Affirmed and Opinion Filed May 25, 2021

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-19-00806-CV

MARIAMA MANSARAY, Appellant

V.

MARY PHILLIPS, Appellee

On Appeal from the 44th Judicial District Court

Dallas County, Texas

Trial Court Cause No. DC-18-16263

MEMORANDUM OPINION

Before Justices Molberg, Reichek, and Nowell

Opinion by Justice Molberg

Appellant Mariama Mansaray appeals the trial court’s denial, by operation of 

law, of her motion to extend post-judgment deadlines and verified motion to 

reinstate her case after it was dismissed for want of prosecution. Before the motion 

was denied by operation of law, the trial court concluded it had lost plenary power 

to rule on the motion because appellant had already filed a notice of appeal. While 

we disagree with that conclusion, because we cannot conclude the trial court abused 

its discretion in failing to grant appellant’s motion to reinstate, we affirm the trial 

court’s judgment in this memorandum opinion. See TEX. R. APP. P. 47.4. 
–2–

BACKGROUND

On October 26, 2018, appellant filed suit alleging negligence against appellee 

Mary Phillips arising from an October 26, 2016 automobile accident. In January 

2019, appellant sought an order allowing substituted service on Phillips. The trial 

court granted the request and issued an order allowing and giving instructions for 

substituted service on Phillips.

On March 11, 2019, the trial court issued an order setting the case for a status 

conference and dismissal hearing on April 5, 2019. The order stated that “[f]ailure 

to appear at this hearing may result in the dismissal of this matter for want of 

prosecution pursuant to Texas Rule[] of Civil Procedure 165a and the Court’s 

inherent power.” 

On April 5, 2019, the trial court entered an order of dismissal for want of 

prosecution. The order stated that appellant failed to appear at that day’s status 

conference and failed to take certain actions as specified by the court. The order 

dismissed appellant’s lawsuit without prejudice under Texas Rule of Civil Procedure 

165a and the trial court’s inherent power.

On July 5, 2019, appellant’s counsel filed two documents: a notice of appeal 

appealing the April 5, 2019 order of dismissal and a combined motion to extend 

post-judgment deadlines and verified motion to reinstate.1 Attached to the motion 

1 Although unimportant for purposes of this appeal, we note that appellant’s counsel maintains that she 

filed these documents on July 4, 2019. The clerk’s record includes a time stamp of July 5, 2019, at 12:00 

a.m. for both.
–3–

were various items, including unsworn declarations by appellant and her counsel 

stating that each had not received actual notice of the April 5, 2019 order of dismissal 

until July 3, 2019—eighty-nine days after the order was signed. On the same day 

the motion was filed, appellant filed a separate certificate of conference which stated, 

“No Answer has been filed by or on behalf of Defendant Mary Phillips, and 

therefore, the Motion is being presented to the Court for determination.” Neither the 

motion nor the separately filed certificate of conference included a certificate of 

service stating that the motion was served on Phillips at the address listed in the 

papers on file. 

On August 1, 2019, the trial court issued an order regarding the motion to 

reinstate. Among other statements, the court concluded that “due to the filing of the 

Notice of Appeal before the Court’s consideration and/or granting of the extending 

of appellate deadlines, the Court . . . has lost plenary power to either specifically 

grant or deny the motion to reinstate.” According to applicable rules, the motion 

was later deemed overruled by operation of law.2

On August 8, 2019, we issued a letter expressing a concern regarding this 

Court’s jurisdiction and requesting briefing regarding that issue. Appellant’s 

counsel provided briefing in response to that request, and on November 6, 2019, we 

issued another letter stating, in part:

2 The motion was deemed overruled by operation of law on September 16, 2019, seventy-five days 

after appellant and her counsel received actual notice of the order of dismissal. See TEX. R. CIV. P. 165a(3), 

306a(4).
–4–

The Court has reviewed appellant’s letter brief filed at the Court’s 

request. At this stage of the appeal, it appears this Court has jurisdiction 

over this appeal. However, the Court instructs appellant to address in 

her brief on the merits the propriety of the trial court’s August 1, 2019 

order denying her 306a motion.3

Appellant filed her brief on the merits on December 6, 2019. Soon thereafter, 

we informed appellant of various deficiencies in her brief and allowed her ten days 

to file an amended brief. We warned that her failure to do so within that time frame 

may result in dismissal of the appeal without further notice from the Court. She did 

not file an amended brief either within or after the time frame provided.

