Reed v. City of Dallas

774 S.W.2d 384, 1989 WL 95584

• Court: Court of Appeals of Texas
• Decided: July 6, 1989
• Docket: 05-88-01396-CV
• Status: Published

Opinions

BAKER, Justice.

This appeal is from the trial court’s order dismissing Reed’s case for want of prosecution. We agree with Reed that the trial court abused its discretion by failing to hold an oral hearing on her motion to reinstate, and we reverse and order the trial court to conduct a hearing on Reed’s motion to reinstate.

This case was set for trial on the merits for October 3, 1988. Prior to that date, Reed’s attorneys had filed a motion to withdraw. Reed's attorneys filed a motion for continuance on October 3, when the case was called for trial. The trial court overruled the motion for continuance and, when Reed announced not ready, dismissed the suit for want of prosecution.

Reed timely filed a motion to reinstate and a request for an oral hearing on her motion at the court’s earliest convenience. No hearing was set or held, and, subsequently, the motion to reinstate was overruled by operation of law.

In her first point of error, Reed contends that the trial court abused its discretion by failing to hold an oral hearing on her motion to reinstate as is required by rule 165a of the Texas Rules of Civil Procedure. We agree. Rule 165a of the Texas Rules of Civil Procedure provides in pertinent 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.

TEX.R.CIV.P. 165a. This language does not permit the trial court discretion in whether to set a hearing on a motion to reinstate, and the plain language of the rule requires that the trial court “shall set a hearing on the motion as soon as practicable.” The trial court’s duty is clear, and the rule is mandatory.

The trial court’s failure to set and conduct a hearing is erroneous and requires reversal. See NASA I Business Center v. American Nat’l Ins. Co., 747 S.W.2d 36, 38 (Tex.App.—Houston [1st Dist.]), writ denied per curiam, 754 S.W.2d 152 (Tex.1988); Bush v. Ward, 747 S.W.2d 43, 45 (Tex.App.—Beaumont 1988, no writ). We sustain Reed’s first point of error.

Because of our disposition of the first point of error, it is not necessary to consider Reed’s second point of error. We reverse the trial court’s order of dismissal and order the trial court to conduct a hearing on Reed’s motion to reinstate.

HOWELL, J., dissents.