Rule 165a(3) Verification Requires Personal Knowledge | In re J.R.M. (2026)

In the Interest of J.R.M., a Child, 13-25-00544-CV, November 05, 2026.

On appeal from 389th District Court of Hidalgo County, Texas

Synopsis

An attorney’s affidavit does not properly verify a Rule 165a(3) motion to reinstate merely by reciting “personal knowledge” when the record establishes that counsel became involved only after dismissal and lacked personal knowledge of the case’s prior prosecution. Because the defective motion did not extend the appellate timetable under Texas Rule of Appellate Procedure 26.1(a), the Thirteenth Court of Appeals dismissed the untimely appeal for want of jurisdiction.

Relevance to Family Law

Family-law cases are particularly vulnerable to dismissal-for-want-of-prosecution problems because they may remain pending through mediation, custody evaluations, discovery disputes, attorney substitutions, or prolonged settlement negotiations. In re J.R.M. confirms that, after a divorce, SAPCR, modification, enforcement, or property case is dismissed, newly retained counsel cannot safely verify a motion to reinstate based only on a review of the file or counsel’s status as attorney of record. The verification must come from a person with personal knowledge of the relevant facts—often the client, prior counsel, or another competent witness—and a defective verification can eliminate both the right to a mandatory Rule 165a hearing and the extended deadline for filing a notice of appeal.

Case Summary

Fact Summary

The underlying proceeding arose from a motion to modify a suit affecting the parent-child relationship. On August 4, 2025, the trial court conducted a dismissal-for-want-of-prosecution hearing at which J.M. appeared without counsel. J.M. discussed his efforts to retain another attorney and the cancellation of mediations, but the trial court dismissed the case and signed its dismissal order that day.

Four days later, attorney Reynaldo G. Garza III filed a motion to reinstate for J.M. The motion asserted that another party’s attorney had filed a motion for a docket-control conference, that the parties had previously participated in an unsuccessful mediation, that the case remained active, and that the dismissal did not result from J.M.’s intentional delay or conscious indifference. The motion also stated that J.M. had “now retained” Garza to assist with the matter.

Garza attached an affidavit stating that he had read the motion and that every statement in it was within his personal knowledge and was true and correct. The record, however, showed that Garza did not enter the case until after its dismissal. He had not participated in the earlier mediation, did not file the motion for a docket-control conference, and had not represented J.M. while the case was pending before dismissal.

The trial court did not conduct a hearing on the motion to reinstate. J.M. filed his notice of appeal on October 22, 2025—seventy-nine days after the dismissal order was signed—and argued that the trial court reversibly erred by failing to hold the hearing required by Rule 165a(3).

Issues Decided

• Whether an attorney’s affidavit properly verifies a Rule 165a(3) motion to reinstate when the attorney recites personal knowledge but became involved only after dismissal and lacked personal knowledge of the facts concerning the case’s prosecution.

• Whether an improperly verified motion to reinstate extends the deadline for filing a notice of appeal under Texas Rule of Appellate Procedure 26.1(a).

• Whether the court of appeals had jurisdiction over a notice of appeal filed seventy-nine days after the trial court signed the dismissal order.

• Whether the motion invoked Rule 165a’s requirement that the trial court conduct an oral hearing.

Rules Applied

Texas Rule of Civil Procedure 165a(3) provides the procedural mechanism for seeking reinstatement after a dismissal for want of prosecution. The motion must state the grounds for reinstatement, must be verified by the movant or the movant’s attorney, and generally must be filed within thirty days after the dismissal order is signed, subject to Rule 306a.

Although Rule 165a does not expressly define “verified,” Texas courts require the verification to rest on personal knowledge. An attorney may verify a motion when the attorney personally knows the relevant facts, but counsel cannot verify facts merely by virtue of serving as the party’s lawyer. An affidavit that recites personal knowledge without demonstrating a basis for that knowledge is legally insufficient.

