A Texas lawsuit does not always end with a trial, settlement, or summary judgment. Sometimes a case ends because it simply stops moving.
Texas courts may dismiss a civil case for want of prosecution, commonly called a DWOP, when a party seeking affirmative relief fails to appear or when a case is not prosecuted with sufficient diligence. A DWOP can create serious problems, particularly when the statute of limitations has expired by the time the case is dismissed.
Fortunately, a dismissal for want of prosecution is not always the end of the case. Texas Rule of Civil Procedure 165a provides a procedure for seeking reinstatement—but the deadlines can be short.
This article explains dismissal for want of prosecution in Texas, Rule 165a, motions to reinstate, the conscious-indifference standard, and what parties should do when they receive a DWOP notice.
What Is a Dismissal for Want of Prosecution in Texas?
A dismissal for want of prosecution is a dismissal based on a party's failure to move a lawsuit toward resolution or, in certain circumstances, failure to appear.
Texas courts derive their DWOP authority from two principal sources:
- Texas Rule of Civil Procedure 165a; and
- A trial court's inherent authority to manage its docket and dismiss cases that are not prosecuted with due diligence.
These are related but distinct grounds for dismissal.
Texas Rule of Civil Procedure 165a and Failure to Appear
Rule 165a(1) expressly provides:
"A case may be dismissed for want of prosecution on failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice."
Thus, a plaintiff—or another party seeking affirmative relief—can face dismissal after failing to appear at a properly noticed hearing or trial.
Rule 165a also requires notice of the court's intention to dismiss and notice of the date and place of the dismissal hearing.
At the dismissal hearing, the court generally must dismiss the case unless good cause exists for maintaining it on the docket. If the court retains the case, Rule 165a contemplates a pretrial order establishing a trial date and deadlines for moving the case forward.
DWOPs Based on Supreme Court Time Standards
Rule 165a(2) provides another basis for dismissal. Cases that are not disposed of within the time standards promulgated by the Texas Supreme Court may be placed on a dismissal docket.
This means a party does not necessarily have to miss a hearing before a case becomes vulnerable to a DWOP. A case that remains unresolved without adequate progress can eventually attract the court's attention.
Local practices also matter. Texas trial courts may maintain dismissal dockets and procedures under applicable rules and standing orders, so attorneys and litigants should pay careful attention to notices issued by the particular court in which the case is pending.
A Texas Court's Inherent Authority to Dismiss an Inactive Case
Rule 165a is not the only source of DWOP authority.
Texas courts also possess inherent authority to dismiss a case when a plaintiff fails to prosecute it with due diligence. This authority exists independently of Rule 165a.
When considering whether a party has prosecuted a case diligently, courts may examine circumstances such as:
- How long the lawsuit has been pending;
- How much meaningful activity has occurred;
- Whether the party has requested a trial setting; and
- Whether reasonable explanations exist for periods of delay.
No single filing necessarily establishes diligence. Likewise, merely announcing that a party is ready for trial after a lengthy period of inactivity does not automatically prevent dismissal.
The practical question is whether the record as a whole demonstrates a genuine effort to move the case toward resolution.
What Happens When You Receive a Notice of Intent to Dismiss?
A Notice of Intent to Dismiss for Want of Prosecutionshould never be ignored.
The precise response will depend on the reason stated in the notice and the status of the lawsuit, but appropriate action may include:
- Filing a motion to retain the case on the docket;
- Explaining legitimate reasons for prior delay;
- Requesting a trial setting;
- Completing necessary discovery or other outstanding litigation tasks; and
- Appearing at the dismissal hearing prepared to demonstrate why the case should remain pending.
The important point is not simply to generate activity for activity's sake. The party should be prepared to demonstrate that the case is being actively and diligently prosecuted.
Can a Case Dismissed for Want of Prosecution Be Reinstated?
Potentially, yes.
Texas Rule of Civil Procedure 165a(3) provides a procedure for filing a motion to reinstate after a DWOP.
The rule provides, in part:
"A motion to reinstate shall set forth the grounds therefor and be verified by the movant or his attorney."
Ordinarily, the motion must be filed with the clerk within 30 days after the order of dismissal is signed, subject to the provisions of Rule 306a.
That last qualification matters.
What If You Did Not Receive Notice of the Dismissal?
Texas Rule of Civil Procedure 306a can affect post-judgment deadlines when a party does not timely receive notice or acquire actual knowledge of a signed judgment or appealable order.
Under Rule 306a(4), if an adversely affected party or the party's attorney neither receives the required notice nor acquires actual knowledge of the order within 20 days after it is signed, certain post-judgment periods can begin on the date notice or actual knowledge is received, whichever occurs first.
There is an outer limit: those periods cannot begin more than 90 days after the original judgment or order was signed.
Accordingly, a party who discovers an old DWOP should not automatically assume either that the 30-day deadline has expired or that it has been extended. Rule 306a has specific requirements and should be examined immediately.
