HART v. SAN JACINTO RIVER AUTHORITY (2026)

OPINION

Appellants, Billie Hart, et al., Jeffrey Early, and Elizabeth Early, sued appellee, San Jacinto River Authority (the “SJRA”), seeking compensation for inverse condemnation. Appellants attempt to bring this restricted appeal from an order dismissing their case for want of prosecution. This appeal turns on whether an unverified motion to reinstate constitutes a “timely file[d]” postjudgment motion for purposes of Texas Rule of Appellate Procedure 30. See Tex. R. App. P. 30. We hold that Rule 30 addresses only the timeliness of a postjudgment motion and not its validity; thus, the timely filing of any postjudgment motion—whether defective or not—forecloses restricted appeal review. Although we are cognizant that this disposition forecloses further review of appellants’ claim, Rule 30’s jurisdictional limits compel this result, and we must dismiss the appeal for lack of jurisdiction.

Background

Hurricane Harvey made landfall in August 2017, flooding thousands of homes across the Houston area. This case began with a single plaintiff seeking compensation for the alleged inverse condemnation of private property. Over time, additional plaintiffs joined the suit, other claimants intervened, and two separate lawsuits were consolidated into the proceeding. Ultimately, the case grew to include approximately 800 resident plaintiffs.

Over the course of more than five years, the SJRA filed multiple pleas to the jurisdiction, challenging appellants’ claim on various grounds. During that period, the trial court regularly managed the case through pre-trial and status conferences. One such pre-trial conference was set for October 15, 2021. Neither side appeared, and despite the fact that the case was being actively litigated on the trial court's docket, the trial court dismissed the case for want of prosecution. Notice of the dismissal was sent out on October 18, 2021. That same day, appellants filed an unopposed, unverified motion to reinstate.¹ On October 21, 2021, the trial court signed the dismissal order. The trial court then signed an order granting appellants’ defective motion to reinstate on October 26, 2021, within its plenary power, and the case returned to the trial court's active docket.

Then, on April 8, 2024, the trial court scheduled a status conference. The notice setting the conference warned that “[i]f you fail to appear for the video status conference, your claims may be dismissed for want of prosecution.” The notice was sent to the parties on April 3, 2024. Neither side appeared at the April 8 status conference, and the trial court dismissed the case for want of prosecution that same day.

Four days later, on April 12, 2024, appellants again filed an unopposed, unverified motion to reinstate. The unverified motion was placed on the trial court's submission docket but an order granting reinstatement was not signed.

Appellants did not file a timely notice of appeal within the time prescribed by Texas Rules of Appellate Procedure 26.1. Instead, on October 8, 2024, they filed a notice of restricted appeal under Rule 30, asserting that they were parties to the underlying suit, did not participate in the hearing that resulted in dismissal, and did not timely file a postjudgment motion.

Discussion

In two issues, appellants ask this court to reverse the trial court's dismissal order and remand the case to the trial court for an adjudication on the merits. Appellants contend that their second unverified motion to reinstate did not constitute a timely filed postjudgment motion for purposes of Rule 30, relying on Texas Supreme Court precedent holding that an unverified motion to reinstate is ineffective to extend appellate deadlines under Rule 26.1 and Rule of Civil Procedure 165a(3). Resolution of these issues requires an examination of the distinct purposes served by Rules 165a(3), 26.1, and 30. We therefore begin by outlining the framework for restricted appeals, then explain the role of motions to reinstate under Rules 165a(3) and 26.1, and conclude by addressing why the filing of any postjudgment motion, regardless of procedural defects, precludes restricted appeal review.

I. The Function of Restricted Appeals

With certain exceptions, a “notice of appeal must be filed within 30 days after the judgment is signed.” Tex. R. App. P. 26.1. A restricted appeal is one exception to this general rule. Restricted appeals under Rule 30 replaced the former writ of error practice. Tex. R. App. P. 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 849 (Tex. 2004) (“The writ of error procedure is now the restricted appeal procedure in Texas Rules of Appellate Procedure 25.1, 26.1(c) and 30.”). A restricted appeal is a direct attack on the trial court's judgment. E.g., Larson v. Giesenschlag, 368 S.W.3d 792, 795–96 (Tex. App.—Austin 2012, no pet.); RMS Residential Props., LLC v. Molina, No. 14-11-00232-CV, 2011 WL 5314526, at *1 (Tex. App.—Houston [14th Dist.] Nov. 3, 2011, no pet.) (mem. op.). It is available for the limited purpose of providing a party who did not participate at trial with the opportunity to correct an erroneous judgment. See Tex. R. App. P. 30; Telezone, Inc. v. Kingwood Wireless, No. 14-15-00742-CV, 2016 WL 7436813, at *1 (Tex. App.—Houston [14th Dist.] Dec. 22, 2016, no pet.) (mem. op.).

To prevail on restricted appeal, a party must establish: (1) it filed a notice of restricted appeal within six months after the judgment was signed; (2) it was a party to the underlying lawsuit; (3) it did not participate in the hearing that resulted in the complained-of judgment and did not timely file any postjudgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent on the face of the record. Ins. Co. of State of Pa. v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2009); Sherrard v. SignAd, Ltd., 637 S.W.3d 192, 195 (Tex. App.—Houston [14th Dist.] 2021, no pet.). The first three requirements are jurisdictional and will preclude a party's right to seek relief by restricted appeal. See Ex parte E.H., 602 S.W.3d 486, 496 (Tex. 2020). It is undisputed that appellants have satisfied the first two jurisdictional requirements necessary for a restricted appeal. The issues in dispute are whether appellants timely filed a postjudgment motion (requirement three) and whether error is apparent on the face of the record (requirement four). Because the third requirement is jurisdictional, we address it first.

