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Click here for the full text of this decision FACTS:On May 17, 2004, Gilbert Andrews filed suit against Thomas E. Stanton, Christopher Allen Antcliff, and Mark Gregory Briggs, all of whom answered in June 2004. On Jan. 25, 2005, less than seven months after the last defendant answered, the trial court sent notice to Andrews of its intent to dismiss for want of prosecution. A hearing was set for March 3, 2005, but the court chose to meet in chambers with the attorneys. A dismissal order was signed on March 7. On March 29, Andrews filed a document titled, “Plaintiff’s Verified Motion to Reinstate.” Finding that the affidavit did not verify the motion within the meaning of Texas Rule of Civil Procedure 165a(3), the trial court determined that its plenary jurisdiction had expired and refused to act on the motion to reinstate. On May 31, 2005, Andrews filed an amended verified motion to reinstate and a notice of appeal. HOLDING:Reversed and remanded. A trial court has plenary power to reinstate a case within 30 days of dismissal for want of prosecution. A timely filed verified motion to reinstate extends plenary power like a motion for new trial does. An unverified motion does not extend the trial court’s plenary power nor the time in which to perfect an appeal. If Andrews’ motion to reinstate was not verified, the appeal must be dismissed as untimely. Andrews concedes the motion to reinstate is defective because it is not notarized. The issue is whether counsel’s affidavit attached to the motion constituted sufficient verification for purposes of Texas Rule of Civil Procedure 165a(3). The plain language of the rule requires that the motion be verified but it is silent as to the form of the verification. Some courts have held that no particular form of verification is required. A verification declares that the facts contained in a certain document are true, while an affidavit contains facts stated under oath. “While we agree with Appellees that Rule 165a(3) requires that Andrews or his attorney swear that the factual statements made in the motion to reinstate are true, we fail to perceive why such a statement could not be included in an affidavit attached to the motion to reinstate.” No court has held that a motion to reinstate cannot be verified by affidavit. Counsel did not swear in his affidavit that the factual statements in the motion were true, but the motion expressly incorporated his affidavit. By incorporation, the motion itself contained sworn factual statements establishing that Andrews exercised due diligence in prosecuting the suit. The court concludes that Andrews’ motion to reinstate was verified. The trial court erred in concluding that it lacked jurisdiction to consider it. The trial court set the dismissal hearing for March 3, 2005. Andrews’ attorney argues in his brief that he appeared as scheduled but the trial court met with counsel in chambers and dismissed the suit without conducting a hearing. The dismissal order does not recite that a dismissal hearing was held. Appellees do not dispute Andrews’ assertion that the trial court failed to hold a dismissal hearing, but instead rely on the rule that when an appellant fails to request the court reporter’s presence during an in-chambers discussion, the record is presumed to support the trial court’s ruling. “The true ruling at issue, however, is not that the court failed to conduct a hearing but that the court thought it lacked jurisdiction to do so. Finding that the court possessed plenary power, we must conclude that Andrews was entitled to a hearing.” OPINION:McClure, J.; Barajas, CJ, McClure, and Chew, JJ.

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