The court distinguished Guest v. Dixon, 195 S.W.3d 687 (Tex. 2006), in which the attorney who verified the reinstatement motion had represented the party during much of the case and knew the facts surrounding its prosecution. The court also relied on authorities including Twist v. McAllen National Bank, 294 S.W.3d 255 (Tex. App.—Corpus Christi–Edinburg 2009, no pet.), for the proposition that a verification lacking personal knowledge of at least some relevant facts is no verification at all.

Under Texas Rule of Appellate Procedure 26.1, a notice of appeal ordinarily must be filed within thirty days after the judgment or appealable order is signed. A timely and procedurally effective motion to reinstate can extend that deadline. An unverified or defectively verified motion, however, does not extend either the trial court’s plenary power or the appellate timetable.

Rule 165a also requires an oral hearing when a party timely files a properly verified motion to reinstate. A motion that does not satisfy the verification requirement does not invoke that mandatory hearing procedure.

Application

The court looked beyond the affidavit’s formulaic statement that all facts were within Garza’s personal knowledge. The record affirmatively established that Garza became involved only after the trial court had dismissed the case. The motion itself said that J.M. had “now retained” Garza, and J.M. had appeared pro se at the dismissal hearing four days earlier.

The substantive grounds for reinstatement concerned events predating Garza’s involvement. Another party’s attorney had filed the motion for a docket-control conference. J.M. had been represented by different counsel during the unsuccessful mediation. Garza’s first appearance occurred after the dismissal, so he could not attest from personal knowledge to the efforts made to prosecute the case, the reasons for prior inactivity, or whether J.M.’s conduct demonstrated intentional delay or conscious indifference.

The affidavit therefore depended on Garza’s status as current counsel or his review of information supplied by others—not on personal knowledge of the pertinent events. Merely including the phrase “personal knowledge” did not cure that substantive deficiency.

Because the motion was not properly verified, it did not extend the deadline for filing the notice of appeal. The appellate deadline remained thirty days after the August 4, 2025 dismissal order. J.M. did not file his notice until October 22, 2025, seventy-nine days after the order was signed. The appellate court therefore lacked jurisdiction to consider the merits of his complaint.

The defective verification also defeated J.M.’s argument that the trial court was required to conduct a hearing. Rule 165a’s mandatory-hearing requirement applies only when the movant timely files a properly verified motion to reinstate. Because J.M. failed to satisfy that threshold requirement, he never invoked the rule’s hearing protections.

Holding

The court held that Garza’s affidavit did not properly verify the motion to reinstate. Although the affidavit asserted personal knowledge, the record demonstrated that Garza was retained only after dismissal and lacked personal knowledge of the facts concerning the case’s prosecution before dismissal.

The court further held that the defective motion did not extend the appellate timetable under Texas Rule of Appellate Procedure 26.1(a). The notice of appeal was therefore due thirty days after the trial court signed the dismissal order.

Because J.M. filed his notice of appeal seventy-nine days after the dismissal order, the court held that the notice was untimely and dismissed the appeal for want of jurisdiction. The court additionally explained that an improperly verified motion does not invoke Rule 165a’s mandatory-hearing requirement.

Practical Application

The central practice point is that verification is an evidentiary requirement, not a signature formality. When family-law counsel enters a case after a DWOP order, counsel should not personally verify historical facts merely because the file contains pleadings, emails, mediation records, or docket activity supporting those facts. Knowledge acquired from documents or another person ordinarily is not the same as personal knowledge of the events.

In a post-dismissal substitution scenario, the safer course is usually to obtain the client’s sworn declaration or affidavit. The client may be able to establish efforts to communicate with counsel, attendance at mediation, attempts to obtain settings, compliance with discovery, reasons for inactivity, and the absence of intentional delay or conscious indifference. If prior counsel personally handled prosecution of the case, prior counsel may provide a separate affidavit addressing docket activity and litigation efforts.

Counsel should also match each factual assertion to a competent affiant. In a custody modification, for example, the client may verify attempts to move the case forward, while former counsel verifies communications with the coordinator, mediation scheduling, discovery activity, and efforts to secure a trial setting. Attaching docket sheets, correspondence, mediation records, and filed pleadings may corroborate the motion, but documentary support should not be assumed to replace the verification required by Rule 165a(3).