II. The Role of Rules 165a(3), Rule 26.1, and the Meaning of “Timely File[d]” Under Rule 30

Rule 165a(3) governs motions to reinstate following a dismissal. Tex. R. Civ. P. 165a(3). This rule serves as the exclusive procedural mechanism for a party to seek reinstatement of a case that has been dismissed for want of prosecution. See Jarrell v. Bergdorf, 580 S.W.3d 463, 466 (Tex. App.—Houston [14th Dist.] 2019, no pet.); Gillis v. Harris Cnty., 554 S.W.3d 188, 191 (Tex. App.—Houston [14th Dist.] 2018, no pet.). Rule 165a(3) requires that a motion to reinstate “shall set forth the grounds and be verified by the movant or his attorney.” Tex. R. Civ. P. 165a(3). To satisfy this verification requirement, the motion for reinstatement must either be verified or serve as the functional equivalent of a verified motion. See Young v. Di Ferrante, 553 S.W.3d 125, 129–30 (Tex. App.—Houston [14th Dist.] 2018, pet. denied). A motion to reinstate must also be filed within 30 days after the order of dismissal is signed or within the period provided by Rule of Civil Procedure 306a. Tex. R. Civ. P. 165a(3), 306a.

If the plaintiff does not file a timely motion to reinstate that satisfies the verification requirement, the trial court's plenary power expires 30 days after the date of the dismissal order. See McConnell v. May, 800 S.W.2d 194, 194 (Tex. 1990) (holding that the trial court's jurisdiction to reinstate expired because plaintiff did not file a verified motion to reinstate within 30 days of the signing of the order of dismissal); Butts v. Capitol City Nursing Home, Inc., 705 S.W.2d 696, 697 (Tex. 1986) (holding that unverified motion to reinstate did not extend appellate deadlines).

Rule 26.1 governs ordinary appeals and determines whether a postjudgment motion extends appellate deadlines. Tex. R. App. P. 26.1. Rule 165a(3) governs both whether a motion to reinstate is timely (filed within 30 days) and valid (setting forth the grounds and verified). Tex. R. Civ. P. 165a(3). If the plaintiff does not file a timely, verified motion to reinstate, the deadline to file a notice of appeal is at most 45 days after the date of the dismissal order (including the 30-day deadline and the 15-day extension period). See Gillis, 554 S.W.3d at 192; Watson v. Clark, No. 14-14-00031-CV, 2015 WL 780563, at *3 (Tex. App.—Houston [14th Dist.] Feb. 24, 2015, no pet.) (mem. op.). If however, a party timely files a verified motion to reinstate under Rule 165a(3) within 30 days after the date of the dismissal order, Rule 26.1(a)(3) extends the appellate deadline from 30 days to 90 days after the judgment is signed. Tex. R. App. P. 26.1(a)(3).

Rule 30, however, governs restricted appeals and states only whether a party is disqualified from that form of review based on its participation in the trial court. See Tex. R. App. P. 30; see also Texaco, Inc. v. Cent. Power & Light Co., 925 S.W.2d 586, 590 (Tex. 1996) (holding that a writ of error is “but another mode of appeal.”). Unlike Rule 26.1, it does not require that a postjudgment motion is valid to extend appellate deadlines. Tex. R. App. P. 30. It requires only that a postjudgment motion is timely filed, i.e., within 30 days after the date the dismissal order is signed. See id.; see also Tex. R. Civ. P. 329b(d) (providing that a trial court retains jurisdiction over a case for a for 30 days after the judgment is signed).

The Rules of Appellate Procedure define what constitutes a timely filing, and we need not look beyond those rules to find that definition. Under Texas Rule of Appellate Procedure 9.2, “a document is considered timely filed if it is electronically filed at any time before midnight (in the court's time zone) on the filing deadline.” Tex. R. App. P. 9.2(c)(4). Rule of Civil Procedure 21 adopts an indistinguishable definition of timeliness. Tex. R. Civ. P. 21(f)(5). Nothing in Rule 30 suggests that “timely filed” carries a different or more demanding meaning. See Tex. R. App. P. 30.

Consistent with this framework, Rule 30 draws no distinction between postjudgment motions that satisfy necessary procedural requirements and those that do not. The omission is intentional and reflects the different purposes served by Rules 165a(3), 26.1, and 30. See Ford Motor Co. v. Garcia, 363 S.W.3d 573, 579 (Tex. 2012) (explaining that in construing a procedural rule, “we apply the same rules of construction that govern the interpretation of statutes.”). Rule 165a(3) governs the requirements necessary to obtain reinstatement. Tex. R. Civ. P. 165a(3). Rule 26.1 addresses which postjudgment motions extend appellate deadlines. Tex. R. App. P. 26.1. And Rule 30 applies when a party did not participate in the hearing resulting in the dismissal and has not invoked postjudgment procedures. Tex. R. App. P. 30. If Rule 30 does not apply, then they are permitted to file a notice of appeal only within the time permitted by Rule 26.1(c). See id.

