
IN THE SUPREME COURT OF 
TEXAS
 
════════════
No. 01-1248 

════════════
 
George 
Alexander d/b/a Zentner=s Daughter Steakhouse, 
Petitioner
 
v.
 
Lynda=s Boutique, 
Respondent
 
════════════════════════════════════════════════════
On Petition for Review from 
the
Court of Appeals for the 
Third District of Texas
════════════════════════════════════════════════════
 
Argued November 5, 2003
 
Justice Owen delivered the opinion of 
the Court, in which Chief Justice 
Phillips, Justice Hecht, 
Justice O=Neill, Justice Wainwright and Justice Brister joined.
 
Justice Schneider filed a dissenting 
opinion, in which Justice Jefferson 
and Justice Smith 
joined.
 
There 
are two issues in this restricted appeal.  
The first is whether Texas Rule of Civil Procedure 165a(1)[1] 
requires that a separate hearing to adjudicate dismissal be held before a trial 
court may dismiss a case for want of prosecution for failure to appear at a 
pre-trial hearing when notice of that pre-trial hearing stated that failure to 
appear may result in dismissal.  The 
second issue is whether the notice of a pre-trial conference in this case 
adequately reflected the trial court=s 
intent to dismiss for failure to appear.  
We hold that Rule 165a(1) does not require a 
separate hearing and that the notice in this case adequately apprised the 
parties of the trial court=s 
intent to dismiss for failure to attend a pre-trial conference.  Because the trial court did not err in 
dismissing this case, we accordingly reverse the court of appeals= 
judgment[2] 
and render judgment dismissing the plaintiff=s 
case.
I
Lynda=s 
Boutique and George Alexander d/b/a Zentner=s 
Daughter Steakhouse (Alexander) are businesses located adjacent to one another 
in San Angelo, Texas.  On May 6, 
1999, Lynda=s 
Boutique sued Alexander for negligence and gross negligence after a fire spread 
from Alexander=s 
building to Lynda=s 
Boutique. 
In 
an order signed January 18, 2000, the trial court directed the parties to appear 
at a Rule 166[3] 
pre-trial scheduling conference on March 6, 2000.  The court=s 
order stated:
 
ATTENDANCE 
IS MANDATORY.  The Court may 
excuse counsel under the following circumstances ONLY:
 
1.         
Submission by counsel of a proposed Agreed Scheduling Order . . .  Counsel is not excused from attendance 
unless notified that the Court has approved the Agreed Scheduling 
Order.
 
2.         
For other compelling and urgent reason deemed appropriate by the 
Court.
 
Failure 
to appear without excuse will result in dismissal of the case for want of 
prosecution or entering sanctions or other orders as 
the Court deems appropriate.
 
Lynda=s 
Boutique did not appear at the scheduling conference.  The trial court dismissed the case for 
want of prosecution four days after the hearing in an order dated March 10, 
2000.  There is no indication in the 
record that the court gave further notice or held an additional hearing before 
dismissing the case.
Lynda=s 
Boutique did not file a motion to reinstate under Rule 165a(3).[4]  On July 12, 2000, it filed notice of a 
restricted appeal challenging the trial court=s 
dismissal order.[5]  On appeal, Lynda=s 
Boutique asserted that it did not discover the case had been 
dismissed until July 5, 2000, after the deadline to file a motion to 
reinstate had passed.[6]  Lynda=s 
Boutique contended that there were errors apparent from the face of the record, 
which it said were:  1) the 
trial court=s 
record does not reflect that notice of the March 6, 2000 scheduling conference 
was sent; 2) the trial court failed to hold a dismissal hearing; and 3) the 
trial court=s 
record does not reflect that the order dismissing the case was sent to counsel 
of record=s 
address. 
The court of appeals ordered the trial court to reinstate the case, 
holding that the order setting the scheduling conference did not sufficiently 
apprise the parties of the trial court=s 
intent to dismiss the case for want of prosecution because the order said that 
dismissal for want of prosecution was only Aone 
of the possible sanctions listed in the order@ 
for failure to attend.[7]  The court of appeals further held that 
Rule 165a(1) requires a trial court to give notice of and hold a separate 
dismissal hearing Awhere 
a party may be provided an opportunity to explain his failure to appear@ 
before the court can dismiss a case for failure of a party to attend a scheduled 
hearing.[8]  Because the notice of the scheduling 
conference met the requirements of Rule 165a(1), and 
because the trial court did not err in dismissing the case, we reverse the court 
of appeals= 
judgment.
II
To prevail on its restricted appeal, Lynda=s 
Boutique must establish that:  
(1) it filed notice of the restricted appeal within six months after 
the judgment was signed; (2) it was a party to the underlying lawsuit; 
(3) it did not participate in the hearing that resulted in the judgment 
complained of and did not timely file any postjudgment 
motions or requests for findings of fact and conclusions of law; and 
(4) error is apparent on the face of the record.[9]  Only the fourth element is at 
issue.
Counsel 
for Lynda=s 
Boutique relies in part on an affidavit that was 
executed after the case had reached this Court.[10]  However, we may not consider it.  The affidavit constitutes extrinsic 
evidence that cannot be considered in a restricted 
appeal.  As we explained in 
General Electric Co. v. Falcon Ridge Apartments, Joint Venture,[11] 
if extrinsic evidence is necessary, it should be 
presented in a motion for new trial or a bill of review:
 