On March 2, 2020, we entered an order stating that the cause would be 

submitted on appellant’s December 6, 2019 brief. The order also stated that Phillips’ 

brief on the merits was to be filed within thirty days from the date of the order. 

Phillips did not file a brief and has not made an appearance in the case.

The case was submitted to us without oral argument on February 9, 2021.

ANALYSIS

Standard of Review and Applicable Legal Standards

Appellant’s sole complaint on appeal is, in essence, that the trial court erred 

in refusing to grant her motion to reinstate after the court dismissed her lawsuit for 

3

In light of our prior letter to counsel, we assume, but do not decide, we have jurisdiction over this 

matter. However, we note that at least one of our sister courts has concluded, on certain similar facts, that 

the court of appeals lacked jurisdiction. See Allstate Ins. Co. v. Barnet, 589 S.W.3d 313, 319–20 (Tex. 

App.—El Paso 2019, no pet.) (concluding that motion to reinstate did not satisfy rule 165a(3)’s 

requirements when it lacked a certificate of service on party at address shown on the docket or in the papers 

on file and that as a result, it was a nullity that did not operate to extend the timetable for filing a notice of 

appeal and that the court lacked jurisdiction under the circumstances in that case).
–5–

want of prosecution.4 Like a review of a dismissal for want of prosecution, we 

review a denial of a motion to reinstate under an abuse of discretion standard. 

Franklin v. Sherman Indep. Sch. Dist., 53 S.W.3d 398, 401 (Tex. App.—Dallas 

2001, pet. denied) (per curiam); see Gomez v. Ly, No. 05-14-00893-CV, 2015 WL 

6121751, at *2 (Tex. App.—Dallas Oct. 19, 2015, no pet.) (mem. op.). To determine 

whether there is an abuse of discretion, we must determine whether the trial court 

acted without reference to any guiding rules and principles. Franklin, 53 S.W.3d at 

401–02 (citing Morrow v. H.E.B., Inc., 714 S.W.2d 297, 298 (Tex.1986)).

Under rule 165a, a court may dismiss a case after notice and a hearing for 

want of prosecution for two reasons: failure to appear, or failure to comply with the 

Texas Supreme Court’s time standards. TEX. R. CIV. P. 165a; Gomez, 2015 WL 

6121751, at *2 (citations omitted). In addition to the court’s power to dismiss under 

rule 165a, the common law also “‘vests the trial court with the inherent power to 

dismiss independently of the rules of procedure when a plaintiff fails to prosecute 

his or her case with due diligence.’” Gomez, 2015 WL 6121751, at *2 (quoting

Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999)).

After a court dismisses a lawsuit for want of prosecution for failure to appear 

under rule 165a(1), an appellant may file a motion to reinstate under rule 165a(3). 

4

In her brief, appellant presents only a single issue, which states, “Did the Trial Court err in denying 

Appellant’s Motion to Extend Post[-]judgment Deadlines[?]” That motion and her motion to reinstate 

were included in a single, combined filing in the trial court. In her brief, appellant argues the trial court 

should have reinstated her case under rule 165a(3). 
–6–

See TEX. R. CIV. P. 165a(1), (3). Under rule 165a(3), a trial court “‘shall reinstate 

the case upon finding after a hearing that the failure of the party or his attorney [to 

appear] was not intentional or the result of conscious indifference but was due to an 

accident or mistake or that the failure has been otherwise reasonably explained.’” 

