Frederick Wright v. Railroad Commission of Texas

Opinion issued June 15, 2023.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00490-CV
———————————
FREDERICK WRIGHT, Appellant
V.
RAILROAD COMMISSION OF TEXAS, Appellee
On Appeal from the 11th District Court
Harris County, Texas
Trial Court Case No. 2013-47739
MEMORANDUM OPINION
Appellant Frederick Wright contends the trial court erred in vacating its June
21, 2021 order reinstating the case following dismissal for want of prosecution. We
affirm.
Background
On August 14, 2013, Wright filed a whistleblower lawsuit against the
Railroad Commission of Texas (the Commission). This appeal concerns the trial
court’s dismissal of Wright’s lawsuit for want of prosecution, its later
reinstatement of the case, and its order vacating that reinstatement.
The case was first dismissed for want of prosecution on January 18, 2018.
Wright filed a “Motion for Reinstatement of Case” on February 16, 2018, asking
the court to reinstate and abate the matter until a related federal court case was
resolved. The trial court granted Wright’s motion, as well as a second
reinstatement motion filed on March 10, 2020, but dismissed the case again for
want of prosecution on October 23, 2020. That same day, Wright filed a third
motion for reinstatement. The trial court did not take any action on the third
motion. He then filed a fourth motion for reinstatement on May 24, 2021. On June
21, 2021, the trial court granted Wright’s motion and reinstated the case.
On May 19, 2022, the Commission filed a motion to vacate the June 21,
2021 order, arguing that the trial court lacked jurisdiction to reinstate the case
because its plenary power had expired. The trial court entered an order vacating the
reinstatement on June 7, 2022. Wright appeals.
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Discussion
Wright’s main contention on appeal is that the trial court had jurisdiction to
reinstate the case when it entered its June 21, 2021 order. Wright also argues that
the trial court erred by failing to hold a hearing on his third reinstatement motion.
We consider Wright’s jurisdictional arguments first. See Tex. Dep’t of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004); Waite v. Woodard, Hall &
Primm, P.C., 137 S.W.3d 277, 279 (Tex. App.—Houston [1st Dist.] 2004, no pet.).
A. Standard of Review
“Subject matter jurisdiction is essential to a court’s power to decide a case.”
City of Hous. v. Rhule, 417 S.W.3d 440, 442 (Tex. 2013) (internal quotations
omitted). Subject-matter jurisdiction can be raised at any time. Alfonso v. Skadden,
251 S.W.3d 52, 55 (Tex. 2008). Because the question of jurisdiction is a legal
question, we apply a de novo standard of review. Hoff v. Nueces Cnty., 153 S.W.3d
45, 48 (Tex. 2004); Alwazzan v. Alwazzan, 596 S.W.3d 789, 802 (Tex. App.—
Houston [1st Dist.] 2018, pet. denied).
B. Applicable Law
Texas Rule of Civil Procedure 165a governs reinstatements following
dismissal for want of prosecution. The rule states, in pertinent part:
3. Reinstatement. 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
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provided by Rule 306a[1]. 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.
...
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 . . . 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.
TEX. R. CIV. P. 165a(3).
C. The October 23, 2020 Motion to Reinstate
Wright filed his third motion for reinstatement on October 23, 2020—the
same day the trial court dismissed the case. Thus, Wright’s motion was timely. See
id. (requiring reinstatement motions to be filed “within 30 days after the order of
dismissal is signed”). However, Wright’s motion was not verified in accordance
1
Rule 306a, entitled “Periods to Run from Signing of Judgment,” addresses
situations where, among other things, parties do not receive notice of judgment or
when judgments nunc pro tunc are signed. The rule does not apply to the
circumstances here.
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with Rule 165a(3).2 See id. (requiring reinstatement motions to be “verified by the
movant or his attorney”). In the absence of a timely filed, verified motion to
reinstate, a trial court’s plenary power expires thirty days after dismissal of the
case.3 See McConnell v. May, 800 S.W.2d 194, 194 (Tex. 1990) (orig. proceeding);
Butts v. Capitol City Nursing Home, Inc., 705 S.W.2d 696, 697 (Tex. 1986);
Dardari v. Tex. Com. Bank Nat’l Ass’n, 961 S.W.2d 466, 469 (Tex. App.—
Houston [1st Dist.] 1997, no pet.). “An unverified motion to reinstate does not
2
On appeal, the parties disagree as to whether the motion was verified. Wright
attached his notarized affidavit, titled “Verified/Sworn Statement of Appeal,” to
his motion. The only substantive portion of the affidavit states as follows: “Mr.
Wright filed his Brief with the U.S. Fifth Circuit Court of Appeals, Appealing the
ARB’s Final Order on US DOL ALJ Case No. 2015-SDW-001, on January 13,
2020.”
