                                 Fourth Court of Appeals
                                         San Antonio, Texas
                                    MEMORANDUM OPINION
                                             No. 04-13-00363-CV

                                             Deanira MORALES,
                                                  Appellant

                                                        v.

                        COTULLA INDEPENDENT SCHOOL DISTRICT,
                                       Appellee

                     From the 81st Judicial District Court, La Salle County, Texas
                                 Trial Court No. 11-10-00159-CVL
                            Honorable Donna S. Rayes, 1 Judge Presiding

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Rebeca C. Martinez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: May 21, 2014

REVERSED AND REMANDED

           Deanira Morales appeals from the trial court’s judgment dismissing her whistleblower-

retaliation lawsuit against her former employer, the Cotulla Independent School District. She

contends the trial court abused its discretion by dismissing her case for want of prosecution and

by denying her motion to reinstate. Because we hold that the trial court abused its discretion by




1
  The Honorable Donna S. Rayes, presiding judge of the 81st Judicial District Court, signed the judgment dismissing
this case for want of prosecution. The Honorable Stella Saxon, presiding judge of the 218th Judicial District Court,
signed the order denying reinstatement.
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denying her motion to reinstate, we reverse the judgment of dismissal and remand Morales’s case

to the trial court.

                                           BACKGROUND

        According to Morales’s pleadings, the District first hired her for the 2008-2009 school year

as a kindergarten teacher, and her contract was renewed for the 2009-2010 school year. Morales

alleges she witnessed her school’s principal committing several improprieties during that year’s

administration of the Texas Assessment of Knowledge and Skills test. Morales further alleges the

principal then began a campaign of harassment against her, which continued even after she

complained to the District’s superintendent about the alleged TAKS improprieties and harassment.

        The superintendent transferred Morales to a different school for the 2010-2011 school year.

Later that year, however, her former principal was also transferred to the same school. Morales

claims the principal then resumed her campaign of harassment against Morales, continuing even

after she again complained to the District’s superintendent. At the end of the school year, Morales’s

contract with the District was not renewed. After unsuccessfully seeking redress through the

District’s grievance process, Morales filed this whistleblower-retaliation lawsuit against the

District on October 1, 2011.

        The record reflects that, aside from two Rule 11 agreements filed in April 2012, there was

no activity in Morales’s case between January 3, 2012, when the District filed its answer, and

January 16, 2013. On that date, the trial court signed an order setting the causes for dismissal for

want of prosecution. The order provided, in part:

                 In Accordance with Rule 6 of the Texas Rules of Judicial
                 Administration and Rule 165A of the Texas Rules of Civil
                 Procedure, it appears to the court that the numbered and entitled
                 causes hereinafter set forth have been on file for more 12 months on
                 date of the DISMISSAL DOCKET DAY hereinafter stated; and the
                 Court desiring that adequate advance notice be given; and the court
                 being of the opinion that the same should be specially set for trial;
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                 IT IS THEREFORE ORDERED, ADJUDGED AND DECREED
                 by the court that the following named and entitled causes SEE
                 EXHIBIT “A” ATTACHED HERETO; be and the same are hereby
                 specially set for the 14TH day of MARCH 2013 at 9:00 a.m. in the
                 District Courtroom, Cotulla, LA SALLE County, Texas. Unless
                 scheduled for Trial on the Merits, all pending matters in said causes
                 will be DISMISSED BY THE COURT for want of prosecution at
                 the cost of the various plaintiffs.

The January order contains a certificate of service signed by the La Salle County District Clerk,

certifying that the order was sent by mail to the attorneys whose cases were set for the March

“dismissal docket day.” A computer generated list of the cases set for the dismissal docket was

also attached to the order.

        Morales did not set her case for trial or appear prior to or during the trial court’s dismissal

docket hearing, and the trial court dismissed her case for want of prosecution. Its dismissal order

provided:

                 Pursuant to Rule 6 of the Texas Rules of Judicial Administration and
                 Rule 165A of the Texas Rules of Civil Procedure, and the Court
                 having considered the same at a hearing on this day, March 14, 2013,
                 the Court finds that the instant matter should be dismissed for want
                 of prosecution.

        Morales timely filed a verified motion for reinstatement. At the conclusion of an oral

hearing on the motion, the trial court denied Morales’s request for reinstatement. This appeal

followed.

