Summary
holding requirement of rule that judge "shall" set hearing is mandatory
Summary of this case from In re SalazarOpinion
No. D-1194.
September 18, 1991.
Appeal from the 129th District Court of Harris County, Hugo A. Touchy, J.
James R. Jones, Houston, for petitioner.
Luke L. Daniel, Clarence A. West, John E. Fisher, Houston, for respondent.
This appeal arises from the trial court's failure to reinstate a wrongful discharge suit against the City of Houston after dismissing it for want of prosecution. Milton I. Thordson, petitioner, complains that the trial court's failure to hold a hearing on his timely-filed, properly verified motion to reinstate was an abuse of discretion because it is required by Texas Rule of Civil Procedure 165a. We agree and reverse and remand this cause to the trial court for a hearing on the motion to reinstate.
Rule 165a(4) requires that the judge "shall set a hearing on the motion [to reinstate] as soon as practicable" and "[t]he court shall notify all parties or their attorneys of record of the date, time and place of the hearing." In Gulf Coast Investment Corp. v. NASA 1 Business Center, we held that under this language "it is clear that an oral hearing is required on any timely filed motion to reinstate under rule 165a." 754 S.W.2d 152, 153 (Tex. 1988) (per curiam denying writ). Given the rule and the language of the case, it was not within the discretion of the trial court to fail to hold an oral hearing on the motion to reinstate. There is no dispute that Thordson did properly request a hearing. Although the grounds of attorney nonfeasance stated in his motion may not trigger mandatory reinstatement of his claim under rule 165a(3), he, nevertheless, is entitled to a hearing on his motion. We therefore grant Petitioner's application for writ of error, and pursuant to Texas Rule of Appellate Procedure 170, without hearing oral argument, a majority of this court reverses the judgment of the court of appeals, 809 S.W.2d 905, and remands the case to the trial court to conduct a hearing on the motion for reinstatement as required by Texas Rule of Civil Procedure 165a.