Court of Appeals of Texas, Fifth District, Dallas
Opinion Filed Date: August 1, 2019
Original Proceeding from the 160th Judicial District Court
Dallas County, Texas Trial Court Cause No. DC-18-07364
Justices Whitehill, Partida-Kipness, and Pedersen, III
PEDERSEN, III, JUSTICE
original proceeding, relator seeks relief from the trial
court's May 16, 2019 reinstatement order, which relator
asserts is void because it was signed after the trial court
lost plenary power. We requested that the real party in
interest and respondent file their responses, if any, to the
petition for writ of mandamus. Real party in interest Rachel
Williams-Harris filed a response, and relator filed a reply.
After reviewing the petition, the response, the reply, and
the mandamus record, we conclude relator is entitled to the
relief requested. We, therefore, grant this writ instanter.
trial court dismissed the underlying case for want of
prosecution by written order on February 28, 2019. The real
party in interest timely filed a motion to reinstate on March
15, 2019. The trial court denied the motion to reinstate by
written order on April 2, 2019. The real party in interest
then filed a motion for reconsideration on April 4, 2019. On
May 16, 2019, the trial judge signed an order granting the
motion for reconsideration and reinstating the case.
original proceeding, relator contends the May 16
reinstatement order is void because, pursuant to Rule
165a(3), the trial court's plenary power expired on May
2, 2019, thirty days after all timely-filed motions to
reinstate were overruled by written and signed order or by
operation of law. Tex.R.Civ.P. 165a(3). As such, the May 16
reinstatement order was signed when the court lacked plenary
power to reinstate the case.
of Mandamus Review
obtain mandamus relief, a relator must show both that the
trial court has clearly abused its discretion and that the
relator has no adequate appellate remedy. 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 (Tex. 1992) (orig. proceeding). Mandamus is
an available remedy to set aside a reinstatement order signed
after the trial court's plenary power expires. In re
S. Mgmt. Servs., Inc., No. 05-19-00653-CV, 2019 WL
3244492, at *1 (Tex. App.-Dallas July 19, 2019, orig.
proceeding) (mem. op.); In re Gen. Motors Corp., 296
S.W.3d 813, 830 (Tex. App.-Austin, 2009, orig. proceeding);
see also In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605
(Tex. 2000) (orig. proceeding) (per curiam) (holding that
orders issued after expiration of trial court's plenary
power are void and constitute abuse of discretion).
action taken after the trial court's plenary power
expires is void. In re Sw. Bell, 35 S.W.3d at 605;
In re Darling Homes, No. 05-05-00497-CV, 2005 WL
1390378, at *2 (Tex. App.- Dallas June 14, 2005, orig.
proceeding) (mem. op.); In re T.G., 68 S.W.3d 171,
177 (Tex. App.- Houston [lst Dist.] 2002, pet. denied). Here,
the real party in interest timely filed a motion to reinstate
on March 15, 2019, and the trial court denied the motion to
reinstate by written order on April 2, 2019. The trial court
retained plenary power for thirty days thereafter.
See Tex. R. Civ. P. 165a(3). As a matter of law, the
trial court was divested of jurisdiction on May 2, 2019.
Accordingly, respondent's order reinstating the case on
May 16, 2019, is void because it was signed after the trial
court lost plenary power. See e.g., In re Gen. Motors
Corp., 296 S.W.3d at 830.
party in interest argues that her Rule 329b motion for
reconsideration, which was filed within the trial court's
plenary power on April 4, 2019, extended such plenary power
beyond the thirty-day period set out by Rule 165a(3). She
maintains that the motion for reconsideration was the
equivalent of a motion for new trial or a motion to modify,
correct, or reform the judgment and, as such, extended the
plenary period for thirty days after the trial court ruled on
the motion for reconsideration. Compare Tex. R. Civ.
P. 329b with Tex. R. Civ. P. 165a(3). Under this
theory, the trial court's reinstatement order was signed
within the trial court's plenary period and is not void.
We disagree. Rule 165a specifically addresses reinstatement
and controls over Rule 329b in cases involving dismissal for
want of prosecution under Rule 165a. In re R.C.M.,
No. 02-09-080-CV, 2010 WL 1267759, at *5 (Tex. App.-Fort
Worth Apr. 1, 2010, orig. proceeding) (mem. op.); see
also Nealy v. Home Indem. Co., 770 S.W.2d 592, 594 (Tex.
App.-Houston [14th Dist.] 1989, no writ) (rejecting
plaintiff's attempt to "stack" Rule 165a and
Rule 329b motions to extend period of trial court's
plenary jurisdiction). To hold otherwise "eviscerates
the mandates of Rule 165a" and would "judicially
write Rule 165a out of the rules of civil procedure."
In re R.C.M., 2010 WL 1267759, at *4. Here, the
judgment at issue is the judgment dismissing the case for
want of ...