COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00255-CV

IN RE VALLIANCE BANK RELATOR

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ORIGINAL PROCEEDING

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OPINION ON RELATOR’S MOTION FOR EN BANC

RECONSIDERATION

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The court has considered the motion for en banc reconsideration filed by 

Relator Valliance Bank, the response filed by Real Parties in Interest Linda R. 

Tedesco and Lucille W. Shiver, and Relator‘s reply. We grant the motion for en 

banc reconsideration, withdraw our opinion of June 26, 2012, and substitute the 

following.
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BACKGROUND FACTS

Real Parties filed the underlying suit as plaintiffs on April 23, 2008. The 

trial court‘s record of filings reveals virtually no activity for two years other than 

requests for discovery. The trial court placed the suit on the dismissal docket for 

hearing on April 12, 2010, and issued a notice for the parties to present an 

agreed scheduling order at or prior to the hearing. Counsel for Relator and the 

other defendants appeared, but neither Real Parties nor their counsel appeared 

at the hearing, nor did anyone present a scheduling order to the trial court. 

Although the notice provided that failure to submit a scheduling order would 

result in dismissal for want of prosecution, the trial court did not dismiss the

lawsuit at that time.

The trial court placed the case on the status conference docket for hearing 

on May 24, 2010, and issued a notice instructing the parties to appear and be 

prepared to discuss the status of the case and to set pretrial and trial dates. The 

second notice stated that failure to appear would result in dismissal for want of 

prosecution. Neither Real Parties nor their counsel appeared at the hearing. 

The court placed the lawsuit on its status conference docket for July 12, 2010, 

and issued a notice of status conference, again warning that failure to appear 

would result in dismissal for want of prosecution. When neither Real Parties nor 

their counsel appeared for the third status conference hearing, the trial court 

signed its order dismissing the case for want of prosecution on July 12, 2010.
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On July 19, 2010, Real Parties timely filed a motion for reinstatement. The 

motion for reinstatement was signed by their counsel of record and set forth that 

he had a plumbing emergency on the date of the third scheduled hearing, that it 

took much of the day, and that in the rush to attend to the emergency he forgot to 

call the court, such that the failure to appear was not intentional nor the result of 

conscious indifference but was the result of mistake or accident. Although the 

motion and certificate of service were signed by Real Parties‘ counsel of record, 

he did not verify or swear to the facts contained in the motion. Instead, the 

motion contained an unsworn statement titled ―Verification‖ signed by another 

individual not identified either as a party or as counsel for Real Parties.

On August 12, 2010, thirty-one days after the order of dismissal was 

signed, Real Parties‘ counsel of record forwarded for filing a sworn affidavit dated 

August 12, 2010, setting forth and swearing to the same facts set forth in the 

motion to reinstate that he had previously filed. The clerk‘s computerized listing 

of documents filed shows that the affidavit was filed on August 13, 2010. 

Defendants, including Relator, filed written objections to the unsworn verification 

to the motion to reinstate and to the late filing and content of the affidavit of Real 

Parties‘ counsel. After a hearing on August 20, 2010, the trial court overruled the 

defendants‘ objections and signed an order granting reinstatement on September 

13, 2010.
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On April 2, 2012, Relator filed a motion to vacate the order reinstating the 

lawsuit, and the trial court denied the motion on June 8, 2012. Relator seeks by 

this mandamus proceeding to have the order reinstating the lawsuit vacated.

APPLICABLE LAW

A trial court has plenary power to reinstate a case within thirty days after it 

signs an order of dismissal for want of prosecution. Tex. R. Civ. P. 165a(3), (4); 

Neese v. Wray, 893 S.W.2d 169, 170 (Tex. App.―Houston [1st Dist.] 1995, no 

writ) (recognizing trial court has plenary power to reinstate case within thirty days 

of dismissal even in absence of motion to reinstate). A verified motion to 

reinstate a case filed within thirty days of a dismissal for want of prosecution 

extends the trial court‘s plenary power in the same manner as a motion for new 

trial. Tex. R. Civ. P. 165a(3), (4). The Supreme Court of Texas has made clear, 

however, that an unverified motion to reinstate is a nullity and does not extend 

the trial court‘s plenary jurisdiction or the time in which to file a notice of appeal. 

