IN RE JERRY D. PATCHEN, Relator
Proceeding on Petition for Writ of Mandamus
consists of Justices Keyes, Bland, and Huddle
Jerry D. Patchen, filed a petition for writ of mandamus
requesting that we compel the trial court to vacate an order
granting a new trial because the order was entered outside of
the trial court's plenary power. We conditionally grant the
underlying case involves a breach-of-contact action brought
by Patchen against real-parties-in-interest Maria Carmen
Gallegos and Margarito Rodriguez (together, "Real
Parties"), a husband and wife who were former clients.
On October 1, 2014, visiting judge Lamar McCorkle granted
Patchen a default judgment against Gallegos. Patchen then
moved for a default judgment against Rodriguez, which
visiting judge Sharolyn Wood signed on October 5, 2015. The
second default judgment resolved all claims against all
parties and notes, "The partial default judgment as to
Defendant Maria Carmen Gallegos is hereby made final and is
attached as Exhibit A." On the same day the final
judgment was signed, the trial court clerk mailed copies of
the judgments to Real Parties.
November 5, 2015-thirty-one days after Judge Wood signed the
final judgment-Real Parties filed a motion for new trial.
Neither Gallegos nor Rodriguez alleged that they did not
receive notice of the final judgment. On January 8, 2016, Judge
Wood signed an order granting a new trial. Ten months later,
on November 4, 2016, Patchen filed a motion to vacate the new
trial order on grounds that it was void for lack of
jurisdiction because the motion for new trial was filed after
the trial court's plenary power expired. The motion to
vacate has not been ruled upon, and Patchen asserts that the
trial court refused to rule upon the motion, maintaining that
the visiting trial judge who issued the order must hear the
motion and would not be available for a hearing until after
January 1, 2017.
November 30, 2016, Patchen filed a petition for writ of
mandamus requesting that this Court compel the trial court to
vacate the new trial order or, alternatively, compel the
trial court to hear his motion to vacate. In conjunction with
the mandamus petition, Patchen filed a motion to stay the
underlying trial set for December 5, 2016 pending our
determination of the petition. This Court issued an order
granting the stay and noted that the stay did not preclude
the trial court from ruling on Patchen's pending motion
to vacate the new trial order.
February 9, 2017, this Court requested that the parties
provide a status report regarding whether the motion to
vacate had been ruled upon by either the trial court or the
visiting judge and whether any additional actions had been
taken to obtain a ruling. Patchen's counsel filed a
status update stating that Patchen had contacted the trial
court's coordinator to request a hearing on his motion to
vacate but was informed that "the trial court will not
take any action in this case until it receives a mandate from
to be entitled to mandamus relief, the relator must
demonstrate that the trial court abused its discretion and
that it has no adequate remedy by appeal. See In re
Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex.
2004) (orig. proceeding); Walker v. Packer, 827
S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). A
"trial court commits a clear abuse of discretion when it
refuses to exercise its discretion to hear and rule on
pending motions." Grant v. Wood, 916 S.W.2d 42,
45 (Tex. App.-Houston [1st Dist.] 1995, orig. proceeding). A
trial court also clearly abuses its discretion if it reaches
a decision so arbitrary and unreasonable as to amount to a
clear prejudicial error of law. Walker, 827 S.W.2d
at 839. A trial court has no discretion in determining what
the law is or in applying the law to the facts. Id.
at 840. Thus, a clear failure by the trial court to analyze
or apply the law correctly will constitute an abuse of
discretion. In re Allstate Cty. Mut. Ins. Co., 85
S.W.3d 193, 195 (Tex. 2002) (orig. proceeding). Mandamus
relief is proper when the trial court issues a void order,
and the relator need not demonstrate the lack of an adequate
remedy by appeal. See In re Sw. Bell Tel. Co., 35
S.W.3d 602, 605 (Tex. 2000) (orig. proceeding); In re
Flores, 111 S.W.3d 817, 818 (Tex. App.-Houston [1st
Dist.] 2003, orig. proceeding) (per curiam).
court generally retains jurisdiction over a case for thirty
days after it signs a final judgment, during which time the
trial court has plenary power to change its judgment.
See Tex. R. Civ. P. 329b(a) ("A motion for new
trial, if filed, shall be filed prior to or within thirty
days after the judgment or other order complained of is
signed."); Tex.R.Civ.P. 329b(d) ("The trial court,
regardless of whether an appeal has been perfected, has
plenary power to grant a new trial or to vacate, modify,
correct, or reform the judgment within thirty days after the
judgment is signed."); Tex.R.Civ.P. 329b(f) ("On
expiration of the time within which the trial court has
plenary power, a judgment cannot be set aside by the trial
court except by bill of review for sufficient cause, filed
within the time allowed by law . . ."). Certain
post-judgment motions, including a motion for new trial, if
filed within this initial thirty day period, extend the trial
court's plenary jurisdiction. See Tex. R. Civ.
P. 329b(e). After expiration of plenary power, a trial court
still may sign an order declaring a prior judgment or order
to be void as having been signed after expiration of the
court's plenary power. See Tex. R. Civ. P.
329b(f); In re Martinez, 478 S.W.3d 123, 126 (Tex.
App.-Houston [14th Dist.] 2015, orig. proceeding).
case, the final judgment was signed on October 5, 2015 and no
motion was filed extending the trial court's plenary
power before it expired thirty days later on November 4,
2015. See Tex. R. Civ. P. 329b. The motion for new
trial filed on November 5, 2015 was untimely filed after the
trial court had already lost plenary power. Thus, the January
8, 2016 order granting the new trial was void because it was
entered 64 days after the court's plenary power expired
on November 4, 2016. See State ex rel. Latty v.
Owens, 907 S.W.2d 484, 486 (Tex. 1995) ("Judicial
action taken after the court's jurisdiction over a cause
has expired is a nullity."); In re T.G., 68
S.W.3d 171, 177 (Tex. App.-Houston [1st Dist.] 2002, pet.
denied) ("Judicial action taken after the trial
court's plenary power has expired is void.").