                                              APPLICABLE LAW

        A trial court’s authority to dismiss for want of prosecution stems from two sources: 1) Rule

165a of the Texas Rules of Civil Procedure, and 2) the court’s inherent power. Villarreal v. San

Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999). 2 A party must be provided with notice


2
  “These two sources of authority provide three potential vehicles for a trial court to dismiss a case for want of
prosecution—two are provided for in Rule 165a and the third is the trial court’s inherent authority.” Polk v. Sw.
Crossing Homeowners Ass’n, 165 S.W.3d 89, 96 n.4 (Tex. App.—Houston [14th Dist.] 2005, pet. denied).

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and an opportunity to be heard before a court may dismiss a case for want of prosecution. Id. If

the trial court’s notice specifies a particular ground for dismissal, dismissal may only be granted

on the basis stated in the notice. In re Marriage of Seals, 83 S.W.3d 870, 873 (Tex. App.—

Texarkana 2002, no pet.). Furthermore, if the trial court’s notice prescribes actions a party may

take to avoid dismissal of her case and she complies with those prescriptions, the trial court abuses

its discretion in dismissing the case. See Villarreal, 994 S.W.2d at 631 (“The notice of setting sent

to Villarreal warned of dismissal for the failure to make an announcement at the dismissal hearing.

. . . Because it is undisputed that Villarreal did appear, the trial court could not have dismissed this

case for want of prosecution under Rule 165a(1).”).

         A motion to reinstate is a failsafe mechanism to prevent cases from being improperly

dismissed. Binner v. Limestone Cnty., 129 S.W.3d 710, 713 (Tex. App.—Waco 2004, pet denied).

Rule 165a provides “[t]he 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 conscious indifference but was due

to an accident or mistake or that the failure has been otherwise reasonably explained.” TEX. R. CIV.

P. 165a(3) (emphasis added). This court applies the Rule 165a reinstatement standard to all

dismissals for want of prosecution. Capetta v. Hermes, 222 S.W.3d 160, 166–67 (Tex. App.—San

Antonio 2006, no pet.) (en banc). 3

         The Rule 165a reinstatement standard “is essentially the same as that for setting aside a

default judgment.” Smith v. Babcock & Wilcox Const. Co., 913 S.W.2d 467, 468 (Tex. 1995) (per

curiam). Thus, the party seeking reinstatement “must prove that the failure or omission that led to

dismissal was the product of an accident or mistake or must otherwise reasonably explain that its



3
 The courts of appeals are divided on whether the Rule 165a standard applies to all dismissals for want of prosecution,
or only to dismissals for a failure to appear. Compare Cappetta, 222 S.W.3d at 166, with Binner, 129 S.W.3d at 712–
13.

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actions were not intentional or consciously indifferent.” Capetta, 222 S.W.3d at 167. (quoting

Rampart Capital Corp. v. Maguire, 1 S.W.3d 106, 107 (Tex. 1999) (Hecht, J., dissenting from

denial of petition for review)). The party’s “failure” that must be explained is the one that led to

dismissal. See Rampart Capital Corp. v. Maguire, 974 S.W.2d 195, 197 (Tex. App.—San Antonio

1998, pet denied); Maida v. Fire Ins. Exchange, 990 S.W.2d 836, 839 (Tex. App.—Fort Worth

1999, no pet.); Shook v. Gilmore & Tatge Mfg. Co., 951 S.W.2d 294, 297 (Tex. App.—Waco 1997,

pet denied). “A failure is not intentional or due to conscious indifference within the meaning of

the rule merely because it is deliberate; it must also be without adequate justification. Proof of

such justification—accident, mistake or other reasonable explanation—negates the intent or

conscious indifference for which reinstatement can be denied.” Smith, 913 S.W.2d at 468.

Conscious indifference means more than mere negligence. Id.

                                                    DISCUSSION

         Morales argues that the correct application of the Rule 165a reinstatement standard would

have required the trial court to reinstate her case. At the reinstatement hearing, Morales argued her

case should be reinstated because her attorney did not receive the trial court’s order setting her

case on the dismissal docket and because her attorney’s paralegal was informed by the La Salle

County District Clerk’s office that her case had no settings. We review the denial of a motion to

reinstate under an abuse-of-discretion standard. Id.

