Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-14-00804-CV
IN RE BEXAR COUNTY CRIMINAL DISTRICT ATTORNEY'S OFFICE,
Jonathan Watkins and Thomas Velez
Original Mandamus Proceeding 1
PER CURIAM
Sitting: Catherine Stone, Chief Justice
Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Delivered and Filed: December 31, 2014
PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED
On November 19, 2014, relators Jonathan Watkins, Thomas Velez, and the Bexar County
Criminal District Attorney’s Office filed a petition for writ of mandamus, complaining of the trial
court’s orders requiring relators, jointly and severally, to pay sanctions to opposing counsel for
submitting an application for protective order which the trial court found to be groundless and filed
for the purpose of harassment. See TEX. CIV. PRAC. & REM. CODE ANN. § 10.001, .004 (West
2002). We conclude the trial court’s orders were entered after the expiration of plenary power and
are void. Therefore, we conditionally grant mandamus relief.
1
This proceeding arises out of Cause No. 2014-CI-05810, styled State of Texas for the Protection of Janessa Brown
v. Stephen F. Brown Jr., pending in the 131st Judicial District Court, Bexar County, Texas, the Honorable Solomon
Casseb III presiding.
04-14-00804-CV
BACKGROUND
The State of Texas, through the Bexar County District Attorney’s office, filed three
applications for protective orders in three separate proceedings on behalf of Janessa Brown, a
victim alleging family violence by her former spouse, real party in interest Stephen F. Brown Jr.
The first, filed in May 2013 in Cause No. 2013-CI-07299, was dropped by the State at the victim’s
request and dismissed.
Alleging Stephen was continuing to harass her, Janessa later returned to the district
attorney’s office seeking assistance in obtaining a protective order. The second application for
protective order, filed in August 2013 in Cause No. 2013-CI-13417, was based on the same factual
allegations as the first, and was denied by the trial court. While declining to grant the requested
protective order, the trial court did issue temporary orders and admonished Stephen to stay away
from Janessa or risk entry of a protective order.
Janessa contacted the district attorney’s office again concerning additional acts allegedly
committed by Stephen on or about April 5, 2014. The third application for protective order, filed
April 10, 2014 in the suit underlying this mandamus proceeding, contained the same conduct
alleged in the first two, as well as allegations concerning the recent incident. Stephen filed his
original answer on April 21, which was a general denial. The trial court entered an ex parte
protective order and scheduled the matter for a full hearing on the merits.
At the April 29 hearing on the State’s third application, after conferring with senior
prosecutors regarding potential criminal charges pending against Stephen, Watkins and Velez
advised the trial court that the State wished to drop the setting on the third application or,
alternatively, nonsuit the proceeding, as long as it was without prejudice to refiling. Counsel for
Stephen interjected that she would not accept a dismissal unless it was “with prejudice,” and that
she had affirmative claims for relief on file on behalf of Stephen. Counsel represented that an
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amended answer containing a claim for frivolous filing and request for sanctions had been filed
that morning, which needed to be set for hearing. The trial court signed an order granting the
State’s request for nonsuit and dismissing the third application for protective order without
prejudice. The order notes that Stephen, as the respondent, had a motion seeking affirmative relief
on file. The docket sheet reflects that on May 2, Stephen’s counsel filed a “motion to set affirmative
claims.”
After a hearing on June 2, the trial court signed an order on June 12, in which it found the
State’s third application for protective order was “filed in an effort to harass the Respondent, to
cause unnecessary delay and to needlessly increase the cost of litigation.” The court ordered
relators to pay sanctions to opposing counsel in the amount of $1,950.00. The order recites that
the June 2 hearing was on “Respondent’s Motion to Set Respondent’s Affirmative Claims.”
Relators filed a motion for new trial following the sanctions order and the trial court
subsequently issued an order on September 16 modifying the June order. The September order
contained additional findings and included the same award of $1,950.00 in attorney’s fees as
sanctions for filing a groundless application for the purpose of harassment. Relators challenge
these two orders in this mandamus proceeding.