Therefore, construing a timely but unverified motion to reinstate as a postjudgment motion for Rule 30 purposes harmonizes with the independent functions served by Rules 165a(3), 26.1 and 30. See Tex. R. Civ. P. 165a(3) (requiring that a motion to reinstate be verified and filed with 30 days of the dismissal order); Tex. R. App. P. 26.1(a)(3) (requiring that a motion to reinstate comply with Rule 165a(3)), Tex. R. App. P. 30 (limiting restricted appeal review to, among other things, a party who did not timely file a postjudgment motion). This interpretation makes the most sense because restricted appeal review is narrowly designed to afford relief only to a party who did not participate in the hearing or file a postjudgment motion and thus had no earlier opportunity to correct an erroneous judgment. See Tex. R. App. P. 30; Telezone, 2016 WL 7436813, at *1.

Although this construction reflects an apparent asymmetry that an unverified motion is ineffective to obtain relief or extend appellate deadlines yet will foreclose restricted appeal review, that asymmetry is neither anomalous nor unintended. See Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 443 (Tex. 2009) (“Enforcing the law as written is a court's safest refuge ․ and we should always refrain from rewriting text that lawmakers chose[.]”). Indeed, Texas courts recognize the same distinction in other postjudgment motion contexts.

For instance, under the conditional filing doctrine, a motion for new trial that is timely tendered without payment of the filing fee is considered conditionally filed, even though it cannot be acted upon. Jamar v. Patterson, 868 S.W.2d 318, 319 (Tex. 1993). If the fee is not paid before the motion is overruled by operation of law, the movant may “forfeit altogether the ․ opportunity to have the trial court consider the motion.” Garza v. Garcia, 137 S.W.3d 36, 37 (Tex. 2004). Even so, failure to pay “does not retroactively invalidate the conditional filing for purposes of the appellate timetable.” Id. at 37–38. The motion is still treated as a timely filed postjudgment motion for purposes of determining restricted appeal availability. See Ealy v. EVC Engage, LLC, 679 S.W.3d 697, 703 (Tex. App.—Houston [1st Dist.] 2022, pet. denied).

The Garza court resolved the apparent tension created by the conditional filing doctrine by distinguishing between the filing and the requirements necessary for the trial court to grant relief on that motion. 137 S.W.3d at 37–38. With respect to motions for new trial, the court explained that although a filing fee is required before the trial court may act on the motion, “nothing in those rules require a fee to accompany a motion for new trial, or that such a fee be paid at all.” Id. at 38. The filing fee therefore affects the availability of relief, not whether the motion has been filed. See id. at 38–40.

The same reasoning applies here. While Rule 165a expressly requires verification for a motion to reinstate, that requirement does not control whether the filing constitutes a postjudgment motion for purposes of Rule 30 because nothing in Rule 30 requires that a postjudgment motion be verified. Compare Tex. R. Civ. P. 165a(3), with Tex. R. App. P. 30. This mirrors the conditional filing logic implemented by the Garza court because Rule 30 does not import Rule 165a’s verification requirement whereas Rule 26.1 does. Compare Tex. R. App. P. 26.1, with Tex. R. App. P. 30.

Rule 30 avoids that uncertainty by adopting an objective standard: (1) is the document a postjudgment motion, and (2) was it timely filed. See Tex. R. App. P. 30. The rule does not require that the motion be valid or capable of obtaining relief. See id. And reading such a requirement into the rule would substantially undermine its function and expand the availability of restricted appeals. See Simmons v. Arnim, 220 S.W. 66, 70 (1920) (“Courts must take statutes as they find them.”); Sherrard v. SignAd, Ltd., 637 S.W.3d 192, 195 (Tex. App.—Houston [14th Dist.] 2021, no pet.) (“A restricted appeal is for a party who did not participate at the hearing that resulted in judgment and who did not file a post-judgment motion.”). Rule 30 does not contemplate such a result.

Restricted appeals are intended for litigants who took no action after judgment, not those who attempted, but failed, to obtain postjudgment relief by motion. See P & A Real Estate, Inc. v. Am. Bank of Tex., 323 S.W.3d 618, 619 (Tex. App.—Dallas 2010, no pet.) (explaining that when a party files a timely postjudgment motion, we lack jurisdiction over a restricted appeal); see also Robison v. The Mental Health and Mental Retardation Auth. of Harris Cty., No. 14-01-00921-CV, 2001 WL 1590256, at *1 (Tex. App.—Houston [14th Dist.] Dec. 13, 2001, pet. denied) (mem. op.) (not designated for publication) (holding that appellant was not entitled to the protection of Rule 30 because the record established he filed a timely yet defective postjudgment motion).

Accordingly, an unverified motion to reinstate does not extend appellate deadlines or the trial court's postjudgment jurisdiction under Rules 165a(3) and 26.1. See McConnell, 800 S.W.2d at 194; Butts, 705 S.W.2d at 697. However, it nonetheless constitutes a timely filed postjudgment motion if filed within 30 days of when the dismissal is signed. See Ameriquest Mortg. Co. v. Marron, No. 14-13-00340-CV, 2013 WL 2444602, at *4 (Tex. App.—Houston [14th Dist.] June 4, 2013, pet. denied) (mem. op.); see also Tex. R. Civ. P. 21(f)(5); Tex. R. App. P. 9.2(c)(4).

