Let a lawsuit lie inactive too long, and it may be dismissed for want of prosecution, either on a party’s motion or on the trial court’s. Dismissal may be based on failure to dispose of the case within the time standards in Texas Rule of Civil Procedure 165a(2) or under the trial court’s inherent authority.

Trial courts generally bend over backward to avoid dismissing a case for want of prosecution. Almost any excuse is accepted, particularly if the case is not overly stale.

In In re Conner, 458 S.W.3d 532 (Tex. 2015) (orig. proceeding) (per curiam), the Texas Supreme Court granted mandamus for the first time against a trial judge who refused to dismiss a case for want of prosecution. Although Conner applied existing law in a new context, the facts of that case—which involved an unexplained ten-year delay in advancing the case toward final resolution—were remarkable enough to warrant such an unprecedented move.

Situations in which appellate courts will interfere with a trial court’s management of its own docket are rare. The availability of mandamus for a trial court’s refusal to dismiss a case for want of prosecution depends on whether the court ignored a “conclusive presumption of abandonment of the plaintiff’s case.” Mandamus is appropriate only when the trial court clearly abused its discretion by disregarding this presumption and allowing the case to continue.

The threshold inquiry in analyzing whether the conclusive presumption of arose is whether “a delay of an unreasonable duration” occurred. Without such a delay, a trial court does not abuse its discretion by refusing to dismiss.

A second prerequisite to the conclusive presumption of abandonment is the lack of a sufficient explanation for the delay. When a trial court is presented with an explanation it accepts as excusing the delay, and reasonable minds could differ, no clear abuse of discretion has occurred.

Another Option?

Here in Travis County, another avenue to mandamus may exist if a motion to retain was not timely filed under the district court local rules.

District court DWOP notices refer the recipient to Local Rule 8, which contain dismissal procedures. Local Rule 8.3 states that matters for which the court administrator has provided notice of dismissal for want of prosecution “will be dismissed summarily without further proceedings on the dismissal date indicated in the notice of dismissal or thereafter unless at least one party files a motion to retain that complies with the requirements of this chapter.”

Under Local Rule 8.5(a), “[m]otions to retain must set forth the factual and legal basis for retaining the case and must be filed at least 14 days prior to the dismissal date specified in the notice of dismissal.” Local Rule 8.5 fathoms two scenarios in which a motion to retain may be granted: (1) “[i]f a timely motion to retain is filed and no timely objection is filed” (8.5(c)); and (2) “[i]f a timely motion to retain and a timely objection are both filed” (8.5(d)). Fairly read, the rule precludes granting an untimely filed motion to retain —e.g., one filed less than 14 days before the dismissal date stated in the DWOP notice.

Simple enough, right?

In practice, though, that’s not how it works. In my recent experience, no action was taken on what I argued was an untimely motion to retain. After a few inquiries, the court administrator’s office was kind enough to notify the parties that a hearing would be required.

So we had a hearing, and my side prevailed. Had the district court granted the motion to retain, though, I was prepared to mandamus the ruling under Conner, but also because the local rules say game over if the motion wasn’t timely.

This isn’t a position I find myself in often, but I’m taking note. If I ever lose one of these, I intend to see that the local rules are enforced. Otherwise, why have the rules at all?