What Must a Motion to Reinstate Show?
Rule 165a establishes an important substantive standard for reinstatement.
The court must reinstate the case upon finding, after a hearing, that the failure of the party or the party's 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."
This is why the factual explanation contained in—or supporting—a motion to reinstate matters.
A bare statement that someone was busy or simply forgot a setting may create difficulties. Depending on the facts, stronger explanations might involve circumstances such as:
- A calendaring mistake;
- A clerical error;
- A communication breakdown;
- A misunderstanding concerning a setting; or
- A failure to receive notice.
The relevant facts should be stated accurately and specifically rather than reduced to conclusory language.
Does a Motion to Reinstate Have to Be Verified?
Rule 165a(3) expressly states that a motion to reinstate must be verified by the movant or the movant's attorney.
This requirement is easy to overlook, particularly when someone is rushing to respond to a dismissal order.
Because reinstatement practice involves both substantive and procedural requirements, parties should carefully review Rule 165a before filing rather than treating a motion to reinstate like an ordinary motion.
Is There a Hearing on a Motion to Reinstate?
Yes. Rule 165a provides for a hearing on a timely filed motion to reinstate.
The movant should be prepared to present the circumstances explaining the failure that led to dismissal and demonstrate why the failure was not intentional or the result of conscious indifference.
The motion and hearing therefore should be approached as substantive opportunities to establish the factual basis for reinstatement—not merely as administrative formalities.
Why Can a DWOP Be So Dangerous?
A DWOP may sound procedural, but its consequences can be substantial.
One of the greatest risks is the statute of limitations.
Suppose a plaintiff timely files a lawsuit shortly before limitations expires. The case later sits inactive and is dismissed for want of prosecution. If limitations has expired in the meantime, simply filing a new lawsuit may not solve the problem.
Other possible consequences include:
- Additional filing fees and litigation expenses;
- Delay in resolving the underlying dispute;
- Loss of procedural progress already made in the original case;
- Appellate or post-judgment complications; and
- Potential professional-liability issues for attorneys responsible for prosecuting the case.
For that reason, avoiding a DWOP is generally much easier than trying to repair one afterward.
How Can You Reduce the Risk of a DWOP in Texas?
There is no universal rule that filing a document every certain number of days will protect a case from dismissal.
A better practice is to meaningfully advance the lawsuit.
That can include conducting necessary discovery, obtaining rulings on pending matters, complying with scheduling orders, requesting appropriate settings, preparing the case for trial, and responding promptly to court notices.
If circumstances legitimately require a lengthy delay, the record should accurately reflect what is occurring and why.
Frequently Asked Questions About Texas DWOPs
What does DWOP mean in Texas?
DWOP means dismissal for want of prosecution. It generally refers to dismissal because a party seeking affirmative relief failed to appear or because the lawsuit was not prosecuted diligently.
Can a judge dismiss a Texas lawsuit for inactivity?
Yes. Texas courts possess authority under Rule 165a and inherent authority to dismiss cases that are not properly prosecuted.
How long do I have to file a motion to reinstate after a DWOP?
Rule 165a generally requires a verified motion to reinstate to be filed within 30 days after the dismissal order is signed, subject to Rule 306a and its provisions concerning delayed notice or knowledge of an order.
Does a motion to reinstate need to be verified?
Yes. Rule 165a(3) states that the motion must be verified by the movant or the movant's attorney.
What must I prove to reinstate a case?
Under Rule 165a, the relevant failure must not have been intentional or the result of conscious indifference; instead, it must have resulted from accident, mistake, or another reasonable explanation.
Can I just refile after a DWOP?
Sometimes, but not always. Whether refiling is available depends on the circumstances, including the nature of the dismissal and whether the applicable statute of limitations has expired. A party should not assume that a DWOP automatically gives additional time to bring the underlying claim.
What should I do if I receive a DWOP notice?
Read the notice carefully, determine why the court is considering dismissal, calendar every deadline and hearing, and take appropriate steps to demonstrate diligent prosecution of the case. If necessary, consult an attorney promptly.
The Bottom Line
A dismissal for want of prosecution in Texas can turn an otherwise viable lawsuit into a serious procedural problem.
Texas Rule of Civil Procedure 165a permits dismissal in specified circumstances, and Texas courts also possess inherent authority to dismiss cases that are not prosecuted with due diligence. Once a DWOP is signed, the time for seeking reinstatement can move quickly.
The best strategy is prevention: respond to court notices, comply with settings and deadlines, and keep the lawsuit meaningfully moving toward resolution.
If a case has already been dismissed, however, prompt action matters. A properly prepared and timely motion to reinstate may provide a path to getting the case back on the court's docket.
This article is for general informational purposes only and does not constitute legal advice. The application of Texas procedural rules can depend on the facts of a particular case, applicable local rules, and subsequent changes in the law
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