The affidavit makes no mention of the motion to reinstate; in fact, the affidavit is
dated March 9, 2020, and thus predates the motion by several months. Moreover,
the affidavit fails to describe what transpired in the federal court case from March
to October 2020. The basis of Wright’s motion to reinstate was that the federal
court case was still pending, but the affidavit does not include any facts supporting
this contention. Therefore, the affidavit is not a proper substitute for Rule 165a’s
verification requirements. See Young v. Di Ferrante, 553 S.W.3d 125, 128–130
(Tex. App.—Houston [14th Dist.] 2018, pet. denied) (noting that although courts
“recognize substitutes [to Rule 165a’s verification requirement] when they serve
as the functional equivalent of a verification,” not all verification attempts suffice);
Johnson v. Sepulveda, 178 S.W.3d 117, 119 (Tex. App.—Houston [14th Dist.]
2005, no pet.) (concluding that motion to reinstate was unverified where attached
affidavit “addresse[d] only appellant’s indigence and [did] not reference the
attached motion to reinstate”; further, affidavit was “virtually identical” to one
attached to recusal motion).
3
Because the trial court’s plenary power expired 30 days after the October 23, 2020
dismissal order, Wright’s fourth reinstatement motion, filed on May 24, 2021, was
a nullity.
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extend the trial court’s plenary jurisdiction.” Owen v. Hodge, 874 S.W.2d 301, 303
(Tex. App.—Houston [1st Dist.] 1994, no writ).
Consequently, because Wright filed an unverified motion to reinstate, the
trial court's plenary power in this matter expired on November 22, 2020—thirty
days after the order of dismissal.4 Since the trial court lost jurisdiction long before
issuing the restatement order on June 21, 2021, that order was void. See Walker v.
Harrison, 597 S.W.2d 913, 915 (Tex. 1980) (orig. proceeding) (“[T]he time limits
provided in rule 165a are mandatory and jurisdictional and . . . orders of
reinstatement entered after their expiration are void”); In re Valliance Bank, 422
S.W.3d 722, 729 (Tex. App.—Fort Worth 2012, orig. proceeding) (“Because the
trial court signed the order of reinstatement after its plenary power had expired, we
hold that the order of reinstatement is void and of no legal effect.”); In re Boglia,
L.L.C., No. 01-11-00891-CV, 2011 WL 13385443, at *1 (Tex. App.—Houston [1st
Dist.] Dec. 22, 2011, orig. proceeding) (mem. op.) (“A reinstatement order
rendered after the expiration of the trial court’s plenary power is void.”). The trial
court thus correctly vacated the void order. See Alfonso, 251 S.W.3d at 55 (holding
4
Even if Wright’s motion was properly verified, the trial court would have lost
jurisdiction on February 5, 2021, over three months before its June 21, 2021 order.
Rule 165a provides that a reinstatement motion is deemed overruled by operation
of law if not decided within 75 days, and thereafter, a court retains plenary power
to reinstate the case “until 30 days after all such timely motions are overruled,
either by a written and signed order or by operation of law, whichever occurs
first.” TEX. R. CIV. P. 165a(3); see also Emerald Oaks Hotel/Conf. Ctr., Inc. v.
Zardenetta, 776 S.W.2d 577, 578 (Tex. 1989) (orig. proceeding) (per curiam)
(discussing same).
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that “[s]ubject-matter jurisdiction cannot be waived, and can be raised at any
time”); see also Metro. Transit Auth. v. Jackson, 212 S.W.3d 797, 801–803 (Tex.
App.—Houston [1st Dist.] 2006, pet. denied) (holding that where trial court’s
original order was void for lack of subject matter jurisdiction, it retained plenary
power to sign later judgment; trial court “has no discretion to refuse to set aside a
void judgment, but has the duty to do so at any time that such matter is brought to
its attention”).
D. The Supreme Court’s Emergency Orders
Wright contends that the trial court’s power to rule on the motion to reinstate
was extended by the Texas Supreme Court’s emergency orders regarding the
Covid-19 state of disaster, because these orders allow courts to modify or suspend
deadlines. However, numerous courts, including this one, have rejected such an
argument. As we recently explained in In re Romero, No. 01-21-00629-CV, 2022
WL 23939 (Tex. App.—Houston [1st Dist.] Jan. 4, 2022, orig. proceeding) (mem.
op.), the language in the Supreme Court’s emergency orders
giving a court the power to modify or suspend “deadlines
and procedures” presupposes a pre-existing power or
authority over the case or the proceedings. A court may
extend a deadline or alter a procedure that would
otherwise be part of the court proceedings. It does not
suggest that a court can create jurisdiction for itself
where the jurisdiction would otherwise be absent or that a
judge could create authority to preside over proceedings
over which the judge would otherwise be barred from
presiding.