We are cognizant that an unverified motion to reinstate may have different legal effects under different rules, but that juxtaposition reflects that each rule addresses a distinct procedural question: Rule 165a asks: May the trial court grant reinstatement? Verification is required to answer that question. See Tex. R. Civ. P. 165a(3). Rule 26.1 asks: Does the motion extend appellate deadlines? Procedural sufficiency controls that inquiry because Rule 26.1 expressly incorporates Rule 165a. See Tex. R. App. P. 26.1. Rule 30 asks: Did the party timely invoke postjudgment procedures? Verification is not required to answer that question. See Tex. R. App. P. 30.²

III. Application to This Case

Here, the second dismissal order was signed April 8, 2024, and appellants’ unverified motion to reinstate was filed April 12, 2024, well within the 30-day period, and was therefore timely filed. See Tex. R. Civ. P. 165a(3); see also Tex. R. App. P. 9.2(c)(4). The reinstatement motion, however, was not verified, and under controlling precedent, did not extend the deadline for appellants’ notice of appeal or the trial court's postjudgment jurisdiction. See McConnell, 800 S.W.2d at 194; Butts, 705 S.W.2d at 697; see also Tex. Civ. P. 165a(3). Appellants’ notice of appeal was therefore due May 8, 2024, or by May 23, 2024 at the latest (45 days from the dismissal order) if coupled with a motion to extend time to file a notice of appeal in the appellate court. See Gillis, 554 S.W.3d at 192. It is undisputed that appellants did not file a notice of appeal within the time provided under Rule 26.1.

Applying the principles discussed above, we hold that appellants’ unverified motion to reinstate constituted a timely filed postjudgment motion within the meaning of Rule 30. See Ameriquest, 2013 WL 2444602, at *4, n.6. We are mindful that Douglas v. American Title Co. pre-dates Ameriquest and is therefore our controlling precedent addressing the effect of an unverified motion to reinstate, but Douglas is distinguishable from Ameriquest. No. 14-08-00676-CV, 2009 WL 3851674, at *4 (Tex. App.—Houston [14th Dist.] Nov. 19, 2009, no pet.) (mem. op.).

In Douglas, our court described an unverified motion as a “nullity” in the context of determining whether it extended appellate deadlines or the trial court's postjudgment jurisdiction. Id. That language was limited to the motion's legal effect under Rules 165a and 26.1 and does not address whether the motion constitutes a timely filed postjudgment motion for purposes of Rule 30. See id. Properly understood, Douglas confirms only that an unverified motion is ineffective to obtain relief or extend appellate deadlines; it does not negate the motion's filing for Rule 30 purposes. Id.

Douglas cites our sister court's opinion in In re Trinity Universal Insurance Co. of Kansas, which follows the line of authority established in McConnell and related cases, and likewise applies the “nullity” characterization solely in the context of the motion's legal effect on the specific relief requested. No. 04-06-00471-CV, 2006 WL 2819767, at *1 (Tex. App.—San Antonio Oct. 4, 2006, no pet.) (mem. op.). Appellant has not cited, and we are unaware of, any authority holding that an unverified motion to reinstate should be treated as if it were never filed or as if it never existed.

After Douglas, this court directly considered whether an unverified motion to reinstate affects a party's eligibility for a restricted appeal and clarified how such motions are treated under Rule 30. See Ameriquest, 2013 WL 2444602, at *4, n.6. In Ameriquest, we explained that

the rationale for the holding of the Butts court ․ was not that an unverified motion to reinstate is void or not a motion to reinstate; rather, the Butts court held that a “proper” and timely motion to reinstate is required to extend the appellate deadlines and that an unverified motion is not a “proper” motion.

Id. (internal citations omitted).

Consistent with this reasoning, this court recognized that an unverified motion, while ineffective to obtain reinstatement or extend appellate deadlines, remains a filing for purposes of determining postjudgment participation under Rule 30. Id. In other words, although Rule 165a requires verification, the failure to satisfy that requirement does not render the motion nonexistent; it simply limits the motion's legal effect on the specific relief requested. Id. This distinction mirrors the principle already identified in Douglas and In re Trinity: while the courts classified an unverified motion to reinstate as a “nullity” for purposes of extending appellate deadlines or invoking the trial court's postjudgment jurisdiction, nowhere in either opinion did the courts treat the unverified motion as nonexistent. 2009 WL 3851674, at *3–5; 2006 WL 2819767, at *1–2.

To the extent appellants suggest that Ameriquest is not precedential because it contradicts Butts, we disagree. In Butts, the plaintiff attempted to pursue an ordinary appeal under the assumption that an unverified motion to reinstate extended appellate deadlines, see 705 S.W.2d at 697, whereas in Ameriquest, the plaintiff pursued a restricted appeal as an alternate legal theory after the motion to reinstate proved ineffective at extending appellate deadlines, see 2013 WL 2444602, at *4, n.6. This distinction matters. See generally Robison, 2001 WL 1590256, at *1 (concluding that a defective postjudgment motion is a “timely postjudgment motion” under Rule 30).

Although the cases arise from the same procedural defect and are conceptually linked, they address different legal questions. Here, as in Ameriquest, appellants filed an unverified motion to reinstate that did not extend the appellate timeline and now seek restricted appeal review as an alternative. Appellants therefore fall squarely within Ameriquest’s holding. 2013 WL 2444602, at *4, n.6.

Our interpretation of the impact of an unverified reinstatement motion accords with Texas Supreme Court precedent requiring the Rules of Appellate Procedure to be construed reasonably and liberally to preserve the right to appeal without imposing unnecessary requirements. See Verburgt v. Dorner, 959 S.W.2d 615, 616–17 (Tex. 1997). If we were to adopt appellant's argument, we would be doing just that, adding requirements into Rule 30 that do not exist.

Accordingly, we overrule appellants’ first issue and do not reach their second issue. See Tex. R. App. P. 47.1.

Conclusion

We conclude that appellants’ timely, unverified motion to reinstate is a timely filed postjudgment motion under Rule 30, foreclosing restricted appeal review. Because appellants failed to timely file a notice of appeal within the applicable time prescribed in Rule 26.1, we lack jurisdiction and dismiss the appeal.

