Mechanism 28

Reinstatement after dismissal for want of prosecution

By John P. Henry · Tex. R. Civ. P. 165a · Reviewed 2026-08-02

The authority

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 or that the failure has been otherwise reasonably explained.Tex. R. Civ. P. 165a(3)

Tex. R. Civ. P. 165a

When it applies

A missed dismissal docket, a case that went quiet during settlement, a file where the notice went to an old address. It is also the answer for a case sent to arbitration and forgotten, where the court needs to survive in order to confirm the award.

How it is proved up

1. Verify it. An unverified motion to reinstate is the classic malpractice fact pattern — the rule requires verification by the movant or the attorney and courts enforce it.
2. Explain what actually happened rather than characterising it. Conduct is not excused merely by being unintentional, and it is not condemned merely by being deliberate; what matters is whether there was adequate justification.
3. Attach the proof of what the case was doing — the settlement correspondence, the arbitration order, the mediation date.
4. Move within 30 days of the signing of the order, or establish the Rule 306a date first if notice came late.
5. Ask for the hearing. The rule contemplates a finding after a hearing, and a motion overruled by operation of law never gets one.

What defeats it

• An unverified motion.
• The 75-day cliff. The motion is overruled by operation of law 75 days after the judgment is signed, and the court’s plenary power runs 30 days beyond that.
• A record of repeated inattention in the same case, which turns accident into conscious indifference.
• Waiting for the notice that never came. The 30 days runs from the signing of the order, not from the day you found out — that is what Rule 306a is for.

Where I have used it

Ellman v. Ellman · Cause No. DC-20-04451, 298th Judicial District Court, Dallas County. Dismissal order signed 21 November 2022; notice received 5 December; agreed motion to reinstate and stay filed 14 December, seeking reinstatement so the court could hold the case pending the third instalment of a settlement due the following February. Reinstated. The useful part is the pairing: reinstating a case you then need held is a different request from reinstating one you intend to try, and asking for both in one motion is what kept the settlement enforceable.