Smith v. Babcock & Wilcox Const. Co., 913 S.W.2d 467, 468 (Tex. 1995) (per 

curiam) (quoting TEX. R. CIV. P. 165a(3)). This standard is essentially the same as 

that for setting aside a default judgment. Id. (citing Craddock v. Sunshine Bus Lines, 

133 S.W.2d 124 (1939)). Conscious indifference means more than mere negligence, 

id. (citation omitted), and a failure to appear is not intentional or due to conscious 

indifference for rule 165a purposes simply because it is deliberate; instead, it must 

be without adequate justification. Id. Proof of such justification, such as accident, 

mistake, or other reasonable explanation, negates the intent or conscious indifference 

for which reinstatement can be denied. Id. (citing Bank One, Texas, N.A. v. Moody, 

830 S.W.2d 81, 84 (Tex. 1992)). 

Trial Court’s Plenary Power to Rule

Before applying these standards in this case, we first address the question of 

whether the trial court had plenary power to rule on appellant’s motion to reinstate 

when, by the time the court considered it, appellant had already filed a notice of 

appeal. The trial court concluded it did not, stating in its August 1, 2019 order that, 

“due to the filing of the Notice of Appeal before the Court’s consideration and/or 
–7–

granting of the extending of appellate deadlines, the Court . . . has lost plenary power 

to either specifically grant or deny the motion to reinstate.” 

We have previously acknowledged the general proposition that perfection of 

an appeal terminates the trial court’s jurisdiction and transfers jurisdiction to the 

court of appeals. See Hill v. Hill, 460 S.W.3d 751, 766 (Tex. App.—Dallas 2015, 

pet. denied).5 However, that proposition is not absolute, as we demonstrated in Hill 

when we concluded that authorities cited for that general proposition were not 

controlling in that case, which involved receivership. See id. (“Because of the 

unique nature of receiverships . . . and the established jurisdiction of a trial court to 

appoint a receiver even while the main case is on appeal . . . we do not consider these 

decisions controlling on this issue.”)

Although this case does not involve a receivership, the general proposition 

and cited authorities are not controlling here either, but for different reasons. 

Specifically, rule 165a(3) plainly states that the trial court continued to have plenary 

5 We stated:

[Appellant] cites cases for the general proposition that perfection of an appeal terminates 

the trial court’s jurisdiction and transfers jurisdiction to the court of appeals. See 

Panhandle Constr. Co. v. Lindsey, 123 Tex. 613, 72 S.W.2d 1068, 1072 (1934) (perfection 

of appeal, as a general rule, terminates authority of lower court); Custom Corporates, Inc. 

v. Sec. Storage, Inc., 207 S.W.3d 835, 838 (Tex. App.—Houston [14th Dist.] 2006, no pet.) 

(orders issued outside a trial court’s plenary power are typically void because the court no 

longer has jurisdiction to act); In re Brattain, No. 05-00-00175-CV, 2001 WL 8853, at *1 

(Tex. App.—Dallas Jan. 4, 2001, no pet.) (not designated for publication); Stein v. Frank, 

575 S.W.2d 399, 400 (Tex. Civ. App.—Dallas 1978, no writ) (trial court lost jurisdiction 

to deny contest to affidavit of inability to give appeal bond when appeal was perfected by 

posting of appeal bond). We do not disagree with this authority.

See Hill, 460 S.W.3d at 766. 
–8–

power to decide the motion to reinstate for a total of up to 105 days after the 

beginning of the period set forth in rule 306a(4).

Rule 165a(3) states, in part:

A motion to reinstate shall set forth the grounds therefor and be verified 

by the movant or his attorney. It shall be filed with the clerk within 30 

days after the order of dismissal is signed or within the period provided 

by Rule 306a. A copy of the motion to reinstate shall be served on each 

attorney of record and each party not represented by an attorney whose 

address is shown on the docket or in the papers on file. The clerk shall 

deliver a copy of the motion to the judge, who shall set a hearing on the 

motion as soon as practicable. The court shall notify all parties or their 

attorneys of record of the date, time and place of the hearing.

