CROSSOVER: Unverified Rule 165a Motion Won’t Save a Family Case—or Extend the Appeal Deadline

Weisbard v. Sutton Health Care Center Ltd. Co., 05-25-01706-CV, September 22, 2026.

On appeal from 366th Judicial District Court, Collin County, Texas

Synopsis

A motion to reinstate following a dismissal for want of prosecution does not extend the notice-of-appeal deadline unless it complies with Texas Rule of Civil Procedure 165a(3), including the verification requirement, within the thirty-day filing period. Adding verification after that period does not preserve the trial court’s plenary power, and a later order signed after plenary power expires is void and cannot restart appellate deadlines.

Relevance to Family Law

This rule applies directly to divorce, SAPCR, custody-modification, enforcement, and property litigation dismissed for want of prosecution. Family-law practitioners cannot treat a timely but unverified motion to reinstate as sufficient to preserve either the trial court’s authority or the extended appellate timetable. If verification is omitted and not supplied within Rule 165a(3)’s thirty-day period, counsel should calculate the notice-of-appeal deadline from the original dismissal order—not from a later hearing or order addressing reinstatement.

Case Summary

Fact Summary

The trial court dismissed the case for want of prosecution on September 11, 2025. The appellant filed a motion to reinstate on October 3, within thirty days of the dismissal, but the motion was not verified as required by Texas Rule of Civil Procedure 165a(3).

The appellant did not add verification until November 24, after Rule 165a(3)’s thirty-day period had expired. On December 1, the trial court signed an order denying reinstatement and dismissing the case with prejudice. The appellant filed a notice of appeal on December 29, treating the December 1 order as an independently appealable final judgment that triggered a new appellate timetable.

The Fifth Court of Appeals questioned its jurisdiction. It concluded that the original, September 11 dismissal order triggered the appellate deadlines because the motion to reinstate had not been timely verified. The court further concluded that the trial court’s plenary power had expired before it signed the December 1 order.

Issues Decided

• Whether a motion to reinstate filed within thirty days of a dismissal for want of prosecution extends the appellate timetable when the motion is not verified.

• Whether verification added after Rule 165a(3)’s thirty-day period can make the motion effective or preserve the trial court’s plenary power.

• Whether a later order denying reinstatement and dismissing the case with prejudice constitutes a new final judgment that restarts the appellate timetable.

• Whether a notice of appeal filed more than two months after the applicable deadline invoked the court of appeals’ jurisdiction.

Rules Applied

• Texas Rule of Civil Procedure 165a(3): A motion to reinstate following dismissal for want of prosecution must set forth the grounds for reinstatement, be verified by the movant or the movant’s attorney, and be filed within thirty days after the dismissal order is signed.

• Texas Rule of Appellate Procedure 26.1(a)(3): A timely filed motion to reinstate under Rule 165a extends the notice-of-appeal deadline to ninety days after the judgment is signed.

• Texas Rule of Appellate Procedure 26.3: A court of appeals may extend the time to file a notice of appeal if the notice and an extension motion are filed within the rule’s fifteen-day extension period.

• Mitschke v. Borromeo, 645 S.W.3d 251, 253 (Tex. 2022): The timely filing of a notice of appeal is jurisdictional.

• Novoa v. Viramontes, 553 S.W.3d 45, 51 (Tex. App.—El Paso 2018, no pet.): An unverified motion to reinstate filed during the thirty-day period is ineffective, and a verified motion filed after that period is likewise ineffective.

• Jarrell v. Bergdorf, 580 S.W.3d 463, 465–66 (Tex. App.—Houston [14th Dist.] 2019, no pet.): An order denying reinstatement is not independently appealable, and appellate deadlines run from the final judgment rather than the later order denying reinstatement.

• State ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995) (per curiam): An order signed after the trial court loses plenary power is void.

Application

The appellant filed his motion to reinstate within thirty days of the September 11 dismissal, but the motion was not verified. The court treated verification as a necessary component of a Rule 165a(3) motion—not as a technical defect that could be corrected at any time. Because the verification was not supplied until November 24, the appellant did not file a qualifying Rule 165a motion within the prescribed period.

Without a timely and verified Rule 165a motion, Texas Rule of Appellate Procedure 26.1(a)(3) did not extend the appellate timetable to ninety days. The notice of appeal therefore remained due thirty days after the September 11 dismissal, subject only to Rule 26.3’s fifteen-day extension period. According to the court, the latest applicable deadline was October 26, 2025.

The same defect affected the trial court’s authority. Because no qualifying motion extended plenary power, the trial court’s plenary jurisdiction expired thirty days after the dismissal. The verification added in November could not retroactively preserve that jurisdiction.

The December 1 order could not supply a new appellate starting point. Although that order denied reinstatement and purported to dismiss the case with prejudice, the trial court signed it after its plenary power had expired. The order was therefore void, and a void order could neither alter the original dismissal nor restart the deadline to appeal it.

Because the notice of appeal was not filed until December 29, more than two months after the latest applicable deadline, the court of appeals lacked jurisdiction and dismissed the appeal.

Holding

An unverified motion to reinstate does not comply with Texas Rule of Civil Procedure 165a(3), even if it is filed within thirty days after the dismissal order. It therefore does not extend the notice-of-appeal deadline under Texas Rule of Appellate Procedure 26.1(a)(3).

Verification added after Rule 165a(3)’s thirty-day period does not make the earlier motion effective. The late verification also does not extend or revive the trial court’s plenary power.

An order signed after the trial court’s plenary power expires is void. The December 1 order denying reinstatement and purporting to dismiss the case with prejudice consequently did not create a new final judgment or restart the appellate timetable.