CONCURRING OPINION

The court holds that a timely but unverified motion to reinstate qualifies as a post-judgment motion for purposes of Texas Rule of Appellate Procedure 30, thereby foreclosing an attempted restricted appeal from the dismissal order. Because these appellants have not met the jurisdictional requirements for a restricted appeal, the court dismisses this case for lack of jurisdiction. I agree that controlling precedent compels our disposition; but I reach this conclusion with much regret, as there are few cases less suitable than this one to die by prosecutorial default. I write separately to offer my views on the proper interpretation of this court's precedent and to fully explain why I ultimately disagree with appellants’ arguments rooted in Butts v. Capitol City Nursing Home, Inc., 705 S.W.2d 696 (Tex. 1986).

I.

The plaintiffs/appellants in this case are hundreds of Kingwood area owners whose properties were damaged in 2017 during Hurricane Harvey. They allege that San Jacinto River Authority's release of stormwaters from Lake Conroe into the San Jacinto River caused or worsened flooding on their properties. They assert constitutional takings and other claims.

The lawsuit began in March 2019 and was dismissed for want of prosecution on April 8, 2024. Between those dates, the parties engaged in substantial discovery; SJRA filed a plea to the jurisdiction (amended twice); and the plaintiffs filed responses to the plea. The parties set and reset hearings on SJRA's plea and moved to continue the trial date by agreement multiple times. By October 2023, the plea had not been heard, and the parties jointly asked the court to reset the trial date to September 2024, citing the need to complete a deposition relevant to SJRA's plea.

The trial court notified the parties that a status conference would be held remotely on April 8, 2024. The notice warned that a failure to appear may result in dismissal for want of prosecution. Counsel for neither side appeared. The court signed a final order dismissing the case that day. According to appellants, the notice was sent by mail—not electronically—and as a result appellants’ counsel did not receive the notice or the dismissal order until April 9. Three days later, appellants filed their motion to reinstate, which was unopposed but also unverified.¹

Appellants set the motion to reinstate for submission without an oral hearing on April 23, 2024. According to the docket sheet, the court considered the motion on April 23 but noted that no proposed order was filed. Someone from the court called appellants’ counsel and requested an order. An additional note on the county clerk's website indicated: “Motion to Reinstate 4/23/2024 8:30AM Granted – Need Order.” Appellants filed a proposed order granting reinstatement that day. But the court never signed the order. Several months passed before appellants’ counsel learned that no reinstatement order had been signed.²

Under Butts and its progeny, an unverified motion to reinstate does not extend the deadline to perfect an appeal. Butts, 705 S.W.2d at 697. Thus, the trial court's plenary jurisdiction and the deadline for perfecting an ordinary appeal expired on May 8, 2024. By that date, appellants had not filed an amended motion to reinstate with a verification or a notice of appeal. But they filed a timely notice of restricted appeal five months later. Tex. R. App. P. 26.1(c). Their entitlement to a restricted appeal is what concerns us today.

II.

For a restricted appeal to be jurisdictionally available, an appellant must have (1) not participated in the hearing that resulted in the dismissal and (2) not timely filed a post-judgment motion, request for findings and conclusions, or notice of appeal. Tex. R. App. P. 30. The only issue in dispute is whether appellants timely filed a post-judgment motion. A motion to reinstate—a type of post-judgment motion—is due thirty days after a dismissal order is signed. Tex. R. Civ. P. 165a(3). Because appellants filed a motion to reinstate within thirty days of the dismissal order, the only way they can secure any direct appeal of the order is by arguing, as they do, against the validity of their own motion. They contend that the motion to reinstate was effectively void because it was unverified.

The cornerstone of their argument is the supreme court's 1986 decision in Butts. Butts has two important holdings: (1) a motion to reinstate is treated like a motion for new trial for purposes of extending the time to perfect an ordinary appeal to ninety days; but (2) an “improper”—that is, unverified—motion to reinstate does not extend appellate deadlines. Butts, 705 S.W.2d at 697. I refer to the latter holding as the “Butts Rule.”³ The Butts court did not say why an unverified motion to reinstate will not extend appellate deadlines, just that it won't.

Four years after Butts, the supreme court applied the Butts Rule to hold that an unverified motion to reinstate also fails to extend a trial court's plenary jurisdiction. McConnell v. May, 800 S.W.2d 194 (Tex. 1990).

This court has dutifully followed the Butts Rule over the years.⁴ Contrary to appellants’ urging, however, doing so again here does not lead to the conclusion that appellants’ unverified motion to reinstate was void or a nullity, and I believe our court correctly rejects their argument. I add the following thoughts to the majority's reasoning.

Our court applied the Butts Rule in Ameriquest Mortgage Co. v. Marron, No. 14-13-00340-CV, 2013 WL 2444602 (Tex. App.—Houston [14th Dist.] June 4, 2013, pet. denied) (mem. op.), which involved an attempted appeal from a dismissal for want of prosecution. There, as here, the appellant filed a timely but unverified motion to reinstate, followed by a notice of appeal about four months after the judgment. Following the Butts Rule, this court held that the appeal was untimely because Ameriquest's unverified motion to reinstate did not extend appellate deadlines. Id. at *2. Ameriquest asked alternatively that we treat its appeal as a restricted appeal under Rule 30. Id. at *3. We declined, holding that Ameriquest did not meet the requirements for a restricted appeal because its motion to reinstate was a timely post-judgment motion, even though it was unverified. Id. at *4. We clarified that an unverified motion to reinstate was not void under the Butts Rule, only that such a motion, being “improper,” did not extend appellate deadlines. Id. at *4 n.6 (citing Butts, 705 S.W.2d at 697). Consequently, we lacked appellate jurisdiction and dismissed the appeal. Id.

