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                                 MEMORANDUM OPINION

                                        No. 04-08-00907-CV

                                        Maria Elsa VARGAS,
                                              Appellant

                                                   v.

                                        Mario NAKAZONO,
                                              Appellee

                      From the 111th Judicial District Court, Webb County, Texas
                                Trial Court No. 2008CVQ000472 D2
                              Honorable Raul Vasquez, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: November 4, 2009

AFFIRMED

           This is a restricted appeal from an order dismissing the underlying cause for lack of

prosecution. Maria Elsa Vargas asserts the trial court abused its discretion in dismissing her case

because the trial “court did not provide adequate notice that a dismissal was intended, such that

Vargas’[s] right to due process was denied.” Vargas contends that she never received written notice

of the dismissal hearing.
                                                                                          04-08-00907-CV



        Initially, we note that the trial court’s order states that the attorney of record was “duly

notified.” We presume the recital in the order is correct absent controverting proof in the record.

See CVN Group, Inc. v. Delgado, No. 03-07-00291-CV, 2009 WL 2837691, at *2 (Tex.

App.—Austin Aug. 31, 2009, no pet. h.); In re B.D., 16 S.W.3d 77, 80 (Tex. App.—Houston [1st

Dist.] 2000, pet. denied); MJR Fin., Inc. v. Marshall, 840 S.W.2d 5, 9 (Tex. App.—Dallas 1992,

orig. proceeding).

        “When a party claims in a restricted appeal that required notice was not given or a required

hearing was never held, the error must appear on the face of the record.” Ginn v. Forrester, 282

S.W.3d 430, 432 (Tex. 2009). “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.” Id.

        “The rules governing dismissals for want of prosecution direct the district clerk to mail notice

containing the date and place of hearing at which the court intends to dismiss the case, TEX . R. CIV .

P. 165a(1), and a similar notice of the signing of the dismissal order, see TEX . R. CIV . P. 306a(3).”

Id. at 433. “But the rules do not impose upon the clerk an affirmative duty to record the mailing of

the required notices; accordingly, the absence of proof in the record that notice was provided does

not establish error on the face of the record.” Id.

        In the present case, the record contains an order reciting that notice was given, and the record

is otherwise silent with regard to notice. Accordingly, because Vargas failed to establish error on

the face of the record, the trial court’s order is affirmed.

                                                         Catherine Stone, Chief Justice




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