Mechanism 09

Verified motion to retain

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

Tex. R. Civ. P. 165a

When it applies

A file that drifted — a departed associate, a matter abated for settlement talks, a defendant who could not be served. The notice of intent to dismiss starts a short clock and the response has to be on file before the setting, not after.

How it is proved up

1. Verify it. An unsworn motion asserting diligence proves nothing, and the verification is what distinguishes it from the ones the court denies.
2. Recite the history factually — what was filed, served, answered and set, with dates.
3. Commit to specific next steps by date certain: designation of attorney in charge, discovery to be served, a motion to be filed, a trial setting to be requested.
4. Confer and state that the motion is unopposed. Opposing counsel usually has no reason to object, and an unopposed motion is granted on the papers.
5. File the designation of attorney in charge with it where the drift came from a personnel change.

What defeats it

• A record of genuine conscious indifference — repeated notices ignored, no activity over a long period.
• Missing the hearing. Post-dismissal reinstatement is available but the standard and the posture are worse.
• A promise of future action the movant then does not keep, which forecloses a second motion.

Where I have used it

Two Williamson County files drifted onto the dismissal docket after an associate left the firm. Re-retained the day the first notice arrived; verified motion and designation of attorney in charge filed together, unopposed. Both retained. One later settled and paid; the other took a structured settlement.