McConnell v. May, 800 S.W.2d 194, 194 (Tex. 1990) (orig. proceeding) (granting 

mandamus relief to set aside order reinstating case more than thirty days after 

dismissal on unverified motion); Butts v. Capitol City Nursing Home, Inc., 705 

S.W.2d 696, 697 (Tex. 1986). The time limits provided in rule 165a are 

mandatory and jurisdictional; orders of reinstatement entered after their 

expiration are void. Harris Cnty. v. Miller, 576 S.W.2d 808, 809 (Tex. 1979) (orig. 

proceeding); Danforth Mem’l Hosp. v. Harris, 573 S.W.2d 762, 763 (Tex. 1978)

(orig. proceeding); N-S-W Corp. v. Snell, 561 S.W.2d 798, 798 (Tex. 1977) (orig. 
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proceeding); see United Residential Props., L.P. v. Theis, No. 14-11-00330-CV, 

2012 WL 3573882, at *2 (Tex. App.―Houston [14th Dist.] Aug. 21, 2012, no 

pet.).

To extend the trial court‘s plenary jurisdiction beyond thirty days from the 

date of dismissal, rule 165a(3) requires that a motion to reinstate be ―verified by 

the movant or his attorney‖ and be filed within thirty days after the signing of the 

dismissal for want of prosecution. Tex. R. Civ. P. 165a(3); McConnell, 800 

S.W.2d at 194; Butts, 705 S.W.2d at 697; see Hosea v. Whittenburg, 311 S.W.3d 

704, 705 (Tex. App.―Amarillo 2010, pet. denied); Twist v. McAllen Nat’l Bank, 

294 S.W.3d 255, 260 (Tex. App.―Corpus Christi 2009, no pet.). The motion for 

reinstatement here was timely filed but not verified. Unless the late-filed affidavit 

of Real Parties‘ attorney—filed after thirty days had expired from the date of the 

dismissal order—sufficed as a substitute for a verification sufficient to support the 

factual averments in the motion to reinstate, the motion did not extend the trial 

court‘s plenary power, the order granting the motion to reinstate after the thirtyday period had expired is void, and mandamus relief is appropriate. See In re 

Brookshire Grocery Co., 250 S.W.3d 66, 68 (Tex. 2008) (orig. proceeding) 

(―Mandamus relief is appropriate when a trial court issues an order after its 

plenary power has expired.‖); Estate of Howley v. Haberman, 878 S.W.2d 139, 

140 (Tex. 1994) (orig. proceeding) (mandamus will issue when trial court 

erroneously reinstates case after expiration of its plenary jurisdiction); In re N.H.

Ins. Co., No. 02-12-00281-CV, 2012 WL 3264392, at *1–2 (Tex. App.—Fort 
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Worth Aug. 13, 2012, orig. proceeding) (mem. op.) (conditionally granting writ of 

mandamus to set aside void order reinstating suit after plenary power expired); In 

re Strickland, No. 01-01-00972-CV, 2002 WL 58482, at *2 (Tex. App.―Houston 

[1st Dist.] Jan. 17, 2002, orig. proceeding) (not designated for publication) 

(same).

UNSWORN VERIFICATION

A statement labeled ―Verification‖ was signed on the last page of the 

motion to reinstate, in which the signer stated that he had personal knowledge of 

the facts recited in the motion, but the signer was not Real Parties‘ counsel of 

record and is not identified as a party or as an attorney in the case, nor is the 

statement sworn to. A verification is ―[a] formal declaration made in the presence 

of an authorized officer, such as a notary public, by which one swears to the truth 

of the statements in the document.‖ Andrews v. Stanton, 198 S.W.3d 4, 8 (Tex. 