The 
rule has long been that evidence not before the trial court prior to final 
judgment may not be considered in a writ of error 
proceeding. . . .  
Our system is founded upon a belief that trial 
courts should first be given the opportunity to consider and weigh factual 
evidence.  Permitting challenge to a 
judgment based on affidavits first filed in the appellate court undermines this 
judicial structure.  The appropriate 
remedy when extrinsic evidence is necessary to the challenge of a judgment is by 
motion for new trial, Tex.R.Civ.P. 320, or by bill of review filed in the trial court.[12]
 
Our 
decision in General Electric is dispositive of 
another issue in this appeal, which is whether the failure of the record to 
affirmatively show that notice of the pre-trial hearing was sent to counsel or 
that notice of the order dismissing the case was sent to counsel at a particular 
address is error on the face of the record.  It is not.
In 
General Electric, the plaintiff whose 
case had been dismissed for want of prosecution filed an appeal by writ of error 
pursuant to former Texas Rule of Appellate Procedure 45.  (The writ of error procedure is now the 
restricted appeal procedure in Texas Rules of Appellate Procedure 25.1, 26.1(c), and 30.)  The record in General Electric 
was devoid of any indication that notice of a dismissal hearing had been issued 
or sent, and the plaintiff alleged that it had not received any notice that the 
trial court intended to dismiss for want of prosecution.  The plaintiff 
tendered affidavits of its counsel and the district clerk averring that 
notice was neither given nor received.  
After explaining why we could not consider the affidavits, we held that 
when the record is silent as to whether notice was 
provided, there is no error apparent on the face of the record:  AThe 
absence from the record of affirmative proof that notice of intent to dismiss or 
of the order of dismissal was provided does not establish error.@[13]  The absence of proof from the face of 
the record either way was just that B 
an absence of proof of error.  We 
explained that this was not Aan 
impermissible presumption in favor of the judgment, which is prohibited 
in a writ of error proceeding.@[14]  That is because the clerk has an 
affirmative duty under Rule 165a to give notice, but no duty to affirmatively show in the record that such notice was 
given: 
 
Rule 
165a, Texas Rules of Civil Procedure, which governs dismissals for want of 
prosecution, directs the district clerk to mail to counsel of record and to each 
party not represented by counsel a notice containing the date and place of the 
hearing at which the court intends to dismiss.  A similar notice of the signing of the 
order of dismissal is also required.  
Tex.R.Civ.P. 165a, 
306a.  The rules do not, however, impose upon the clerk the duty to note on 
the docket sheet the fact of mailing such notices.  Consequently, in cases dismissed for 
want of prosecution, the record is ordinarily silent as to whether or not the 
required notices were given.
 