ANALYSIS
Mandamus is an extraordinary remedy, available only when a trial court has clearly abused
its discretion and a party has no adequate remedy by appeal. 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). Mandamus is appropriate where a trial court has issued an order
after the expiration of its plenary power because such orders are void. In re Brookshire Grocery
Co., 250 S.W.3d 66, 68 (Tex. 2008) (orig. proceeding) (citing In re Sw. Bell Tel. Co., 35 S.W.3d
602, 605 (Tex. 2000) (orig. proceeding)). When the trial court’s orders are void, mandamus relief
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is available regardless of whether there is an adequate remedy by appeal. Sw. Bell Tel. Co., 35
S.W.3d at 605; In re Mask, 198 S.W.3d 231, 233-34 (Tex. App.—San Antonio 2006, orig.
proceeding).
Pursuant to Rule 162 of the Texas Rules of Civil Procedure, ordinarily, a dismissal of one
party’s claims does not prejudice another party’s right to have a pending claim for affirmative
relief, such as a request for sanctions or attorney’s fees, heard and determined by the court. TEX.
R. CIV. P. 162. However, the other party’s request for affirmative relief must be “pending at the
time of dismissal” in order to survive a nonsuit. Id.; see Crites v. Collins, 284 S.W.3d 839, 842-43
(Tex. 2009) (motion for sanctions filed before order of dismissal remains pending after nonsuit).
Here, the clerk’s record provided to this court does not reflect that Stephen had any affirmative
claim for relief pending prior to the order of dismissal signed on April 29, 2014. Although counsel
represented that a claim for affirmative relief was contained in Stephen’s amended answer, there
is no file-stamped copy in the record and the trial court’s docket sheet does not reflect the filing of
an amended answer on behalf of Stephen.
If there are no other affirmative claims for relief pending on behalf of another party when
the trial court grants a nonsuit and orders dismissal, the nonsuit is effective immediately and the
trial court’s dismissal order constitutes a final order. See Lehmann v. Har-Con Corp., 39 S.W.3d
191, 200 (Tex. 2001) (order determining the last pending claim is final). Because the record in this
case does not reflect any claims for relief pending prior to the State’s nonsuit being granted, the
April 29 order constitutes a final judgment. See Lehmann, 39 S.W.3d at 195 (judgment disposing
of all pending parties and claims constitutes a final judgment); see also Park Place Hosp. v. Estate
of Milo, 909 S.W.2d 508, 510 (Tex. 1995) (finality can be achieved by dismissal).
Generally, a trial court retains jurisdiction over a case for only thirty days after the entry of
a final judgment, absent the filing of certain post-judgment motions which may extend the trial
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court’s plenary power. See TEX. R. CIV. P. 329b; Lane Bank Equip. Co. v. Smith S. Equip. Co., 10
S.W.3d 308, 310 (Tex. 2000). The court’s plenary power runs from the date the trial court signs
its final order. TEX. R. CIV. P. 329b(d), (e); Unifund CCR Partners v. Villa, 299 S.W.3d 92, 96
(Tex. 2009).
The trial court’s April 29 order unequivocally dismisses the case from the trial court’s
docket. The record fails to reveal that any party filed any motion that would extend the trial court’s
plenary power within thirty days of the April 29 dismissal order. Therefore, the trial court’s
judgment of dismissal became final and the trial court lost plenary power over the parties and the
case thirty days later, on May 29. See TEX. R. CIV. P. 329b(d); Lane Bank Equip. Co., 10 S.W.3d
at 310. After May 29, the trial court lacked jurisdiction to enter the orders challenged by this
mandamus proceeding.
Because the challenged orders were entered after the expiration of plenary power, they are
void. Sw. Bell Tel. Co., 35 S.W.3d at 605; Scheel v. Alfaro, 406 S.W.3d 216, 226 (Tex. App.—San
Antonio 2012, pet. denied) (no power to assess sanction after the expiration of plenary power).
Because our determination of this issue is dispositive of the relators’ right to mandamus relief, we
need not address the remaining arguments asserted in relators’ petition.
CONCLUSION
Based on the foregoing analysis, we hold the challenged orders awarding sanctions against
relators are void. Accordingly, we conditionally grant the petition for writ of mandamus and direct
the trial court to vacate its June 12 and September 16, 2014 orders in their entirety. The writ will
issue only if the trial court fails to comply within fifteen days from the date of this court’s order.
PER CURIAM
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