App.―El Paso 2006, no pet.) (quoting Black‘s Law Dictionary 1556 (7th ed. 

1999)); see also Frazier v. Dikovitsky, 144 S.W.3d 146, 149 (Tex. App.—

Texarkana 2004, no pet.) (stating ―verified‖ under rule 107 requires 

acknowledgement before a notary public‖); McGraw-Hill, Inc. v. Futrell, 823 

S.W.2d 414, 416 (Tex. App.—Houston [1st Dist.] 1992, writ denied) (op. on reh‘g) 

(stating that ―[a]n acknowledgment of an instrument before a notary public . . . 

verifies it for [the] record‖).1 The statement purporting to verify the motion to 

 

1Verification must be based on personal knowledge. Tex. R. Evid. 602 (―A 

witness may not testify to a matter unless . . . the witness has personal 
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reinstate does not reveal how the signer had personal knowledge of counsel‘s 

plumbing emergency or that he forgot to call the court.2

SIGNATURE OF COUNSEL

Nor was the signature of Real Parties‘ counsel of record on the motion 

itself a sufficient verification, as Real Parties argued at the hearing on the motion 

to vacate the reinstatement. An attorney‘s signature on a pleading certifies that 

he has read the document and that to the best of his knowledge, information, and 

belief, formed after reasonable inquiry, the instrument is not groundless and not 

brought in bad faith or for the purpose of harassment. See Tex. R. Civ. P. 13. 

The signature of the attorney is not the equivalent of a verification, which 

represents the facts to be true and based upon personal knowledge. See 

Luxenberg v. Marshall, 835 S.W.2d 136, 140 & n.3 (Tex. App.―Dallas 1992,

orig. proceeding) (distinguishing between groundless pleadings and false 

affidavits). Moreover, even if counsel‘s bare signature could be considered a 

 

knowledge of the matter.‖); see Marks v. St. Luke’s Episcopal Hosp., 319 S.W.3d 

658, 666 (Tex. 2010) (op. on reh‘g). A party‘s attorney may verify the pleading 

when he has personal knowledge of the facts, but he does not have authority to 

verify based merely on his status as counsel. Twist, 294 S.W.3d at 262 (holding 

personal knowledge required for verification of motion to reinstate); see Tex. R.

Civ. P. 14 (stating agent or attorney may verify facts). Cf. Gorrell v. Tide Prods., 

Inc., 532 S.W.2d 390, 395–96 (Tex. Civ. App.—Amarillo 1975, no writ) (holding 

that a company officer who did not have personal knowledge of certain matters 

could not deny them under oath since they would be hearsay as to him).

2

Incidentally, the verification also does not meet the requirements of civil 

practice and remedies code section 132.001, which allows for an unsworn 

declaration if the declaration meets the statute‘s requirements. See Tex. Civ. 

Prac. & Rem. Code Ann. § 132.001 (West Supp. 2012).
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verification, the motion signed by Real Parties‘ counsel of record contained no 

language indicating that he swore that the facts stated therein were true and 

were based on his personal knowledge. Cf. Residential Dynamics, LLC v. 

Loveless, 186 S.W.3d 192, 197 (Tex. App.—Fort Worth 2006, no pet.) (holding 

affidavit was valid without jurat because it contained acknowledgement and 

stated witness was ―sworn‖).

LATE-FILED AFFIDAVIT

Real Parties argue that the later-filed affidavit of their counsel of record 

should be considered sufficient verification. They cite Guest v. Dixon, 195 

S.W.3d 687, 688 (Tex. 2006), in which the supreme court held that the 

verification requirement of rule 165a(3) was satisfied by an affidavit of the 

movant‘s former attorney who had personal knowledge of most of the relevant 

facts needed to support an unverified motion to reinstate. Real Parties also point 

to several intermediate appellate court cases that signal a more liberal attitude 

toward what constitutes sufficient verification under rule 165a. See Twist, 294 

S.W.3d at 262 (―[A]n unverified motion to reinstate must be supported by an 

affidavit or other sufficient evidence in the record . . . .‖) (quoting Silguero v. 