The December 29 notice of appeal was untimely when measured from the September 11 dismissal order. Because timely notice of appeal is jurisdictional, the Fifth Court of Appeals dismissed the appeal.

Practical Application

In a divorce or SAPCR dismissed from the docket, counsel should treat the Rule 165a verification requirement as a jurisdictionally consequential filing requirement. The motion should be verified before filing, either by the client or by counsel, and the verification should be based on personal knowledge sufficient to support the grounds asserted.

The rule is equally important in post-divorce property disputes, custody and support modifications, and enforcement proceedings. A dismissal may terminate the pending proceeding even though an earlier divorce decree or SAPCR order remains operative. If the dismissed proceeding must be reinstated, an unverified motion will not preserve the extended appellate timetable.

Counsel should maintain parallel deadline calculations. One calculation should assume the motion to reinstate is effective and that Rule 26.1(a) applies. A second, conservative calculation should assume the motion is ineffective and use the original thirty-day deadline, including the limited Rule 26.3 extension period. If there is any uncertainty about verification, filing a protective notice of appeal from the original dismissal is ordinarily safer than relying on a later reinstatement ruling.

The opinion also cautions against using a later order as the appellate trigger without first examining plenary power. Adding “with prejudice” language or otherwise changing the stated effect of a dismissal does not create a valid new judgment if the court lacked jurisdiction to sign the order. Before calculating an appellate deadline from a later order, counsel should determine whether a timely post-judgment motion extended plenary power through the date the later order was signed.

Checklists

Responding to a Dismissal for Want of Prosecution

• Obtain the signed dismissal order immediately.
• Confirm the exact date on which the order was signed.
• Determine whether notice of the dismissal was received late and whether Texas Rule of Civil Procedure 306a may apply.
• Calendar the thirty-day deadline for filing a Rule 165a motion to reinstate.
• Calendar the ordinary notice-of-appeal deadline from the original dismissal.
• Calendar the fifteen-day extension period under Texas Rule of Appellate Procedure 26.3.
• Do not calculate appellate deadlines solely from a scheduled reinstatement hearing or anticipated ruling.

Preparing the Motion to Reinstate

• Identify Texas Rule of Civil Procedure 165a(3) as the procedural basis for reinstatement.
• State specific grounds explaining the failure to appear or prosecute.
• Address whether the failure was intentional or the result of conscious indifference.
• Include facts showing accident, mistake, or another reasonable explanation where applicable.
• Include a proper verification from the client or attorney.
• Confirm that the verification is executed before the motion is filed.
• File both the motion and its verification within the thirty-day period.
• Retain the file-stamped copy and electronic-filing confirmation.

Protecting the Appellate Deadline

• Determine whether the motion actually complies with every requirement of Rule 165a(3).
• Do not assume that filing a document titled “motion to reinstate” extends the appellate timetable.
• If verification is absent or questionable, calculate the notice deadline from the original dismissal.
• Consider filing a protective notice of appeal before the original deadline expires.
• If necessary, file the notice and an extension motion within Rule 26.3’s fifteen-day period.
• Do not wait for the trial court to conduct a hearing or sign an order if the appellate deadline will expire first.
• Confirm separately whether another timely post-judgment motion extends the appellate timetable.

Evaluating a Later Trial-Court Order

• Calculate when the trial court’s plenary power expired.
• Identify every timely and qualifying post-judgment motion that may have extended plenary power.
• Confirm that any order modifying the dismissal was signed while the trial court retained jurisdiction.
• Do not assume that new language, including “with prejudice,” makes a post-plenary order valid.
• Determine whether the later order is void rather than merely erroneous.
• Calculate appellate deadlines from the original final order unless a valid rule provides otherwise.

Family-Law File Controls

• Use separate deadline entries for the dismissal, reinstatement motion, plenary-power expiration, notice of appeal, and Rule 26.3 extension period.
• Apply the same controls to divorces, SAPCRs, modifications, enforcements, and post-divorce property cases.
• Confirm whether the dismissal disposes of all pending claims and parties.
• Determine the effect of dismissal on any temporary orders, injunctions, or ancillary proceedings.
• Coordinate trial and appellate responsibility before the earliest deadline.
• Document who is responsible for filing the motion to reinstate and any protective notice of appeal.

Citation

Weisbard v. Sutton Health Care Center Ltd. Co., No. 05-25-01706-CV (Tex. App.—Dallas Sept. 22, 2026, no pet. h.) (mem. op.).

Full Opinion

Read the full opinion.

Family Law Crossover

The crossover mechanism is Rule 165a reinstatement following a dismissal for want of prosecution. When a Texas divorce, SAPCR, custody-modification, enforcement, or post-divorce property case is dismissed from the docket, a party seeking reinstatement must file a motion satisfying all requirements of Rule 165a(3), including verification, within thirty days after the dismissal order is signed, subject to any properly established Rule 306a timetable.

A motion filed within thirty days but lacking verification does not trigger the ninety-day appellate deadline under Texas Rule of Appellate Procedure 26.1(a)(3). Supplying verification after the thirty-day period does not cure the problem for purposes of extending plenary power or appellate jurisdiction. If no other qualifying post-judgment motion applies, the trial court loses plenary power under the ordinary timetable, and an order later signed in the case is void.

For family-law litigators, the operative procedure is therefore twofold: file a fully compliant, verified Rule 165a motion within the prescribed period, and independently protect the appeal from the original dismissal. A later order denying reinstatement—or purporting to change the dismissal to one with prejudice—cannot safely be used as the appellate trigger unless the trial court still had plenary power when that order was signed.

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