I agree with the majority that Ameriquest controls today's case. I am aware of no appellate court decision contrary to Ameriquest, or criticizing it, on the relevant issue. Barring on-point supreme court authority holding the contrary, we must follow Ameriquest under horizontal stare decisis. Mitschke v. Borromeo, 645 S.W.3d 251, 256-57 (Tex. 2022).

In support of appellants’ fundamental contention that their motion to reinstate was effectively no motion at all, they urge us not to follow Ameriquest but instead heed earlier decisions from this court stating that an unverified motion to reinstate is a “nullity.” The first such case, Davis v. Nations Bank, No. 14-98-00312-CV, 1998 WL 470386, at *1 (Tex. App.—Houston [14th Dist.] Aug. 13, 1998, no pet.) (per curiam) (mem. op., not designated for publication), cites Butts for that proposition. Appellants acknowledge, however, that Davis is unpublished and pre-dates 2003, thus rendering it non-precedential. Tex. R. App. P. 47.7(b).⁵

But our court again characterized an unverified motion to reinstate as a “nullity” in a precedential decision pre-dating Ameriquest. In Douglas v. American Title Co., No. 14-08-00676-CV, 2009 WL 3851674, at *4 (Tex. App.—Houston [14th Dist.] Nov. 19, 2009, no pet.) (per curiam) (mem. op.), the appellant's complaint was that he was denied an oral hearing on his motion to reinstate. Because his motion was unverified, we concluded his right to a hearing under Rule 165a(3) was not triggered. Id. In reaching this conclusion, we stated that his unverified motion was a nullity. Id. But we also held that the appellant failed to show error in being denied a hearing for another reason, namely, he was a prison inmate, and inmates lack an absolute right to appear in person in civil cases. Id. Therefore, this court's statement that an unverified motion for reinstatement was a nullity, being unessential to our disposition, is no more than non-binding obiter dicta. Edwards v. Kaye, 9 S.W.3d 310, 314 (Tex. App.—Houston [14th Dist.] 1999, pet. denied) (“Dictum is an observation or remark made concerning some rule, principle, or application of law suggested in a particular case, which observation or remark is not necessary to the determination of the case.”). Neither this court nor any other has relied on Douglas to hold that a party who files an unverified motion to reinstate meets the restricted appeal requirements of Rule 30. I agree we should not do so now.

To me, Douglas is problematic authority for a more fundamental reason. The plaintiff in that case did not file his notice of appeal until well after the thirty-day deadline, and he did not file a motion for new trial. Id. at *2. Had our court been true to the Butts Rule, we would have dismissed the appeal for lack of jurisdiction (like we did later in Ameriquest) because Douglas's unverified motion to reinstate did not extend appellate deadlines. Thus, it appears to me that our court had no proper occasion to make the statement on which appellants now rely.

Still, we are reminded that our court is merely one of several to characterize unverified motions to reinstate as nullities.⁶ All of these decisions are based on Butts or McConnell. But in my opinion, they overstate Butts’s holding. As we noted in Ameriquest, Butts stated that an unverified motion to reinstate was “improper,” not “void” or “null.” Butts, 706 S.W.2d at 697. To say that a motion is improper in the relevant sense is to say that it fails to meet required standards;⁷ but it exists nonetheless. An unverified motion to reinstate fails the required standards under Rule 165a(3) because it lacks verification. That deficiency does not void the motion for all purposes, however, and the Butts Rule does not demand otherwise.

Another reason Butts is not on point is because the supreme court did not address, and had no reason to address, the question before us: whether an unverified motion to reinstate is a post-judgment motion for Rule 30 purposes. This is because in 1986 the timely filing of a post-judgment motion did not foreclose a writ of error, the predecessor to a restricted appeal. See Stubbs v. Stubbs, 685 S.W.2d 643, 645 (Tex. 1985), abrogated on other grounds by Ex parte E.H., 602 S.W.3d 486, 495-97 (Tex. 2020); Brown v. Brookshires Grocery Store, 10 S.W.3d 351, 353, 355 (Tex. App.—Dallas 1999, pet. denied). If the supreme court decided Butts today, I am skeptical the result would be the same.

We reject appellants’ position today and, looking back to the Butts era, I see that similar “nullity” arguments in the context of motions for new trial have met a comparable fate. In Neily v. Aaron, 724 S.W.2d 908, 911 (Tex. App.—Fort Worth 1987, no writ), the question was whether a timely filed motion for new trial that did not conform to Texas Rules of Civil Procedure 321 and 322 extended the appellate deadlines.⁸ The Neilys’ motion for new trial did not comply with these rules because it did nothing more than summarily request a new trial without assigning any alleged error. Id. at 910-11. The appellees argued that the Neilys’ appeal was untimely because their defective motion for new trial was a “nullity” and did not extend appellate deadlines. Id. at 910. The court of appeals disagreed. The court noted the language of former Rule 356(a), which stated that the appellate deadline was extended if a “timely motion for new trial” is filed. Id. at 911. Writing for the court, Justice Keltner reasoned that because Rule 356(a) did not state that a motion for new trial must comply with Rules 321 and 322, and because the Neilys’ motion was filed within thirty days of the judgment, it was effective to extend appellate deadlines to ninety days even though it was ineffective to preserve any error. Id. I agree with Neily and would observe in the same way, like the majority, that Rule of Appellate Procedure 30 does not say that a post-judgment motion must comply with all applicable rules to qualify as a post-judgment motion.

