Danyell Burnley, Mark Williams, Individually and Next Friend to Zechariah Minters v. Jerome Dennis Losack

• Court: Court of Appeals of Texas
• Decided: December 18, 2025
• Docket: 01-24-00178-CV
• Status: Published

Opinion

Opinion issued December 18, 2025

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-24-00178-CV ——————————— DANYELL BURNLEY, MARK WILLIAMS, INDIVIDUALLY AND NEXT FRIEND TO ZECHARIAH MINTERS, Appellants V. JEROME DENNIS LOSACK, Appellee

On Appeal from the 155th District Court Austin County, Texas Trial Court Case No. 2022V-0151

MEMORANDUM OPINION

We dismiss this appeal for lack of jurisdiction. Under controlling law,

Appellants filed their notice of appeal too late.

Background

This appeal arises out of a lawsuit concerning injuries from a car accident. On December 12, 2023, the trial court signed an Order of Dismissal for Want

of Prosecution. On December 27, 2023, Appellants filed an unverified motion to

reinstate, which the trial court denied.

On January 12, 2024 (31 days after dismissal), Appellants filed a Verified

Motion to Reconsider and attached a notarized sworn statement attesting to the truth

of the statements in the motion to reconsider. The trial court denied the motion to

reconsider.

Appellants filed a notice of appeal on March 4, 2024—83 days after the

judgment.

Discussion

An appellate court is “obligated to review sua sponte issues affecting

jurisdiction.” M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004). Doing

so, we conclude that we lack jurisdiction here.

Appellate courts generally have jurisdiction over appeals from final

judgments filed within 30 days after the appealable order is signed; that timeline

extends to 90 days after the appealable order is signed if a party timely files one of

the pleadings listed in Texas Rule of Appellate Procedure 26.1. See TEX. R. APP. P.

26.1 (providing deadlines to perfect an appeal in a civil case); Butts v. Capitol City

Nursing Home, Inc., 705 S.W.2d 696, 697 (Tex. 1986).

2 As applicable here, a timely, verified motion to reinstate under Texas Rule of

Civil Procedure 165a would have extended the deadline to file a notice of appeal

from 30 days to 90 days. See TEX. R. APP. P. 26.1(a)(3); TEX. R. CIV. P. 165a(3).

Texas Rule of Civil Procedure 165a(3) requires that a motion to reinstate “be verified

by the movant or his attorney” and “be filed with the clerk within 30 days after the

order of dismissal is signed.” TEX. R. CIV. P. 165a(3) (emphasis added); see

McConnell v. May, 800 S.W.2d 194, 194 (Tex. 1990) (“A proper motion to reinstate

must be verified and filed with the clerk within 30 days of the signing of the order

of dismissal.”). To be verified, the statement must be sworn under oath before an

authorized officer. See In re K.M.L., 443 S.W.3d 101, 110–11 (Tex. 2014).

But this record presents no such thing. First, the only timely motion to reinstate

was unverified, which does not qualify under controlling law.1 The Texas Supreme

1 In Appellants’ response to our Notice of Intent to Dismiss for Want of Jurisdiction, Appellants assert their motion to reinstate was verified because it contained a “Certificate of Conference,” which was signed by Appellants’ counsel and stated the following:

I hereby certify that on or about December 19, 2023 I conferred with Allen Galloway, counsel for Defendant Jerome Losack by telephone, regarding the relief requested in this motion and Mr. Allen Galloway replied by [stating] that Defendant did does not oppose the requested relief.

This does not satisfy Texas’s verification requirement. Under Texas law, to be verified, the statement must be sworn under oath before an authorized officer. See K.M.L., 443 S.W.3d at 110–11; see also In re Valliance Bank, 422 S.W.3d 722, 726 (Tex. App.—Fort Worth 2012, orig. proceeding) (“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.” (cleaned up)). 3 Court has been clear that an unverified motion to reinstate does not extend the trial

court’s plenary jurisdiction beyond 30 days. See McConnell, 800 S.W.2d at 194;

Butts, 705 S.W.2d at 697; accord Pope on Behalf of Pope v. Buckingham Senior

Living Cmty., Inc., No. 14-25-00291-CV, 2025 WL 1878744, at *1 (Tex. App.—

Houston [14th Dist.] July 8, 2025, no pet.) (court lacked jurisdiction over untimely

notice of appeal; appellant’s motion to reinstate was unverified).

Nor could the untimely motion to reconsider, filed after 30-days, extend the

time period for Appellants’ notice of appeal. “The time limits in Rule 165a are

mandatory and jurisdictional”—and the verified motion was not timely. See In re

Gonzalez, No. 01-24-00060-CV, 2024 WL 3187727, at *2 (Tex. App.—Houston

[1st Dist.] June 27, 2024, orig. proceeding).

Without a timely, verified motion to reinstate, the trial court’s plenary power

expired 30 days after its order of dismissal. See id. (citing McConnell, 800 S.W.2d

at 194). After the trial court’s plenary power expires, it can take no further action on

the case. Id. “An order of reinstatement entered after the expiration of a trial court’s

plenary power is void.” Id.

Here, because Appellants did not file a plenary-power-extending motion,

Appellants’ notice appeal—filed more than 30-days after the order—was too late.

Because the statement here was not sworn before an authorized officer (nor does it swear to the truth of the statements in the motion to reinstate), it is not a valid verification under Texas law. 4 See TEX. R. APP. P. 26.1. And without a timely notice of appeal, we lack jurisdiction.

Accordingly, we dismiss the appeal. See TEX. R. APP. P. 43.2(f).

Conclusion

We dismiss this appeal for lack of jurisdiction. See TEX. R. APP. P. 42.3(a),

43.2(f).

Jennifer Caughey Justice

Panel consists of Justices Guerra, Caughey, and Dokupil.