Opinion issued October 9, 2018.




                                       In The

                                Court of Appeals
                                      For The

                           First District of Texas
                              ————————————
                               NO. 01-17-00063-CV
                             ———————————
                         WILLIAM S. LEWIS, Appellant
                                          V.
                         MARK A. AGUIRRE, Appellee


               On Appeal from County Civil Court at Law No. 4
                            Harris County, Texas
                       Trial Court Case No. 1062343


                        MEMORANDUM OPINION

      Appellant William S. Lewis is appealing the trial court’s order dismissing his

lawsuit against appellee Mark A. Aguirre for want of prosecution. On appeal, Lewis

argues that the trial court abused its discretion by dismissing his lawsuit for want of
prosecution because he had filed a timely motion for continuance of the trial setting

stating good cause. We dismiss the appeal for want of jurisdiction.

                                     Background

      On June 3, 2014, Lewis, a pro-se indigent litigant who is incarcerated in a

federal penitentiary in Pennsylvania, sued appellee Mark A. Aguirre for breach of

contract in a Harris County justice court. Lewis contends that he hired Aguirre as a

private investigator to assist him with his criminal defense and that Aguirre failed to

provide the agreed upon services.1 The justice court dismissed Lewis’s lawsuit for

want of prosecution on March 19, 2015. Lewis filed a notice of appeal with the

County Court at Law on May 12, 2015. Aguirre filed his original answer in the

county court on May 26, 2015.

      On June 14, 2016, the county court reset Lewis’s case for trial on August 8,

2016, the fourth trial setting. When Lewis did not appear for trial, Aguirre asked the

court to dismiss the suit for want of prosecution based on Lewis’s failure to appear.

The trial court granted the motion and dismissed Lewis’s lawsuit for want of

prosecution the same day. The order of dismissal does not state the basis for the

court’s decision.




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      When an appellee does not file a brief, as here, the appellate court may accept any
      factual statement made in the appellant’s brief as true. See TEX. R. APP. P. 38.1(g).

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      Lewis filed a restricted appeal contesting the dismissal of his lawsuit and he

attempted to supplement the clerk’s record with a “Motion for Continuance” that he

contends he deposited in the prison mail system on July 27, 2016, twelve days before

the trial setting. See TEX. R. APP. P. 34.5(e). Lewis also filed a sworn declaration, in

which he stated that he mailed the motion for continuance by turning it over to the

proper authorities in the federal prison where he was incarcerated, and he provided

this court with a copy of a letter from federal prison authorities stating that a “letter”

was mailed to the Harris County Clerk’s office on July 27, 2016.

      The trial court clerk filed a supplemental clerk’s record, reflecting that the trial

court “has no record” of a motion for continuance filed on July 27, 2016, and stating

that Lewis’s copy of the motion “does not have a receiv[ed] stamp indicating that

[the county clerk’s office] in fact received his motion.”

      We abated the appeal and remanded for the trial court to conduct a hearing to

determine whether Lewis’s motion for continuance had been lost or destroyed and

should be included in the clerk’s record. See TEX. R. APP. P. 34.5(e); see also Goetz

v. Goetz, No. 01-10-00286-CV, 2012 WL 1454385, at *1 (Tex. App.—Houston [1st

Dist.] Apr. 26, 2012, no pet.) (mem. op.) (per curiam) (stating trial court must resolve

any dispute concerning accuracy of items to be included in clerk’s record). After a

hearing, the trial court determined that Lewis’s motion for continuance had been

“lost or destroyed” en route to the Harris County Clerk’s office as defined by Rule


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34.5(e)(1) and ordered the clerk to include the motion in a supplemental clerk’s

record.

            Restricted Appeal of Dismissal for Want of Prosecution

      Lewis argues that the trial court abused its discretion by dismissing his lawsuit

for want of prosecution because he had filed a timely motion for continuance stating

good cause, and he suggests that the trial court’s error is apparent on the face of the

record, given the facts asserted in his motion for continuance.

A.    Applicable Law

      1.     Dismissal for Want of Prosecution

      A trial court’s authority to dismiss for want of prosecution stems from rule

165a of the Texas Rules of Civil Procedure and from the court’s inherent power.

Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999). A trial

court can dismiss for want of prosecution under the following three situations: (1)

when a party seeking affirmative relief fails to appear for any hearing or trial of

which the party had notice, (2) when the case is not disposed of within the time

standards of the supreme court, or (3) when the trial court finds that the case has not

been prosecuted with due diligence. Wright v. Tex. Dep’t of Crim.

Justice-Institutional Div., 137 S.W.3d 693, 696 (Tex. App.—Houston [1st Dist.]

2004, no pet.) (citing City of Hous. v. Robinson, 837 S.W.2d 262, 264–65 (Tex.

App.—Houston [1st Dist.] 1992, no writ)). We review a trial court’s order of


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dismissal for an abuse of discretion. Wright, 137 S.W.3d at 696 (citing Coleman v.

Lynaugh, 934 S.W.2d 837, 838 (Tex. App.—Houston [1st Dist.] 1996, no writ)).