State, 287 S.W.3d 146, 150 (Tex. App.―Corpus Christi 2009, orig. proceeding));

Andrews, 198 S.W.3d at 8 (holding timely-filed affidavit of counsel attached to 

motion sufficient substitute for verification of motion); Fed. Lanes, Inc. v. City of 

Houston, 905 S.W.2d 686, 689–90 (Tex. App.―Houston [1st Dist.] 1995, writ

denied) (holding timely-filed joint motion to reinstate within thirty days of 
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dismissal equivalent to a stipulation and satisfied rule 165a); see also In re 

Dobbins, 247 S.W.3d 394, 396–97 (Tex. App.―Dallas 2008, orig. proceeding) 

(holding, despite unverified motion and lack of any supporting affidavit, that 

combination of evidentiary hearing and court master‘s recommendation of 

approval of motion within the thirty-day period after dismissal constituted 

adequate substitute for verification).

Each of those cases is distinguishable. The affidavits held to constitute 

substitutes for verification of the motions to reinstate in those cases were all filed 

within the initial thirty-day period following the dismissal. In Dobbins, a hearing—

presumably with sworn testimony—was held within the initial thirty days and 

resulted in a recommendation by the master within that same time frame. In 

contrast, the affidavit of Real Parties‘ counsel of record was not filed until after 

the expiration of the thirty-day period, and the hearing on the motion to reinstate 

was not held until a month later. No affidavit or other evidence was filed within 

thirty days after the dismissal that could be construed as a substitute for proper 

and timely verification of the motion to reinstate as required by rule 165a(3) in 

this case. In other words, to ―cure‖ an unverified motion to reinstate, an affidavit 

or other evidence supporting the motion is acceptable, but it must be filed within 

the same thirty-day period as required for filing of the motion to reinstate. See In 

re Garcia, 94 S.W.3d 832, 833 (Tex. App.―Corpus Christi 2002, orig. 

proceeding) (holding mandamus would be granted because unverified motion to 

reinstate was not ―cured‖ by an affidavit filed after thirty days had expired); Owen 
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v. Hodge, 874 S.W.2d 301, 303 (Tex. App.―Houston [1st Dist.] 1994, no writ) 

(holding reinstatement properly denied on jurisdictional grounds when unverified 

motion to reinstate was filed within thirty days but movant did not seek leave to 

file verification until thirty-eight days after dismissal); see also In re Trinity 

Universal Ins. Co. of Kan., No. 04-06-00471-CV, 2006 WL 2819767, at *1–2 

(Tex. App.―San Antonio 2006, orig. proceeding) (mem. op.) (holding attorney‘s 

verification filed after thirty days had expired could not cure unverified motion, 

and attorney‘s signature on unverified motion to reinstate was not equivalent to 

verification).

Although the supreme court admonished in Guest and has continued to 

stress that courts should strive to reach the merits of cases when reasonably 

possible and that litigants‘ rights (whether of appeal or of a day in court) should 

not be lost based upon procedural technicalities,3that line of cases has not 

 

3See Milestone Operating, Inc. v. ExxonMobil Corp., No. 11-0647, 2012 

WL 5285085, at *2 (Tex. Oct. 26, 2012) (reversing default judgment and noting 

court‘s policy that ―adjudication on the merits is preferred‖) (quoting Holt Atherton 

Indus., Inc. v. Heine, 835 S.W.2d 80, 86 (Tex. 1992)); Americo Life, Inc. v. Myer, 

356 S.W.3d 496, 498 (Tex. 2011) (reversing court of appeals‘s waiver holding); 

Ditta v. Conte, 298 S.W.3d 187, 190 (Tex. 2009) (broadly construing issues so 

that ― ̳a just, fair[,] and equitable adjudication of the rights of the litigants‘ is 

obtained‖); Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 784 

(Tex. 2005) (reiterating that the appellate rules ―are designed to resolve appeals 

on the merits, and we must interpret and apply them whenever possible to 

achieve that aim‖); Gallagher v. Fire Ins. Exch., 950 S.W.2d 370, 370–71 (Tex. 