         To determine whether Morales was entitled to reinstatement, we must determine what

“failure” by Morales led to the trial court’s dismissal of her case. Rule 6 of the Texas Rules of

Judicial Administration, referenced in both the trial court’s notice 4 and dismissal order, sets forth

the time standards under which trial courts are expected to—so far as reasonably possible—ensure


4
 The trial court’s January order setting Morales’s case for the March dismissal docket served as notice of its intent to
dismiss Morales’s case.

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cases reach final disposition. TEX. R. JUD. ADMIN. 6, reprinted in TEX. GOV’T CODE ANN., tit. 2,

subtit. F, app. (West 2013). A case not disposed of within these time standards may be dismissed

for want of prosecution under Rule 165a(2). See Villarreal, 994 S.W.2d at 630 & n.3; Johnson-

Snodgrass v. KTAO, Inc., 75 S.W.3d 84, 87–88 (Tex. App.—Fort Worth 2002, pet. dism’d).

       The court’s notice indicated that Morales’s case would have been on the court’s docket for

longer than twelve months on the date of the March dismissal docket. Rule 6 provides that civil

nonjury cases should be finally disposed of within twelve months from appearance date. TEX. R.

JUD. ADMIN. 6.1 (b)(1). The notice clearly indicates that the court desires to comply with the

Supreme Court’s time standards, and “therefore,” unless Morales’s case was scheduled for trial on

the merits by March 14, 2013, her case would be dismissed for want of prosecution on that date.

Use of the word “therefore” again ties possible dismissal to Rule 6 and Rule 165a. See Johnson-

Snodgrass, 75 S.W.3d at 88. The notice was sufficient to advise Morales that the trial court was

considering dismissing her case for failure to comply with the time standards of Rule 6, but not on

any other basis. See id. A plain reading of the trial court’s dismissal order shows that—consistent

with its notice—the court dismissed Morales’s case under its power to dismiss cases not disposed

of within the time standards of Rule 6. See Goff v. Branch, 821 S.W.2d 732, 735 (Tex. App.—San

Antonio 1991, writ denied) (“[T]he dismissal judgment, which was based on a notice invoking the

provisions of Rule 165a(1), clearly was also rendered under the provisions of this same rule.”),

overruled on other grounds by Capetta, 222 S.W.3d at 166–67.

       The trial court’s notice, however, permitted Morales to avoid dismissal if, prior to the

March dismissal hearing, her case was set for trial. Accordingly, if Morales’s case had been set for

trial prior to the March dismissal hearing, the trial court would have abused its discretion in

dismissing her case. See Villarreal, 994 S.W.2d at 631. Thus, in accordance with the trial court’s



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notice, Morales was required to explain her “failure” of not setting her case for trial prior to the

March dismissal hearing in order to merit reinstatement. See id.

         At the reinstatement hearing, Morales’s attorney testified that his office did not receive the

court’s notice and that the first time he saw the trial court’s notice was when he received the

District’s response to the motion to reinstate. He acknowledged that he did receive the computer

generated list of cases that was supposed to accompany the notice. 5 The heading on the list stated:

                             81st/218th DISTRICT COURTS
                       DOCKET TYPE: DISMISS – COUNTY: (LAS)
                  DOCKET DATES 03/14/2013 THROUGH 03/14/2013 – PAGE 1

Morales’s attorney explained that he was unfamiliar with the trial court’s practice setting cases on

the dismissal docket on its own motion, and he therefore asked his paralegal to inquire whether

Morales’s case was actually set for a dismissal hearing. He further explained that he primarily

practices in Laredo, Texas, and did not want to travel to La Salle County without making sure that

Morales’s case actually had a setting. His paralegal testified that she called the clerk’s office on

February 26, 2013, asked if Morales’s case had any scheduled settings, and was informed there

were no upcoming settings. Morales’s attorney also testified that, after Morales’s case was

dismissed, he had spoken with the La Salle County District Clerk’s office and learned that the

dismissal docket is kept separately from the regular docket.

         The District did not controvert Morales’s attorney’s account of his actions leading up to

the dismissal hearing. Nevertheless, in denying Morales’s motion to reinstate, the trial court found

that “[i]n this case Judge Rayes gave notice. The notice was received.”