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2022 WL 23939, at *2 n.4 (quoting In re State ex rel. Ogg, 618 S.W.3d 361, 364
(Tex. Crim. App. 2021) (orig. proceeding)); see also Quariab v. El Khalili, No. 05-
20-00979-CV, 2021 WL 960646, at *1–2 (Tex. App.—Dallas Mar. 15, 2021, no
pet.) (mem. op.) (holding that because trial court had lost jurisdiction over case, it
could not avail itself of supreme court’s emergency orders to reinstate case and
noting that “the language in the emergency orders . . . ‘does not suggest that a court
can create jurisdiction for itself where the jurisdiction would otherwise be
absent[.]’”) (quoting In re State ex rel. Ogg, 618 S.W.3d at 364). Here, because the
trial court had already lost jurisdiction at the time of the June 21, 2021 order, it
could not use the emergency orders to create jurisdiction where it no longer
existed. See In re State ex rel. Ogg, 618 S.W.3d at 364. We therefore overrule
Wright’s jurisdictional arguments.
E. Failure to Hold Hearing on Wright’s Motion
Wright also complains that the trial court should have held a hearing on his
October 23, 2020 motion to reinstate. Where a motion to reinstate is timely filed
and properly verified following a dismissal of a suit for want of prosecution, an
oral hearing is required under Texas Rule of Civil Procedure 165a. Thordson v.
City of Hous., 815 S.W.2d 550, 550 (Tex. 1991) (per curiam); Johnson, 178
S.W.3d at 119. Here, however, Wright did not properly verify his motion. Thus,
Wright did not invoke Rule 165a and its hearing requirements. See Johnson, 178
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S.W.3d at 119 (holding that where movant’s motion for reinstatement was not
properly verified, trial court did not err in failing to hold hearing on motion).
Further, the record does not reflect that Wright ever requested a hearing on
his motion. Instead, his motion states that “[t]he Submission of this Motion has
been set for Monday November 9, 2020 at 9:00 AM at 201 Caroline St, Houston,
Tx 77002, in the Courtroom of this Court.” There is no indication in the record that
Wright raised the issue of a hearing with the trial court before the time for ruling
on the motion expired.
We have noted that “the movant in a motion to reinstate has the burden of
procuring a setting within the time allowed for reinstatement.”5 Nasa I Bus. Ctr. v.
Amer. Nat’l Ins. Co., 747 S.W.2d 36, 38 (Tex. App.—Houston [1st Dist.] 1988,
writ denied) (citing Calaway v. Gardner, 525 S.W.2d 262, 264 (Tex. App.—
Houston [14th Dist.] 1975, no writ) (“If such a request [for a hearing] had been
made and called to the judge’s attention, and if the judge had failed to set the case
within the time limit, such failure would have been erroneous and reviewable.”)).
We have also stated, in the context of a movant’s failure to request a hearing on his
5
One unpublished decision from this Court holds that a movant is not required to
request a hearing on a motion to reinstate. See Johnson v. Patrick, No. 01-90-
00922-CV, 1992 WL 23627, at *2 (Tex. App.—Houston [1st Dist.] Feb. 13, 1992,
no pet.) (not designated for publication). However, the Johnson opinion is silent as
to whether the motion at issue was verified. In fact, the motion in Johnson was not
styled as a motion for reinstatement. Id. at *1. Rather, the court construed the pro
se appellant’s “Motion For A Rehearing On The Trial Setting Or Motion For New
Trial” as such. Id. We therefore find Johnson distinguishable from the present
case.
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motion to reinstate, that “[a] party may not lead a trial court into error and then
complain about it on appeal.” Kelly v. Cunningham, 848 S.W.2d 370, 371 (Tex.
App.—Houston [1st Dist.] 1993, no writ); see also Johnson, 178 S.W.3d at 119(holding trial court did not err in failing to conduct hearing on unverified motion to
reinstate where movant did not request hearing); Rainbow Home Health, Inc. v.
Schmidt, 76 S.W.3d 53, 57 (Tex. App.—San Antonio 2002, pet. denied) (same);
Cabrera v. Cedarapids Inc., 834 S.W.2d 615, 618 (Tex. App.—Houston [14th
Dist.] 1992, writ dism’d) (same).
Here, because there is nothing in the record to suggest that Wright timely
complained to the trial court about not getting a hearing, and because his motion
was not verified in accordance with Rule 165a, we do not find error in the trial
court’s decision not to conduct a hearing on Wright’s motion. We overrule
Wright’s issues.
Conclusion
We affirm the order of the trial court.
Amparo Guerra
Justice
Panel consists of Chief Justice Adams and Justices Guerra and Farris.
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