### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N
ON MOTION F OR REHEARING

NO. 03-11-00791- CV
Juan E nriqu ez, A ppellan t

v. Brad Livi ngston, in his O ff icial Capacity as the Executive Direc tor of the Texas Depart m ent of Crim inal Ju stice; Rick Thal er; John Ru pert; Brian Tu cker; and David Lan gston, Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 200 TH JUDICI AL DISTRICT NO. D-1 -GN-1 0-0 0155 9, H ONO RAB LE LO RA J. LI VINGSTO N, JUDGE P RESIDING

NO. 03-11-00792- CV

Juan E nriqu ez, A ppellan t

v. Brad Livi ngston, in his O ff icial Capacity as the Executive Direc tor of the Texas Depart m ent of Crim inal Ju stice; Rick Thal er; John Ru pert; Brian Tu cker; and David Lan gston, Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 419 TH JUDICI AL DISTRICT NO. D-1 -GN-1 0-0 0199 6, H ONO RAB LE LO RA J. LI VINGSTO N, JUDGE P RESIDING

D I S S E N T I N G O P I N I O NI n light of the arg uments prese nted by the State in its motion for rehe aring reg arding

the timeliness o f E n ri q u ez ’s motion to reinstate, I can no longe r conclude that the district court abused its discretion when it denied the motion without an oral hear ing. Be cause the majority holds otherwise, I

respe ctfully

dissent. We are to revie w a dismiss al for want of prosec ution and the subsequent denial of

a motion to reinstate under an abuse- of-discr etion standard. See Smith v. Babcoc k & W ilcox Constr. Co. , 913 S.W .2d 467, 467-68 (Tex. 1995); State v. Rotello , 671 S.W .2d 507, 509 (Tex. 1984); Brown Mec h. Servs. v. Mountbatten Sur. Co. , 377 S.W .3d 40, 44 n.1 (Tex. App.—Houston [1st Dist.] 2012,

no pet.); W

elborn v. Ferrell Enters. , 376 S

. W

. 3 d 9 0 2 , 906 (Tex. App.—Dallas 2012, no pet.). A trial court abuses its discretion i f i t acts in an arbitra ry or unrea sonable manner without ref ere nce to any gu i d i n g ru les or principles. W alker v. Gutierrez , 111 S.W .3d 56, 62 (Tex. 2003); Downer

v. A quamarine Operators, Inc. , 701 S.W .2d 238, 241-42 (Tex. 1985); Cappetta v. Herme s , 2 2 2 S

. W

. 3 d 1 60, 164 (Tex. App.—San Antoni o 2006, no pet.). When revie wing matters that are committed to the trial court’s discretion, a court o f ap p ea ls may not substitut e its own judgme nt for the trial court’s judgme nt. W alker , 111 S.W .3d at 63 (citing Flores v. Fourth Court of Appeals , 777 S.W .2d 38, 41-42 (Te x . 1989)).

Moreove r, when the record does not con t ai n finding s of fact or conclusions of law specify ing the rea sons for the trial court’s judgme nt, we must aff irm the judgme nt on any applicable leg al t heory supported by the record. See W orford v. Stamper , 801 S.W .2d 108, 109 (Tex. 1990); Sellers v. Foster , 199 S.W .3d 385, 391 (Tex. App.—For t Worth 2006, no pet.); W illiams v. Texas Dep’ t of Crim. Justice-

Inst it u ti o n a l D iv

. , 1 7 6 S. W.3d 590, 593 (Tex. App.—Ty ler 2005, pet. denied)

. We are to defe r to the trial court’s fac tual deter minations and imply any fac t finding s that are 2nece ssary to support the trial court’s judgme nt, so long as such finding s are supported by the rec ord.

See Rosemond v. Al-Lahiq , 331 S.W .3d 764, 7 6 6 (T ex . 2 011) (per curiam); BMC Software Belg., N.V. v. Marchand , 83 S.W .3d 789, 795 (Tex. 2002); W orford , 801 S.W .2d at 109. I n this case , the nece ssary finding in support of the j udg ment is that the motion to reinstate was not timely filed. As the majority observe s, “an oral hear ing is require d on any timely filed motion to reinstate under T ex . R

. C i v . P

. 165a.” Gulf Coast Inv. Corp. v. NASA 1 Business Center , 754 S.W .2d 152, 153 (Tex. 1988). Be cause t h i s rule is mandatory , “it [i s] not within the d i s cre tion of the trial court to fail to hold an oral hear ing on the motion to reinstate.” Thord s o n v. Houston , 815 S.W .2d 550, 550 (Tex. 1991) (per curiam); Dur bin v. Muchow , 309 S.W .3d 758, 760 (Tex. App.—B eaumont 2010, no pet.). Howeve r, for this rule to apply , there must be a timely filed motion to reinstate. I n the absenc e of a timely filed motion to reinstate, the trial court’s plenar y power over the case expires thirty day s afte r the order of dismiss al. See Tex. R

