                    COURT OF APPEALS

             THIRTEENTH DISTRICT OF TEXAS

              CORPUS CHRISTI - EDINBURG


                      NUMBER 13-07-113-CV

OSCAR SILGUERO, ET AL.,                                  Appellants,

                                v.

THE STATE OF TEXAS,                                       Appellee.


   On appeal from 275th District Court of Hidalgo County, Texas.


                      NUMBER 13-07-434-CV

                IN RE: OSCAR SILGUERO, ET AL.


                On Petition for Writ of Mandamus.


                          OPINION

           Before Justices Yañez, Rodriguez, and Garza
                    Opinion by Justice Yañez
        Through both a petition for writ of mandamus and an appeal, relators and

appellants, Oscar Silguero, Luis Silguero, and San Juanita Silguero (the “Silgueros”),

challenge the trial court’s order reinstating the underlying forfeiture action following a

dismissal for want of prosecution. We conditionally grant the petition for writ of mandamus

and dismiss the appeal.

                                              I. Background

        On September 23, 1999, the State commenced a forfeiture action against a five-

acre tract of land.1 See generally TEX . CODE CRIM . PROC . ANN . arts. 59.01-.14 (Vernon

2006 & Supp. 2008). On January 18, 2006, the trial court dismissed the cause for want

of prosecution when the State failed to appear. On January 20, 2006, the State filed an

unverified motion to reinstate, alleging that its attorney-in-charge did not receive notice that

the matter was placed on the trial court’s dismissal docket until the day after the hearing,

January 19, 2006. On February 22, 2006, the trial court granted the motion to reinstate.

Following further proceedings, the trial court entered a judgment of forfeiture on December

1, 2006.

        The Silgueros appealed the trial court’s judgment of forfeiture in cause number 13-

07-00113-CV and filed a petition for writ of mandamus regarding the order of reinstatement

in cause number 13-07-00434-CV. This Court granted the Silgueros’ motion to consolidate

the records in these causes for the purposes of briefing and requested a response to the



        1
          The real property at issue is m ore specifically described as “[a] five acre tract of land and
im provem ents surrounded by a pipe and chain linked fence with an inner cedar fence in front of the
im provem ents; the property is legally described as, W est 165 feet out of Block 87, La Blanca Agriculture
Com pany Subdivision ‘B,’ Hidalgo County, Texas as recorded in Volum e 2, Page 42, Map Records, Hidalgo
County, Texas. This property is approxim ately 7/10 m iles east of FM 493 on m ile 12 ½ North in the La Blanca,
Hidalgo County, Texas area.”

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petition for writ of mandamus from the real party in interest, the State of Texas, acting

through the office of the Hidalgo County Criminal District Attorney–Forfeiture Section. The

State has not favored the Court with either a response to the petition for writ of mandamus

or an appellate brief in the appeal.

       The Silgueros attack the trial court’s order of reinstatement as void through both

their petition for writ of mandamus and by their first issue on appeal. We will commence

our analysis with this issue because it is dispositive of both the petition for writ of

mandamus and the appeal. We issue a single opinion herein in the interest of judicial

economy.

                                   II. Standard of Review

       Mandamus relief will lie if the relator demonstrates a clear abuse of discretion for

which there is no adequate appellate remedy. In re AutoNation, Inc., 228 S.W.3d 663, 667

(Tex. 2007) (orig. proceeding). A trial court abuses its discretion if it reaches a decision

so arbitrary and unreasonable as to constitute a clear and prejudicial error of law. Walker

v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). That is, a clear abuse of

discretion occurs when a trial court issues a decision that lacks any basis or reference to

guiding legal principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42

(Tex. 1985). With respect to the resolution of factual issues or matters committed to the

trial court's discretion, we may not substitute our judgment for that of the trial court.

Walker, 827 S.W.2d at 839.         However, because a trial court has no discretion in

determining what the law is or applying the law to the facts, a clear failure by the trial court

to analyze or apply the law correctly constitutes an abuse of discretion. Id. at 840.



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       Mandamus relief is appropriate when a trial court issues an order after its plenary

power has expired because the order is void. In re Brookshire Grocery Co., 250 S.W.3d

66, 68-69 (Tex. 2008) (orig. proceeding); In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex.