The case also requires dual-track deadline management. Counsel should calendar the ordinary thirty-day notice-of-appeal deadline from the date the DWOP order is signed and should not rely on the extended timetable until satisfied that the reinstatement motion is timely and properly verified. If there is any doubt about the verification, filing a protective notice of appeal is substantially safer than assuming the motion extended the deadline.

Finally, counsel should not wait for the trial court to set a reinstatement hearing. After filing a properly verified motion, promptly request an oral hearing, obtain a setting, and create a record of those efforts. But the hearing request does not repair a defective verification: the motion must first satisfy Rule 165a(3).

Checklists

Preparing the Motion to Reinstate

• Confirm the date on which the trial court signed the DWOP order.
• Calculate the Rule 165a(3) filing deadline, including any properly invoked Rule 306a issue.
• State specific grounds explaining why the failure to prosecute was not intentional or the result of conscious indifference.
• Describe concrete prosecution activity, including discovery, mediation, settlement efforts, custody evaluations, docket-control requests, or trial-setting requests.
• Identify who has personal knowledge of each material fact.
• Avoid conclusory assertions that the case was “active” without supporting facts.
• Attach corroborating docket entries, correspondence, mediation records, discovery, and setting requests when useful.
• Ensure that the motion and verification are filed within the applicable deadline.

Selecting the Proper Affiant

• Use the client when the client personally knows the relevant history and reasons for inactivity.
• Use prior counsel when prior counsel handled the case before dismissal and personally knows the prosecution history.
• Use current counsel only for facts current counsel personally observed or handled.
• Do not rely on current counsel’s status as attorney of record to establish personal knowledge.
• Do not assume that reviewing the file gives new counsel personal knowledge of historical events.
• Consider separate affidavits when no single witness has personal knowledge of all material facts.
• Confirm that the affidavit or unsworn declaration identifies a factual basis for the affiant’s knowledge.

Protecting the Appellate Timetable

• Calendar the ordinary thirty-day deadline for filing the notice of appeal.
• Separately calendar any potentially extended deadline under Texas Rule of Appellate Procedure 26.1(a).
• Do not treat the deadline as extended until the reinstatement motion has been reviewed for timeliness and proper verification.
• File a protective notice of appeal if any uncertainty exists concerning the motion’s procedural validity.
• Evaluate immediately whether the fifteen-day extension procedure under Texas Rule of Appellate Procedure 26.3 remains available.
• Do not assume that a pending motion or an anticipated hearing preserves appellate jurisdiction.
• Document the deadline analysis in the file.

Securing the Reinstatement Hearing

• File a timely and properly verified motion before requesting relief under Rule 165a(3).
• Request an oral hearing promptly after filing.
• Contact the court coordinator and obtain a definite setting.
• Serve the hearing notice on all parties.
• Prepare testimony and exhibits addressing diligence, intentional conduct, and conscious indifference.
• Obtain a reporter’s record of the hearing when appellate review may be necessary.
• Secure a written ruling and monitor the date on which the motion may be overruled by operation of law.
• Preserve appellate complaints without assuming that the hearing request extends jurisdictional deadlines.

Handling a Case After Substitution of Counsel

• Review the docket immediately for dismissal notices, DWOP orders, and expired settings.
• Interview the client and prior counsel about the complete prosecution history.
• Determine which facts are within the client’s personal knowledge and which require testimony from prior counsel.
• Obtain the file from former counsel without delaying jurisdictional filings.
• Avoid signing a blanket verification covering events that occurred before the substitution.
• File the strongest procedurally compliant motion available while preserving the right to appeal.
• Treat the reinstatement and appellate tracks as concurrent rather than sequential.

Citation

In the Interest of J.R.M., a Child, No. 13-25-00544-CV (Tex. App.—Corpus Christi–Edinburg Nov. 5, 2026, no pet. h.) (mem. op.).

Full Opinion

Read the full opinion

~~118a4145-f4dc-4afd-973a-f7d7638b6925~~