. C i v . P

. 1 6 5 a( 3 ); Mem ’l Hosp. of Galveston County v. Gillis , 741 S.W .2d 3 6 4 , 365 (Tex. 1987) (per curia m); In re GMC , 296 S.W .3d 813, 820 (Tex. App.—Austin 2009, no pet.). After the trial court’s plenar y power expires, it can take no further action on the case . See Tex. R. Civ. P. 329b(d); Emerald Oaks Hotel/Conf. Ctr., Inc. v. Zardenett a , 776 S.W .2d 577, 578 (Tex. 1989); W alker v. Harrison , 597 S.W .2d 913, 915 (Tex. 1980); Florance v. State , 352 S.W .3d 867, 874 n.5 (Tex. App.—Dallas 2011, no pet.); In re Montemay or , 2 S.W .3d 542, 544-46 (Tex. Ap p . — S an Antonio 1999, orig

. proce eding ); s ee a l

s o In re Boke loh , 21 S.W .3d 784, 792 (Tex. App.—Houston [14t h Dist.] 2000, orig

. proce eding ) (holding that order reinst at i n g case more than thirty day s afte r dismiss al was void).

3I n this case , the trial court’s order of dismiss al was signe d on Augus t 2 4 , 2011.

Thus, in order f

or Enrique z’s moti on to reinstate to be c onsidered timely , it could be filed no later than September 23, 2011. See Tex. R. Civ. P. 165a(3)

. The majority conclude s that the motion was timely filed, relying on statements made by Enriquez in his cer tificate of service and “mailbox filing verific ation” tending to show that th e m o t i o n was delivere d to prison officia ls for mailing on the last day it c ould be timely filed, September 23, 2011. I ag ree that under the prisoner mailbox rule, Enriquez’s s t at em en t s constitute “some measure of proof” that the motion was timely filed. See Ramos v. Richardson , 228 S.W .3d 671, 673 (Tex. 2007); W arner v. Glass , 135 S.W .3d 681, 684 (Tex. 2004). But Enriquez’s statements are not conclusive p ro of of that fac t. Cf

. Tex. R. App. P. 9.2(b)( 2) (listing ty

pes of evidenc e that appellate courts consider “conc lusive proof of the date of mailing” ; cer

tificate of service not incl uded in list). And Enriquez’s statements are controve rted. T h er e is evidenc e in the rec ord from which the district court could have impliedly found that Enriquez’s statements wer e false. Specifica lly , th e fi l e- stamp date on the motion is October 12, 2011, which is 19 da

y s after the September

23 deadline. E nriquez’s previous filing, his motion to reta in the case , was filed by the district cler k on J une 24, 2011, which was within seven day s of the alleg ed date of mailing. The district court could have impliedly found that if Enriquez had delivere d his motion to prison officia ls when he claimed he did, it would have been filed by the cler k’s office within a s i m i l ar time period as his previous filing, or at least within a shorter time period than 19 day s later. See, e.g. , Houston v. Lack , 487 U.S. 266, 269 (1988) (filing was rec eived by cler k’s office one day

afte r filing deadline) ; Ramos , 228 S.W .3d at 672 (conc luding that it wa s “log ical to

4assum e” that filing was place d in mail when appellant said it was beca use filing was rec eived by cler k one day later) ; W arner , 135 S.W .3d at 683 (filing was seve n day s late). 1 Given the conflicting evidenc e in the rec ord conce rning the timeliness of the motion to reinstate, I believe that the district court was in a better position than this Court to re s olve the conflict and deter

mine the truth or falsity of Enriquez’s statements reg arding the date of mailing. See W arner , 135 S.W

. 3d at 686 (re manding to the trial court (not the appellate court) for “a finding of the date Warner d ep o s i t ed h i s petition in the prison mail sy stem”). Be cause the rec ord in this

case supports the district co u rt ’s finding that Enriquez’s statements wer e false, I cannot conclude that the district court abused its discretion in deny ing Enriquez’s motion to reinstate without holding

a hear ing. Acc ording ly , I would g rant t h e motion for rehe aring and aff irm the district court’s 2 judgme nt of dismissal. Bec ause the majority does not, Irespe ctfully

dissent.

__________________________________________ Bob Pembe rton, J ustice Be fore Chief J ustice Jones, J ustices Pemberton a nd Rose Filed: Mar ch 20, 2013

I express no opinion a s to w hether a filing that is 19 day s late could be considere d timely 1 filed under the prisoner mailbox rule in other case s. I conclude only that in this case , the district court did not abuse its discretion in failing to hold an oral hear ing on the motion to reinstate based on a

n implied finding that Enriquez’s s tatements concerning the date of mailing we re f

alse. See also W

oods v. Quorum Hotels & Resorts, LTD , No. 02-12-00043- CV, 2013 Tex. App. 2 L EXIS 9 4 6 , at *11 (Tex. App.—For t Worth J an. 31, 2013, no pet. h.) (mem. op.) (holding that beca use appellant did not timely file her motion to reinstate, “the trial court could not have err ed by failing to g rant it”); Lewis v. Capital One Auto Fin. , No. 01-10-00447- CV, 2011 Tex. App. L EXI S 5845, at *12 (Tex. App.—Houston [1st Dist.] J ul. 28, 2011, no pet.) (holding that beca use appellants “fa iled to file their motion to reinstate by t he 30-day deadline, the trial court did not abuse its discretion by

allowing their motion to reinstate to be ove rruled by opera tion of law”)

. 5