2000) (orig. proceeding). Specifically, when a trial court erroneously reinstates a case after

its plenary power has expired, there is no adequate remedy by appeal and mandamus is

the appropriate remedy. Estate of Howley v. Haberman, 878 S.W.2d 139, 140 (Tex. 1994)

(orig. proceeding); S. Main Bank v. Wittig, 909 S.W.2d 243, 244 (Tex. App.–Houston [14th

Dist.] 1995, orig. proceeding).     When the mandamus proceeding arises out of the

interpretation of legal rules, we give limited deference to the lower court’s analysis.

Brookshire Grocery Co., 250 S.W.3d at 69; see Walker, 827 S.W.2d at 839.

                                         III. Analysis

       The Silgueros contend that the trial court abused its discretion and entered a void

order granting the State’s unverified motion to reinstate after the trial court’s plenary

jurisdiction had expired. Texas Rule of Civil Procedure 165a(3) sets out the procedure for

reinstating cases dismissed for want of prosecution. See TEX . R. CIV. P. 165a(3). Rule

165a(3) provides that:

               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


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         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.

Id..2 The Texas Supreme Court and this Court have repeatedly held that an unverified

motion to reinstate does not extend the trial court’s plenary jurisdiction beyond thirty days

after the order of dismissal is signed. 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, 696

(Tex. 1986); In re Garcia, 94 S.W.3d 832, 833 (Tex. App.–Corpus Christi 2002, orig.

proceeding). Other courts of appeals have also routinely concluded that only verified

motions to reinstate will extend a trial court's plenary power. See, e.g., Andrews v.

Stanton, 198 S.W.3d 4, 7 (Tex. App.–El Paso 2006, no pet.); 3V, Inc. v. JTS Enters., Inc.,

40 S.W.3d 533, 538 (Tex. App.–Houston [14th Dist.] 2000, no pet.); In re Montemayor, 2

S.W.3d 542, 545 (Tex. App.–San Antonio 1999, orig. proceeding); Macarangal v. Andrews,

838 S.W.2d 632, 633 (Tex. App.–Dallas 1992, orig. proceeding). This rule has been



         2
             Texas Rule of Civil Procedure 306a(4) extends the tim e period for filing a m otion to reinstate when
a party fails to receive notice of the judgm ent or acquire actual knowledge of the dism issal order. T EX . R. C IV .
P. 306a(4); see Powell v. McCauley, 126 S.W .3d 158, 161 (Tex. App.–Houston [1st Dist.] 2003, no pet.)
(providing that the trial court's jurisdiction to hold a 306a hearing was invoked when a sworn m otion to
reinstate asserted the dism issal order was not tim ely received). In order to obtain the benefits of this rule, the
m ovant m ust receive notice of the judgm ent m ore than twenty, but less than ninety-one, days after it was
signed. In re Lynd Co., 195 S.W .3d 682, 685 (Tex. 2006). W hile the State argued in its m otion to reinstate
that it failed to receive notice of the trial court’s dism issal order, it did not file a rule 306a m otion, which, in any
event, would have been inapplicable to the instant case given the requisite tim e periods for the filing of such
a m otion.

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liberally construed so as to allow movants to file affidavits with their motion to reinstate

instead of filing a verification. See Guest v. Dixon, 195 S.W.3d 687, 688-89 (Tex. 2006)

(per curiam); 3V, Inc., 40 S.W.3d at 539. Courts have also allowed other substitutions for

the verification requirement. See Fed. Lanes v. City of Houston, 905 S.W.2d 686, 689

(Tex. App.–Houston [1st Dist.] 1995, writ denied) (holding that verification or affidavit was

not required with a joint motion to reinstate where the parties jointly stipulated to the facts

pertaining to reinstatement in court).

       In its most recent opinion on orders of reinstatement, the Texas Supreme Court

discussed the continued validity of the McConnell doctrine. See Guest, 195 S.W.3d at

688-89. In Guest, the court was asked to decide whether a motion to reinstate, supported

by the affidavit of the movant's former attorney, extended the time for filing an appeal. Id.