1997) (reiterating commitment to ensuring that courts do not unfairly apply the 

rules of appellate procedure to avoid addressing a party‘s meritorious claim); 

Crown Life Ins. Co. v. Estate of Gonzalez, 820 S.W.2d 121, 121–22 (Tex. 1991) 

(stating that procedural rules should be ―liberally construed so that the decisions 

of the courts of appeals turn on substance rather than procedural technicality‖).
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overruled McConnell or Butts, and we remain bound by those decisions. An 

unverified motion to reinstate is ineffective to extend the trial court‘s plenary 

power beyond thirty days, and rule 165a provides no opportunity to cure the 

deficiency by affidavit once the trial court‘s plenary power has expired. See 

Lubbock Cnty. v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex. 

2002) (holding court of appeals‘s function not to abrogate or modify established 

precedent).

DELAY IN SEEKING MANDAMUS

Real Parties further argue that Relator was dilatory in failing to seek 

mandamus relief for eighteen months with no explanation or excuse as to the 

delay, participating in the lawsuit and discovery, and otherwise treating the case 

as validly reinstated, all of which resulted in prejudice to Real Parties. Thus, they 

contend that Relator slumbered on its rights or lay behind the log and thereby 

waived its right to seek relief by mandamus. As to Real Parties‘ contention that 

Relator lay behind the log regarding its position that the reinstatement was void

until it filed this proceeding, we note that the defendants, including Relator, 

clearly addressed the same arguments raised in this court by their objections and 

briefing filed in response to the motion to reinstate in the trial court in 2010. As to 

Real Parties‘ contention that Relator should have appealed from the order 

reinstating the lawsuit, no appeal was available from the order of reinstatement, 

which merely placed the case back on the docket as though it had never been 
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dismissed. It was neither a final judgment nor an interlocutory order from which 

Relator was entitled appeal.

Moreover, doctrines such as laches, waiver, or estoppel are not applicable 

when the order that is the subject of the mandamus proceeding is void. See In re 

Aslam, 348 S.W.3d 299, 303 n.10 (Tex. App.—Fort Worth 2011, orig. 

proceeding) (stating that laches does not preclude a challenge to a void order);

In re Chester, 309 S.W.3d 713, 718–19 (Tex. App.—Houston [14th Dist.] 2010, 

orig. proceeding) (citing Zimmerman v. Ottis, 941 S.W.2d 259, 262 (Tex. App.—

Corpus Christi 1996, orig. proceeding) (―Since mandamus relief in the present 

case is premised on the entry of a void order, it would not serve the interests of 

justice or those of the parties to invoke laches as an excuse to ignore that order, 

and thus to allow the parties to expend further time and effort in connection with 

a lawsuit that must ultimately be dismissed . . . or reversed on appeal for want of 

jurisdiction.‖); Twist, 294 S.W.3d at 263 (holding waiver did not apply when

defectively verified motion to reinstate failed to extend trial court‘s plenary power 

or time limits for appeal).

For the reasons stated, we are constrained to hold that the unverified 

motion to reinstate did not extend the trial court‘s plenary power beyond thirty 

days after the dismissal was signed and that Real Parties‘ counsel‘s affidavit filed 

after that period had expired was ineffective as an adequate substitute for 

verification because rule 165a(3) plainly requires the verified motion to be filed 

within thirty days. Because the trial court signed the order of reinstatement after 
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its plenary power had expired, we hold that the order of reinstatement is void and 

of no legal effect. We conditionally grant Relator‘s petition for writ of mandamus

and order that the trial court set aside its September 13, 2010 order of 

reinstatement. The writ will issue only in the event the trial court fails to do so 

within thirty days of the date of this opinion.

ANNE GARDNER

JUSTICE

EN BANC

DELIVERED: November 15, 2012