5
 Morales’s counsel did not testify under oath, but the oath requirement was waived when the District did not raise an
objection under circumstances that clearly indicated her attorney was tendering evidence on the record based on
personal knowledge. See Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005) (citing Banda v. Garcia, 955 S.W.2d
270, 272 (Tex. 1997)).

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        Morales’s case is similar to the case of Cliff v. Huggins, 696 S.W.2d 175 (Tex. App.—San

Antonio 1985) (Cliff I), rev’d, 724 S.W.2d 778 (Tex. 1987) (Cliff II). In that case, the trial court

rendered a default judgment following the defendant’s failure to appear for trial, and this court

affirmed the trial court’s denial of the defendant’s motion for new trial. At the motion for new

trial, both the defendant and his attorney testified that they never received notice of the trial setting

and were unaware of the setting until after it had passed. Cliff II, 724 S.W.2d 778.

        Although the defendant and his attorney testified that they never received any notice, a

court reporter testified that he had sent the notice to all the parties via United States mail. Cliff I,

696 S.W.2d at 176. On appeal, this court relied on the court reporter’s testimony and reasoned that

there was a presumption that the notice of trial setting was complete when mailed by the court

reporter. Id. at 177. We then deferred to the trial court’s implied factual finding that the appellant

did not rebut the presumption of receipt of notice of trial setting and therefore affirmed the denial

of his motion for new trial. Id. at 177–78.

        The Supreme Court reversed and held that a proper application of the Craddock conscious-

indifference standard required a conclusion that the appellant had not acted intentionally or with

conscious indifference by failing to appear for trial. Cliff II, 724 S.W.2d at 779. The Court

characterized the defendant’s evidence that neither he nor his attorney received the notice as

uncontroverted and held it was sufficient to meet the conscious indifference standard because the

defendant’s motion and affidavits set forth facts which, if true, would negate intentional or

consciously indifferent conduct. Id.; see Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005)

(“Testimony by Lockwood’s counsel that notice was sent did not contradict Mathis’s testimony

that notice was never received.”).

        Similar to Cliff II, we conclude that the evidence presented by Morales set forth facts that,

if true, would negate intentional or consciously indifferent conduct. Without the trial court’s
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notice, Morales’s attorney could not be aware of the basis for the proposed dismissal or that he

was required to set Morales’s case for trial prior to the March dismissal hearing. The District did

not offer any evidence that Morales’s attorney did receive the trial court’s notice. The certificate

of service on the notice is the only evidence that notice was received, but that is insufficient to

controvert the testimony of Morales’s attorney that he received only the dismissal docket printout,

and not the notice. See Cliff II, 724 S.W.2d at 779; Mathis, 166 S.W.3d at 745.

        The District also did not offer any evidence controverting the paralegal’s testimony that

she was informed by the District Clerk’s office that Morales’s case had no scheduled settings. The

paralegal’s testimony supports the conclusion that Morales’s failure to set her case for trial on the

merits pursuant to the trial court’s notice was not the result of intentional or consciously indifferent

conduct.

        We hold that the testimony of Morales’s counsel and his paralegal shows that Morales’s

failure to set her case for trial prior to the March dismissal hearing, as required by the trial court’s

notice, was neither intentional nor the result of consciously indifferent conduct. See Cliff II, 724

S.W.2d at 779; see also Milestone Operating, Inc. v. ExxonMobil Corp., 388 S.W.3d 307 (Tex.

2012) (per curiam) (summarily reversing lower court and holding defendant satisfied Craddock

conscious-indifference standard following no-answer default judgment where the defendant’s

registered service agent testified that he was familiar with his duties following being served and

that he did not recall being served with the plaintiff’s petition, despite evidence that agent did

receive the process papers). The trial court abused its discretion in ruling otherwise.




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                                                  CONCLUSION

         We hold the trial court abused its discretion by denying Morales’s motion to reinstate. 6 We

reverse the trial court’s judgment of dismissal and remand the case to the trial court with

instructions to reinstate the case on its docket.

                                                           Luz Elena D. Chapa, Justice




6
  Because we reverse the trial court’s order denying the motion to reinstate, we do not separately address whether the
trial court abused its discretion in dismissing Morales’s case. See Bates v. Sunshine RV, Ltd., No. 04-09-00818-CV,
2010 WL 3582487, at *2 n.2 (Tex. App.—San Antonio Sept. 15, 2010, no pet.) (mem. op.) (citing TEX. R. APP. P.
47.1).

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