Introduction

Cases don’t always die on the merits. In Texas, many lawsuits are dismissed simply because they stall out. A Dismissal for Want of Prosecution (DWOP) can feel like a quiet administrative death—but it is often reversible if you move quickly and correctly.

The motion to reinstate is one of the most underutilized procedural tools in Texas litigation. When used properly, it can revive a case that would otherwise be permanently lost.

The Legal Framework: Texas Rule of Civil Procedure 165a

The governing rule is Texas Rule of Civil Procedure 165a, which provides both the authority for dismissal and the mechanism for reinstatement.

Grounds for DWOP

Under TRCP 165a(1):

“A case may be dismissed for want of prosecution on failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice.”

Additionally, courts retain inherent authority to dismiss cases that are not diligently prosecuted.

The Right to Reinstate

The real power lies in TRCP 165a(3), which states:

“The 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…”

This language is critical. It creates a mandatory reinstatement if the movant meets the standard.

The Key Standard: “Not Intentional or the Result of Conscious Indifference”

This phrase is the heart of the motion—and where most lawyers win or lose.

Texas courts interpret this standard similarly to default judgment cases. The question is not whether the conduct was negligent, but whether it reflects:

• Intentional disregard, or
• Conscious indifference

What Works (Typically):

• Calendar errors
• Miscommunication between attorney and staff
• Mistaken belief about hearing settings
• Administrative or clerical failures

What Fails:

• Ignoring the case for extended periods
• Repeated non-appearances
• Lack of any explanation

The burden is low—but not nonexistent.

Deadlines: Move Fast or Lose the Case

Timing is everything.

Under TRCP 165a(3):

“The motion to reinstate shall be filed with the clerk within 30 days after the order of dismissal is signed…”

And importantly:

• The motion extends plenary power just like a motion for new trial
• The court must hold a hearing if properly requested

Miss the 30-day window, and your options become significantly worse (typically requiring a bill of review).

Verification Requirement: A Common Trap

The rule also requires:

“The motion shall be verified by the movant or his attorney.”

This is not optional.

An unverified motion to reinstate is defective and can be denied outright—even if your explanation is otherwise strong.

Strategic Considerations

1. Always Request a Hearing

Courts are required to reinstate upon proof—but only after a hearing. Don’t rely on submission.

2. Use Detailed Affidavits

Barebones explanations are risky. Include:

• Timeline of events
• Specific mistake or accident
• Affirmative statement of lack of intent

3. Frame It Like a Default Judgment Case

Courts are familiar with this analysis. Position your facts accordingly.

4. Be Honest—but Structured

Judges see these constantly. A clean, credible explanation beats over-lawyering.

Interaction with the Court’s Plenary Power

A timely motion to reinstate extends the court’s plenary power under:

• TRCP 329b

This means:

• The court retains jurisdiction longer
• You preserve the ability to fix the case

Failing to file the motion can cause jurisdiction to expire, locking in the dismissal.

Practical Example

Imagine this scenario:

• Your case is set for dismissal docket
• Your office mis-calendars the hearing
• No one appears
• The case is dismissed

This is exactly the type of situation where a motion to reinstate should succeed, provided:

• You file within 30 days
• You verify the motion
• You explain the mistake clearly

Why This Matters More Than You Think

In busy jurisdictions—especially Harris County—DWOPs are routine. Courts use them to manage crowded dockets.

But here’s the reality:

• Many cases dismissed for want of prosecution are completely viable
• Many lawyers fail to reinstate simply due to procedural missteps

This creates a quiet but significant source of avoidable malpractice exposure.

Conclusion

The motion to reinstate is not glamorous—but it is powerful.

It turns what looks like a dead case into a recoverable one, often with minimal friction if handled correctly.

The key is understanding that Texas law does not punish mistakes—it punishes indifference.

If you can show the difference, your case is very much alive.

At David C. Barsalou, Attorney at Law, PLLC, we help clients navigate business, family, tax, estate planning, and real estate matters ranging from document drafting to litigation with clarity and confidence. If you’d like guidance on your situation, schedule a consultation today. Call us at (713) 397-4678, email barsalou.law@gmail.com, or reach us through our Contact Page. We’re here to help you take the next step.