. Southwest Crossing Homeowners Ass'n , 165 S

. W. 3d 89, 95 (Tex.A pp.–Houston [14th D ist.] 2005, pet. denied). An unv erified motion does not exte nd the trial court’s ple nary power or the ti me f or perfecting appeal. Butts v. Capitol City Nursing Home, Inc. , 705 S.W.2d 696, 697 (Tex. 1986). In the absence of verificat ion, the State’s motion was noteffective to ex tend the time for perfecti ng appeal and its April 11, 2006 notice of appeal was untimel y. T EX . R. A PP . P. 26.1. Our authorit y on appeal is dependent on a timel y notice of appeal

. See Verburgt v. D orner , 959 S.W.2d 615, 617 (Tex. 1997)

(applyi ng former rul e). Accordi ngly, w e dismiss theappeal for want of jurisdicti on.

James T. Campbell Justice