The court shall reinstate the case upon finding after a hearing that the 

failure of the party or his attorney was not intentional or the result of 

conscious indifference but was due to an accident or mistake or that the 

failure has been otherwise reasonably explained.

In the event for any reason a motion for reinstatement is not decided by 

signed written order within seventy-five days after the judgment is 

signed, or, within such other time as may be allowed by Rule 306a, the 

motion shall be deemed overruled by operation of law. If a motion to 

reinstate is timely filed by any party, the trial court, regardless of 

whether an appeal has been perfected, has plenary power to reinstate 

the case until 30 days after all such timely filed motions are overruled, 

either by a written and signed order or by operation of law, whichever 

occurs first.

See TEX. R. CIV. P. 165a(3) (emphasis added). 

Here, appellant’s motion to reinstate was timely filed on July 5, 2019, two 

days after the period for doing so began, based on the record before us. See TEX. R.

CIV. P. 306a(4).6 Thus, under rule 165, regardless of appellant’s contemporaneous 

6 Rule 306a(4) states, “If within twenty days after the judgment or other appealable order is signed, a 

party adversely affected by it or his attorney has neither received the notice required by paragraph (3) of 
–9–

filing of a notice of appeal, the trial court had plenary power to reinstate the case

until October 16, 2019, thirty days after the motion was overruled by operation of 

law. See TEX. R. CIV. P. 165a(3).

Did the Trial Court Abuse its Discretion?

We turn, then, to the merits of the question before us—that is, whether the 

trial court erred in failing to grant her motion to reinstate under rule 165a(3). Based 

on our review of the record, we cannot conclude an abuse of discretion occurred 

because appellant’s motion does not comply with rule 165a(3)’s requirements in at 

least two respects. 

First, there is no indication that the motion was served on Phillips in 

compliance with rule 165a(3). See TEX. R. CIV. P. 165a(3) (stating copy of the 

motion “shall be served on each attorney of record and each party not represented 

by an attorney whose address is shown on the docket or in the papers on file”). 

Although Phillips has made no appearance, her address is shown in several of the 

papers on file in the record before us, including appellant’s motion and amended 

motion for substituted service, the court’s order for substituted service, and the 

officer’s return included within appellant’s motion to reinstate. 

this rule nor acquired actual knowledge of the order, then with respect to that party all the periods mentioned 

in paragraph (1) shall begin on the date that such party or his attorney received such notice or acquired 

actual knowledge of the signing, whichever occurred first, but in no event shall such periods begin more 

than ninety days after the original judgment or other appealable order was signed.” Based on the record 

here, appellant’s date for filing a motion to reinstate began on July 3, 2019, the date she and her attorney 

received actual notice of the April 5, 2019 order of dismissal.
–10–

Second, although appellant’s motion included proof reasonably explaining its 

timing under rule 306a(4), appellant’s motion does not show that the failure of 

appellant or her attorney to appear at the April 5, 2019 status conference hearing was 

not intentional or the result of conscious indifference but was due to an accident or 

mistake or that the failure was otherwise reasonably explained. See TEX. R. CIV. P.

165a(3); Smith, 913 S.W.2d at 468. 

We cannot conclude under these circumstances that the trial court abused its 

discretion in failing to grant appellant’s motion to reinstate.

CONCLUSION

We overrule appellant’s sole issue and affirm the trial court’s judgment.

190806f.p05

/Ken Molberg/

KEN MOLBERG

JUSTICE
–11–

Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

MARIAMA MANSARAY, 

Appellant

No. 05-19-00806-CV V.

MARY PHILLIPS, Appellee

On Appeal from the 44th Judicial 

District Court, Dallas County, Texas

Trial Court Cause No. DC-18-16263.

Opinion delivered by Justice 

Molberg. Justices Reichek and 

Nowell participating.

In accordance with this Court’s opinion of this date, the trial court’s 

judgment is AFFIRMED.

Judgment entered this 25th day of May 2021.