There 
is thus nothing in the transcript before us that affirmatively indicates that 
notice was given, nor any notation to establish that 
notice was omitted. . . .  
The absence from the record of affirmative proof that notice of intent to 
dismiss or of the order of dismissal was provided does 
not establish error.[15]
 
Accordingly, 
the fact that the record is silent about the sending of notices under Rule 165a 
does not establish error on the face of the record.  And mere 
silence as to whether notice was sent does not establish that notice was not 
sent or that it was sent to the wrong address.  Accordingly, when the record does not 
reflect whether notice was sent, that is insufficient to establish reversible 
error in a restricted appeal proceeding.
Lynda=s 
Boutique argues that General Electric is distinguishable because the 
record in this case is not entirely silent, at least as to whether notice of the 
order actually dismissing the case was sent to 
Lynda=s 
Boutique.  The order dismissing the 
case says at the bottom: 
 
Xc:      Webb, Frank J. 

Bale, 
Larry W.
 
Lynda=s 
Boutique argues that the absence of an address for Frank J. Webb, its attorney 
of record at the time the order was signed, is error on 
the face of the record.  Lynda=s 
Boutique cites General Motors Acceptance Corp. v. City of Houston.[16]  In that case, the notice of intent to 
dismiss, and subsequently the dismissal order sent by the trial court, omitted 
part of the law firm name of appellant=s 
counsel and the suite number of the building in which that firm was 
located.  This 
incomplete firm name and address had been supplied by appellant=s 
counsel in a motion it had previously filed, although the complete address was 
included in appellant=s 
original petition instituting suit and the service of citation.  The court of appeals held that the 
incomplete address on the notice of intent to dismiss and on the order 
dismissing the case constituted errors apparent on the face of the record.[17]  We need not decide whether General 
Motors Acceptance Corp. was correctly decided.  It is factually distinguishable.  In this case, the record does not 
reflect the addresses to which either the notice of the pre-trial hearing or the 
notice of the dismissal order were mailed.  There is no indication from the face of 
the record that either notice was sent to an incorrect 
address.  The face of the record 
therefore gives no indication that the trial court failed to provide Lynda=s 
Boutique notice of either the pre-trial hearing or the order dismissing the case 
for failure to attend that hearing.
III
We 
now consider whether the order setting the pre-trial hearing comports with Rule 
165a(1) and whether Rule 165a(1) permitted the trial 
court to dismiss this case for failure to appear without setting an additional 
hearing.
A 
court may dismiss a case for want of prosecution under either Rule 165a or under 
its common law inherent authority.[18]  This case concerns only the trial 
court=s 
authority to dismiss under Rule 165a(1).  Rule 165a(1) 
states in pertinent part:
 
1.         
Failure to Appear.  
A case may be dismissed for want of prosecution 
on failure of any party seeking affirmative relief to appear for any hearing or 
trial of which the party had notice.  
Notice of the court=s 
intention to dismiss and the date and place of the dismissal 
hearing shall be sent by the clerk to each attorney of record, and to 
each party not represented by an attorney and whose address is shown on the 
docket or in the papers on file, by posting same in the United States Postal 
Service.  At the dismissal hearing, 
the court shall dismiss for want of prosecution unless there is good cause for 
the case to be maintained on the docket.[19]
 
The 
rule clearly states that a trial court may dismiss a case Aon 
failure of any party seeking affirmative relief to appear for any hearing or 
trial.@  It also requires that notice of the 
court=s 
intention to dismiss and the date and place of Athe 
dismissal hearing@ 
be sent to each attorney of record.  
Lynda=s 
Boutique argues that the trial court=s 
order setting the pre-trial conference does not give notice that the purpose of 
that hearing was to determine whether the case should be 
dismissed for want of prosecution.  
The court of appeals agreed, concluding that because the order setting 
the scheduling conference stated that dismissal was only one of a number of 
possible consequences for failure to appear, it was Aunclear 
whether dismissal [would] automatically result without the benefit of a 
hearing.@[20]  The court of appeals further concluded 
that the scheduling order did not give Anotice 
of the date and location of a dismissal hearing,@[21] 
saying:
 
It is clear from this notation on the docket sheet that the sole 
purpose of the hearing set for March 6 was to conduct a scheduling conference, 
that the case was dismissed for want of prosecution as a direct result of 
counsel=s 
failure to appear at the scheduling conference, and that the trial court did not 
first conduct a noticed dismissal hearing.  We thus conclude that the trial court 
did not provide sufficient notice of its intent to dismiss, did not afford 
Lynda=s 
Boutique an opportunity to be heard, and that this 
error is apparent on the face of the record.[22]
 
