      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       ON REHEARING



                                      NO. 03-08-00693-CV



                                Bruce Wayne Houser, Appellant

                                                 v.

         Douglas Dretke, Director, Texas Department of Criminal Justice, Appellee


    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
       NO. D-1-GN-05-004567, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant Bruce Wayne Houser appeals from a district court judgment dismissing his

lawsuit for want of prosecution. See Tex. R. Civ. P. 165a; Tex. R. Jud. Admin. 6. After dismissing

the instant appeal as untimely, this Court reinstated the appeal based on appellee’s statements that

any delays in Houser’s filings were excusable. See Houser v. Dretke, No. 03-08-00693-CV,

order on reh’g at 2-3 (Tex. App.—Austin May 12, 2009), available at http://www.3rdcoa.courts.

state.tx.us/opinions/HTMLopinion.asp?OpinionID=18094.

               On rehearing, Houser asserts that the district court improperly dismissed his suit for

want of prosecution on August 28, 2008. Appellee has filed a letter brief stating that he does not

contest Houser’s assertions “as it appears that Appellant adhered to all the applicable rules and

orders by the District Court.” Our review of the record confirms appellee’s statements.
               The record demonstrates that Houser filed the underlying suit as an application for

writ of mandamus on November 16, 2005, with a motion for emergency court hearing. Houser

claims that he received notice from the district court clerk that his case would be dismissed for want

of prosecution on December 14, 2007, unless he filed a motion to retain on or before that date.

Although it does not show a file stamp date, the appellate record includes a motion to retain that

was executed and mailed by Houser on December 9, 2007. The district court took no action with

respect to the motion to retain and subsequently dismissed Houser’s suit for want of prosecution on

August 28, 2008.

               Based on the record before us and appellee’s statements that he does not contest

Houser’s claim that the district court improperly dismissed the underlying lawsuit for want of

prosecution, we conclude that the district’s court’s judgment dismissing Houser’s suit with prejudice

was in error. Accordingly, we vacate the district court’s judgment and remand this cause to the

district court for further proceedings.



                                               __________________________________________

                                               Jan P. Patterson, Justice

Before Justices Patterson, Pemberton and Waldrop

Vacated and remanded

Filed: January 7, 2010




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