GREGORY DEBORD JR AND AUBRY DEBORD INDIVIDUALLY AND AS NEXT FRIENDS OF KALEAH DEBORD PARKER DEBORD AND NOAH DEBORD v. KEVIN LEYVA ANA HERNANDEZ ZAMBRANO AND REYNA CANDIA (2026)

OPINION AND ORDER

In this appeal the record and the parties' briefs have been filed. In our initial review of the record, we have found error that is capable of correction by the trial court. TEX. R. APP. P. 44.4. On our own motion we will therefore abate the appeal and remand the cause to the trial court for proceedings consistent with this order.

BACKGROUND

This appeal arises out of a lawsuit that was originally filed in 2019. In their petition, appellants Gregory and Aubry Debord alleged that appellee Kevin Levya—who was then 16 years old and unlicensed—sped through red light and collided with their vehicle, causing injuries to them and their three minor children. The Debords also sued appellees Ana Zambrano and Reyna Candia for negligently entrusting their vehicle to Levya. The appellees moved to dismiss the case for want of prosecution. Following a hearing, the trial court granted the motions and dismissed the case. The Debords timely filed a verified motion to reinstate the case but a hearing on that motion was not conducted and it was overruled by operation of law. This appeal followed.¹

DISCUSSION

Through two issues on appeal, the Debords argue that the trial court erred in not holding a hearing on the motion to reinstate and that the trial court abused its discretion by dismissing the case for want of prosecution.

When a motion to reinstate is filed the trial court clerk must deliver a copy to the judge “who shall set a hearing on the motion as soon as practicable” additionally “the court shall notify all parties or their attorneys of record of the date, time and place of the hearing.” TEX. R. CIV. P. 165a(3). Consequently, a trial court must conduct an oral hearing of any timely filed motion to reinstate under Rule 165a. Thordson v. Houston, 815 S.W.2d 550, 550 (Tex. 1991) (per curiam) (citing Gulf Coast Investment Corp. v. NASA 1 Business Center, 754 S.W.2d 152, 153 (Tex. 1988) *905 (per curiam denying writ) ). The court has no discretion not to conduct an oral hearing on a motion to reinstate. Thordson, 815 S.W.2d at 550; Parker v. Cain, 505 S.W.3d 119, 123 (Tex. App.—Amarillo 2016, no pet.) (finding the hearing is mandatory and reversing and remanding in part for the trial court to conduct a hearing). While a motion for reinstatement is overruled by operation of law if not decided by a signed written order within seventy-five days of the judgment, TEX. R. CIV. P. 165a(3), the trial court must nevertheless conduct a timely oral hearing on the motion.

Here it is undisputed that the trial court did not conduct an oral hearing on the Debords' motion to reinstate. No reason for the omission is shown. At this stage of the appeal, the appellate rules provide a means for the trial court to conduct a hearing so that we may consider the appeal as though the oversight had not occurred. Rule 44.4 provides:

(a) A court of appeals must not affirm or reverse a judgment or dismiss an appeal if:

(1) the trial court's erroneous action or failure or refusal to act prevents the proper presentation of a case to the court of appeals; and

(2) the trial court can correct its action or failure to act.

(b) If the circumstances described in (a) exist, the court of appeals must direct the trial court to correct the error. The court of appeals will then proceed as if the erroneous action or failure to act had not occurred.

TEX. R. APP. P. (headings omitted).

CONCLUSION

The case is therefore abated and the cause remanded to the trial court pursuant to Rule 44.4. We ORDER the trial court to conduct an oral hearing on the Debords' motion to reinstate within 30 days of this Order. The court reporter shall make a record of the hearing. Following the hearing the trial court shall sign a written order expressing its ruling on the motion to reinstate. If the trial court is required to resolve contested issues of material fact, it shall also prepare and file findings of fact and conclusions of law. A supplemental clerk's record containing the order of the trial court and any findings and conclusions it makes along with a reporter's record of the reinstatement hearing shall be filed with the Clerk of this Court within thirty days of the conclusion of the trial court's hearing.

It is so ordered.

FOOTNOTES

1.   As an initial matter, we note that the Debords failed to file the order of dismissal with the appendix, and then after the clerk sent notice asking for it to be filed, did not file the supplemental appendix until after Appellees' brief was filed and the omission was again brought to their attention. Although we have elected not to dismiss the appeal on those grounds, we caution counsel to ensure compliance with the rules of appellate procedure in future proceedings.

MARICELA M. BREEDLOVE JUSTICE