We 
disagree with this analysis.  The 
order setting the pre-trial conference plainly warned the litigants that they 
could expect the trial court to dismiss the case for want of prosecution if 
Lynda=s 
Boutique failed to attend:  AFailure 
to appear without excuse will result in dismissal of the case for want of 
prosecution or entering sanctions or other orders as 
the Court deems appropriate.@  The fact that the trial court said that 
it might order sanctions in addition or as an alternative to dismissal did not 
diminish the warning that dismissal was at issue.  The fact that the order in this case 
explicitly states that the court could order lesser or alternative sanctions 
does nothing more than state the court=s 
inherent authority.
Both 
Lynda=s 
Boutique and the court of appeals have cited Brown v. Brookshires Grocery Store[23] 
for the proposition that a failure to conduct a dismissal hearing is error that 
is apparent from the face of the record.  
But the notice in Brown is different from 
the notice in this case.  The notice 
in Brown said that the case would be dismissed 
for want of prosecution unless a written request for a setting or written 
showing for a continuance was made within fifteen days, but no definite date or 
time was set for a hearing on any matter.  
The plaintiff responded to the trial court=s 
letter, referring to a request for a jury trial filed several months earlier 
along with payment of the jury fee.  
Despite this response, the trial court signed an order dismissing the 
case for want of prosecution, citing Rule 165a.  The court of appeals concluded the 
notice was insufficient under Rule 165a because it did not include a date and 
place for a dismissal hearing.[24]  The court also held that the trial 
court=s 
failure to provide an opportunity for an oral hearing before dismissal was 
reversible error.[25]  Here, the parties were told to appear on 
a specific day at a specific time and that if they did not do so, the case could be dismissed for want of prosecution.  They were told when and where to appear 
and what the adverse consequences could be if they did not 
appear.
The 
notice and Lynda=s 
Boutique=s 
conduct in this case also differ from the notice and the plaintiff=s 
conduct at issue in Villareal v. San Antonio Truck & Equipment.[26]  In Villareal, the notice informed 
the plaintiff, AYOU 
ARE REQUESTED TO BE PRESENT AND MAKE YOUR ANNOUNCEMENT.  IF NO ANNOUNCEMENT IS 
MADE, THIS CAUSE WILL BE DISMISSED FOR WANT OF PROSECUTION.@[27]  Counsel for the plaintiff appeared at 
the hearing, announced that he was ready, and filed a motion to set the case on 
the jury docket.  The trial court 
nevertheless dismissed the case.  We 
held this was error because the plaintiff did precisely what the notice said was 
necessary to avoid dismissal B 
appear and announce ready for trial.[28]
Unlike 
the plaintiff in Villareal, Lynda=s 
Boutique did not comply with the express requirements of the trial court=s 
order setting the pre-trial conference, which gave Lynda=s 
Boutique notice of at least two things.  
First, there was to be a scheduling hearing, and second, dismissal could 
result if Lynda=s 
Boutique did not appear at that hearing.  
Rule 165a(1) does not preclude a trial court from scheduling a pre-trial 
hearing, giving notice that failure to attend that hearing may result in 
dismissal for want of prosecution, and also deciding at that hearing whether the 
case should be dismissed for want of prosecution if a party seeking relief fails 
to attend.  All Rule 165a(1) requires is notice of intent to dismiss and of a 
date, time, and place for the hearing.
Because 
the notice in this case clearly set a date and time for a hearing and clearly 
stated that the parties could expect the court to dismiss the case for want of 
prosecution for nonattendance, the order satisfies any requirement that there be 
notice and an opportunity to be heard before a case is dismissed for want of 
prosecution.[29]  The right to seek reinstatement as 
provided in Rule 165a(3), a restricted appeal in the appropriate case, and 
procedures for a bill of review will generally satisfy any due process concerns 
that might arise in this context.[30]
* * * * *
For 
the foregoing reasons, we hold that the trial court did not err in dismissing 
this case for want of prosecution.  
We therefore reverse the court of appeals= 
judgment and render judgment dismissing Lynda=s 
Boutique=s 
claims against Alexander.
 
 
____________________________________
Priscilla 
R. Owen
Justice
 
OPINION 
DELIVERED:  May 14, 
2004
 