To be sure, had Neily involved a defective motion to reinstate instead of a defective motion for new trial, the outcome no doubt would have been different because Butts issued eleven months earlier. For that reason, one might reasonably argue that my comparison to Neily is inapt. This brings me to my last point.

III.

Whether the Butts Rule is or is not a good thing is neither presented nor for us to decide, but in my view, whatever its merit in the past, the Butts Rule should no longer be welcome in Texas jurisprudence. As a panel of this court has done before,⁹ I urge the supreme court to exercise its prerogative to reexamine and overrule it (and McConnell) when an appropriate case arises. Dispensing with the Butts Rule and holding that an unverified motion to reinstate extends the deadline for an ordinary appeal and the trial court's plenary jurisdiction would benefit Texas law largely in two ways.

First, it would align case law with relevant procedural rules to settle that all post-judgment motions of any type—whether defective, improper, or otherwise—are treated equally in extending the time to perfect an ordinary appeal. As mentioned, a deficient motion for new trial is effective to extend appellate deadlines even if it does not comply with Rules 321 and 322;¹⁰ or even if it was tendered without the statutory filing fee;¹¹ or even if it bears the wrong cause number.¹² An unverified motion to reinstate is the only type of post-judgment motion that does not extend appellate deadlines. The Butts Rule is the only reason that is so. Under Butts’s first holding, a motion to reinstate is supposed to be treated like a motion for new trial anyway.

Second, treating all post-judgment motions as effective to extend appellate deadlines would maximize opportunities for a more valuable and more meaningful ordinary appeal right when a party files a timely but unverified motion to reinstate. An ordinary appeal is a far more effective vehicle for obtaining error correction than a restricted appeal because review by restricted appeal is extremely limited.

Increasing the availability of ordinary appeals for those whose compliance with Rule 165a is less than perfect would advance the supreme court's preference for reaching the merits of appellate complaints.¹³ I have debated whether construing Rule 30 as we do in this case coheres with these high court principles. Ultimately, I conclude it does, even at the expense of a restricted appeal in this or similar cases. This may seem counterintuitive when the result I advocate in this case means that appellants are deprived of a restricted appeal. But to me, relying on principles favoring merits dispositions to hold that an unverified motion to reinstate extends ordinary appellate deadlines would do more good, more often than relying on those same principles to hold that an unverified motion to reinstate is an utter nullity, thus leaving only a restricted appeal. This rightly places a premium on the value of ordinary appeals over restricted appeals. Staking themselves to the Butts Rule, as appellants do, to advocate that an unverified motion to reinstate does not count as a post-judgment motion for Rule 30 purposes only further entrenches the rule, when in my view it should be uprooted completely. I think it best not to assist in perpetuating what I perceive to be the greater inequity to the judicial system resulting from the continued existence of the Butts Rule and persistent conflict with the law governing other post-judgment motions.

Appellants rightly highlight the existing and lamentable interpretive tension between Rules 26.1 and 30. As a consequence of our holding in Ameriquest, Rule 30’s reference to a “post-judgment motion” encompasses any post-judgment motion, including verified and unverified motions to reinstate. Yet, per the Butts Rule, a “motion to reinstate” under Rule 26.1 means only a “proper,” verified motion. The combined application of Butts and Ameriquest to these facts means that the simple omission of a verification from appellants’ unopposed motion to reinstate deprives them of any right of direct appeal after thirty days from the final dismissal order. No extension of time to perfect an ordinary appeal. No restricted appeal. And no Rule 306a relief was available because appellants had notice of the judgment within twenty days. See Tex. R. Civ. P. 306a(4).

This is indeed a harsh outcome, particularly for these appellants’ claims. Although I see it as unavoidable under current case law, in my opinion the best way to maximize the opportunity for ordinary appellate rights in future situations like these is for the Supreme Court of Texas to overrule the Butts Rule.

FOOTNOTES

1.   Even though the motion to reinstate was unopposed, it still must be verified. See Tex. R. Civ. P. 165a(3).

2.   As noted, neither side appeared at the pretrial conference on October 15, 2021, and the trial court initially dismissed the case on October 21, 2021. The trial court subsequently reinstated the case on October 26, 2021. Nothing in this opinion should be read as questioning the trial court's authority to reinstate a case within its plenary power.

1.   Motions to reinstate a case dismissed for want of prosecution must be verified. Tex. R. Civ. P. 165a(3). This is for the most part a hard and fast rule, but our court and the First Court of Appeals have held that an unverified joint motion to reinstate signed by all parties satisfies the verification requirement because it constitutes a stipulation. Seymour v. Seymour, No. 14-07-00280-CV, 2009 WL 442259, at *2 (Tex. App.—Houston [14th Dist.] Feb. 10, 2009, pet. denied) (mem. op.); Fed. Lanes, Inc. v. City of Houston, 905 S.W.2d 686, 689 (Tex. App.—Houston [1st Dist.] 1995, writ denied) (en banc). Appellants’ motion in the present case would not qualify as a joint motion under Seymour or Federal Lanes because, though unopposed, it was not signed by SJRA. Even construing appellants’ motion as verified, however, would not benefit them given the timing of their notice of appeal.

2.   An order granting a motion to reinstate must be written and signed. Tex. R. Civ. P. 165a(3); Emerald Oaks Hotel/Conference Ctr., Inc. v. Zardenetta, 776 S.W.2d 577, 578 (Tex. 1989). The court's website entry stating “Granted — Need Order” does not qualify as an order reinstating the case.

