
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


M E M O R A N D U M   O P I N I O N



		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