      2.     Restricted Appeal

      To be entitled to a restricted appeal, Lewis must demonstrate that: (1) he filed

a notice of restricted appeal within six months after the judgment was signed; (2) he

was a party to the underlying lawsuit; (3) he did not participate in the hearing that

resulted in the complained-of judgment and did not timely file any post-judgment

motions or requests for findings of fact and conclusions of law; and (4) error is

apparent on the face of the record. See Alexander v. Lynda’s Boutique, 134 S.W.3d

845, 848 (Tex. 2004) (citing TEX. R. APP. P. 26.1(c), 30). These requirements are

jurisdictional and cut off a party’s right to seek relief by way of a restricted appeal

if they are not met. See Cox v. Cox, 298 S.W.3d 726, 730 (Tex. App.—Austin 2009,

no pet.) (citing Clopton v. Pak, 66 S.W.3d 513, 515 (Tex. App.—Fort Worth 2001,

pet. denied)).

B.    Analysis

      The county court dismissed Lewis’s lawsuit on August 8, 2016. Lewis filed

his notice of appeal on January 25, 2017, within the required six-month period. The

record reflects that Lewis did not participate in the hearing on August 8, 2016 that

resulted in dismissal, file any post-judgment motions, request findings of fact or

conclusions of law, or file a notice of appeal within the usual appellate deadlines.


                                          5
Therefore, Lewis has met the first three procedural requirements for presenting a

restricted appeal. See TEX. R. APP. P. 26.1(c), 30.

      The question before us is whether he meets the final requirement, i.e., is the

alleged error apparent on the face of the record. “The face of the record, for purposes

of a restricted appeal, consists of all the papers that were before the trial court when

it rendered its judgment.” Cox, 298 S.W.3d at 731 (citing Alexander, 134 S.W.3d at

848–49). As the Texas Supreme Court has explained, this limitation on the scope of

the record for purposes of a restricted appeal is based on the principle “that trial

courts should first be given the opportunity to consider and weigh factual evidence.

Permitting challenge to a judgment based on [evidence] first filed in the appellate

court undermines this judicial structure.” Alexander, 134 S.W.3d at 848–49 (quoting

Gen. Elec. Co. v. Falcon Ridge Apartments, Joint Venture, 811 S.W.2d 942, 944

(Tex. 1991)).

      The same rationale applies here. The record reflects that Lewis’s motion for

continuance was not before the trial court when the court dismissed his lawsuit on

August 8, 2016. While Lewis has presented extrinsic evidence to this court that the

motion was not received by the trial court before the hearing, extrinsic evidence does

not satisfy the requirement for a restricted appeal that error be apparent on the face

of the record. Permitting a party to challenge a trial court’s dismissal based on facts

alleged in a motion for continuance that the trial court did not have an opportunity


                                           6
to consider before rendering its judgment deprives the trial court of its right to

consider and weigh factual evidence. See generally Gen. Elec. Co., 811 S.W.2d at

944 (“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.”); see also Alexander, 134 S.W.3d at 848–49. Therefore, we

will not consider Lewis’s motion or the facts alleged in that motion for purposes of

this restricted appeal. See Ginn v. Forrester, 282 S.W.3d 430, 432 (Tex. 2009) (per

curiam) (“When extrinsic evidence is necessary to challenge a judgment, the

appropriate remedy is by motion for new trial or by bill of review filed in the trial

court so that the trial court has the opportunity to consider and weigh factual

evidence.”); see also Alexander, 134 S.W.3d at 848 (stating extrinsic evidence is not

part of record considered in restricted appeal).

      We further note that Lewis’s reliance on the prisoner mailbox rule to establish

the timeliness of the filing of his motion is misplaced. Rule 5 of the Texas Rules of

Civil Procedure states:

      If any document is sent to the proper clerk by first-class United States
      mail in an envelope or wrapper properly addressed and stamped and is
      deposited in the mail on or before the last day for filing same, the same,
      if received by the clerk not more than ten days tardily, shall be filed by
      the clerk and be deemed filed in time. A legible postmark affixed by
      the United States Postal Service shall be prima facie evidence of the
      date of mailing.




                                          7
TEX. R. CIV. P. 5. The plain language of the rule dictates that a document is

considered timely filed only “if [it is] received by the clerk not more than ten days

tardily.” Id. The record reflects that Lewis’s motion was not received by the clerk’s

office within ten days of the trial setting.

      Because Lewis’s motion for continuance was not before the trial court when

it dismissed Lewis’s lawsuit for want of prosecution, the record does not reflect that

the trial court abused its discretion by dismissing Lewis’s suit after he failed to

appear for the fourth trial setting. Therefore, we conclude that Lewis has not shown

any error on the face of the record. See Alexander, 134 S.W.3d at 848.

                                      Conclusion

      Because Lewis has not demonstrated error on the face of the record, he is not

entitled to relief by way of a restricted appeal. See Cox, 298 S.W.3d at 730 (stating

requirements for restricted appeal are jurisdictional). Accordingly, we dismiss his

appeal for want of jurisdiction. Any pending motions are dismissed as moot.




                                                   Russell Lloyd
                                                   Justice

Panel consists of Justices Keyes, Bland, and Lloyd.




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