3.   The former holding is incorporated into our appellate rules of procedure and is not at issue. See Tex. R. App. P. 26.1(a)(3). At the time Butts was decided, Texas Rule of Civil Procedure 356 provided that only a motion for new trial extended appellate deadlines. See Christopher v. Fuerst, 709 S.W.2d 266, 268 (Tex. App.—Houston [14th Dist.] 1986, writ ref'd n.r.e.).

4.   E.g., Pope v. Buckingham Senior Living Community, Inc., No. 14-25-00291-CV, 2025 WL 1878744, at *1 (Tex. App.—Houston [14th Dist.] July 8, 2025, no pet.) (mem. op.); Saint Val v. Hill, No. 14-20-00811-CV, 2022 WL 3592469, at *2-3 (Tex. App.—Houston [14th Dist.] Aug. 23, 2022, no pet.) (mem. op.); Jarrell v. Bergdorf, 580 S.W.3d 463, 466-67 (Tex. App.—Houston [14th Dist.] 2019, no pet.); Watson v. Clark, No. 14-14-00031-CV, 2015 WL 780563, at *2 (Tex. App.—Houston [14th Dist.] Feb. 24, 2015, no pet.) (mem. op.); Ameriquest Mortg. Co. v. Marron, No. 14-13-00340-CV, 2013 WL 2444602 (Tex. App.—Houston [14th Dist.] June 4, 2013, pet. denied) (mem. op.).

5.   SJRA cites Robison v. MHMR of Harris County, No. 14-01-00921-CV, 2001 WL 1590256 (Tex. App.—Houston [14th Dist.] Dec. 13, 2001, pet. denied) (mem. op., not designated for publication), in which this court, like in Ameriquest, held that an unverified motion for reinstatement foreclosed a restricted appeal. Because Robison, like Davis, is non-precedential, it is not binding.

6.   E.g., In re Romero, No. 01-21-00629-CV, 2022 WL 23939, at *2 (Tex. App.—Houston [1st Dist.] Jan. 4, 2022 orig. proceeding) (mem. op.); Allstate Ins. Co. v. Barnet, 589 S.W.3d 313, 317 (Tex. App.—El Paso, no pet.); IOLAP, Inc. v. On Deck Mgmt., No. 05-17-00856-CV, 2018 WL 1008225, at *1 (Tex. App.—Dallas Feb. 22, 2018, no pet.) (mem. op.); In re Valliance Bank, 422 S.W.3d 722, 725 (Tex. App.—Fort Worth 2012, orig. proceeding); In re Trinity Universal Ins. Co., No. 04-06-00471-CV, 2006 WL 2819767, at *1 (Tex. App.—San Antonio 2006, orig. proceeding) (mem. op.); In re Garcia, 94 S.W.3d 832, 833 (Tex. App.—Corpus Christi 2002, orig. proceeding).

7.   “Proper” means suitable or meeting a requite standard. See “Proper,” Merriam-Webster Online (“marked by suitability, rightness, or appropriateness”); “Proper,” Black's Law Dictionary (12th ed. 2024) (“Appropriate, suitable, right, fit, or correct; according to the rules”); “Proper,” Oxford English Dictionary Online (rev. 2007) (“Suitable for a specified or implicit purpose or requirement; appropriate to the circumstances or conditions; of the requisite standard or type; apt, fitting; correct, right.”). The definition of “improper” includes “not suitable to circumstances or needs; unsuitable” and “irregular or abnormal, as in form.” See “Improper,” Merriam-Webster Online (“not suited to the circumstances, design, or end”); “Improper,” Black's Law Dictionary (12th ed. 2024) (“Incorrect; unsuitable or irregular”). In contrast, “null” means void. See “Null,” Merriam-Webster Online (“having no legal or binding force”); “Null,” Black's Law Dictionary (12th ed. 2024) (“Having no legal effect; without binding force; void”).

8.   Rule 321 requires that a motion for new trial refer to the particular matter complained of “in such a way that the objection can be clearly identified and understood by the court.” Tex. R. Civ. P. 321. Rule 322 forbids court consideration of grounds of objections “couched in general terms.” Tex. R. Civ. P. 322.

9.   See Pope, 2025 WL 1878744, at *1.

10.   Neily, 724 S.W.2d at 911.

11.   Garza v. Garcia, 137 S.W.3d 36, 38 (Tex. 2004); see Tex. Loc. Gov't Code § 133.151(a) (requiring fee for motions for new trial in civil cases).

12.   Mitschke, 645 S.W.3d at 258, 266.

13.   Since the Butts era, the supreme court has insisted that appellate courts avoid “unduly technical readings of the rules to block merits consideration of an appeal.” Mitschke, 645 S.W.3d at 261. We construe the rules of appellate procedure liberally so that decisions turn on substance rather than procedural technicality. Garza, 137 S.W.3d at 38; see Verburgt v. Dorner, 959 S.W.2d 615, 616-17 (Tex. 1997). When the question is compliance with any procedural requirement, “appellate courts should reach the merits of an appeal whenever reasonably possible.” Interest of S.V., 697 S.W.3d 659, 662 (Tex. 2024) (per curiam) (quoting Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008)); see also Walker v. Baptist St. Anthony's Hosp., 703 S.W.3d 339, 346 (Tex. 2024) (Bland, J., concurring) (noting the supreme court “elevate[s] justice over procedural deficiencies of many stripes”).

Maritza Antú, Justice

(Jewell, J., concurring).