The supreme court recognized its holdings in McConnell and Butts that an unverified

motion to reinstate neither extends the deadlines for filing appeals nor extends the trial

court's period of plenary power. See id. The court also recognized, however, that since

those opinions were issued, it has “repeatedly stressed that procedural rules should be

construed and applied so that the right of appeal is not necessarily lost to technicalities.”

Id. at 688 (citing Republic Underwriters Ins. Co. v. Mex-Tex, Inc., 150 S.W.3d 423, 427

(Tex. 2004); Briscoe v. Goodmark Corp., 102 S.W.3d 714, 717 (Tex. 2003); Verburgt v.

Dorner, 959 S.W.2d 615, 616-617 (Tex. 1997); Jamar v. Patterson, 868 S.W.2d 318, 319

(Tex. 1993); Crown Life Ins. Co. v. Estate of Gonzalez, 820 S.W.2d 121, 121-22 (Tex.

1991)). In concluding that the unverified motion accompanied by an affidavit extended the

time to file a notice of appeal, the court assumed that the rule in Butts and McConnell



                                              6
survived the later cases. See id. at 689; see also In re Dobbins, 247 S.W.3d 394, 396

(Tex. App.–Dallas 2008, orig. proceeding) (construing Guest and concluding that the

combination of an evidentiary hearing with the court master's recommendation of approval,

within the thirty days, was “an adequate substitute for the more technical verification

requirement of McConnell”);

            As an intermediate appellate court, we are bound by supreme court precedent.

Lubbock County v. Trammel's Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex. 2002) (“It

is not the function of a court of appeals to abrogate or modify established precedent.”).

Therefore, based on the supreme court’s pronouncements in McConnell and Guest, we

conclude that an unverified motion to reinstate must be supported by an affidavit or other

sufficient evidence in the record in order to extend the trial court’s plenary power or extend

the time to file a notice of appeal. The affidavit or other evidence must serve as an

adequate substitute for the verification requirement established by the rules of civil

procedure.

        The motion to reinstate filed by the State in the instant case is neither verified nor

accompanied by affidavit. See TEX . R. CIV. P. 165a(3); Guest, 195 S.W.3d at 689. It is not

a “joint” motion to reinstate, nor is it agreed. See Fed. Lanes, 905 S.W.2d at 689. There

is nothing in the record before this Court indicating that the motion was supported by

testimony or evidence of any sort.3 See Guest, 195 S.W.3d at 689. As a result, the trial

court’s plenary jurisdiction over the case expired on February 17, 2006, thirty days after the



        3
         The order of reinstatem ent recites that it was issued “[a]fter considering said m otion and argum ent
of counsel” and accordingly, does not appear to have been based on evidence adduced in open court. The
record before this Court does not include a transcript of the hearing on the m otion to reinstate.

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dismissal order was signed on January 18, 2006, and five days before the trial court signed

the order reinstating the case on February 22, 2006. See id.; McConnell, 800 S.W.2d at

194; Butts, 705 S.W.2d at 696. Accordingly, the trial court lacked jurisdiction to reinstate

the case.

                                      IV. Conclusion

       Because the trial court lacked jurisdiction to reinstate the case, the order of

reinstatement was void. See Brookshire Grocery Co., 258 S.W.3d at 68-69; Estate of

Howley, 878 S.W.2d at 140. We conditionally grant the petition for writ of mandamus in

cause number 13-07-00434-CV and direct the trial court to vacate its order of

reinstatement, thereby returning the parties to the positions they held before the trial court

reinstated the case. We are confident that the trial court will promptly comply, and the writ

will issue only if it does not.

       We conclude that we lack jurisdiction to address the Silgueros’ appeal in cause

number 13-07-00113-CV. As held above, the trial court's actions after February 17, 2006,

are void because the trial court lost plenary power on that date. Although a party affected

by void judicial action need not appeal, if a party does appeal, as the Silgueros have here,

we may declare that the order is void. See State ex rel. Latty v. Owens, 907 S.W.2d 484,

486 (Tex. 1995) (per curiam). Having granted the Silgueros their requested relief in the

mandamus proceeding, we dismiss their appeal in cause 13-07-00113-CV. See id.




                                                  LINDA REYNA YAÑEZ,
                                                  Justice



                                              8
Opinion delivered and filed this the
30th day of January, 2009.




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