Ex Parte Thomas A. Pena

Fourth Court of Appeals San Antonio, Texas January 12, 2015 No. 04-14-00884-CR EX PARTE Thomas A. PENA, From the 144th Judicial District Court, Bexar County, Texas Trial Court No. 2010CR12630-W1 Honorable Lorina I. Rummel, Judge Presiding ORDER This matter concerns an accelerated appeal from an order denying appellant’s application for writ of habeas corpus pursuant to article 11.072, which was signed on November 12, 2014. On January 5, 2015, counsel for appellant filed an “Advisory to Court and Request for Guidance.” In that document, counsel stated that after notice of appeal was filed, the trial court rendered an order withdrawing its November 12, 2014 order denying the application. The trial court also ordered the matter transferred to the magistrate court for review of appellant’s application. According to appellant, the trial court took this action because of concerns regarding a potential conflict of interest given the trial judge’s service as prosecutor in the same trial court. The order withdrawing the prior order and transferring the matter to the magistrate court was signed on December 15, 2014. It appeared to this court that the December 15, 2014 order is void because it was signed outside the trial court’s plenary power. More specifically, the trial court signed its original order denying the habeas application on November 12, 2014. Accordingly, that order became final, and the trial court’s plenary power expired, thirty days later, i.e., on December 12, 2014. Thus, it appeared the trial court lost jurisdiction over this matter on December 12, 2014. Thus, if the foregoing is accurate, the December 15, 2014 order withdrawing the November 12, 2014 order was void. We therefore ordered the parties to show cause why this court should not retain the appeal on this court’s docket as an appeal from the November 12, 2014 order given the trial court’s lack of jurisdiction. Both appellant and the State filed responses, admitting the trial court’s plenary power expired, rendering the December 15, 2014 order withdrawing the December 12, 2014 order and transferring the matter to the magistrate court void. However, the parties agree, as do we, that in light of the trial court’s potential conflict of interest, this court may abate this matter to the trial court to allow the court to reconsider its November 12, 2014 order and possibly render a new order given that the December 15, 2014 order is void. To this end, appellant filed an unopposed motion to abate, as well as a motion to extend time to file appellant’s brief. Based on the foregoing, we GRANT appellant’s unopposed motion to abate and ORDER this matter abated and remanded to the trial court to permit the trial court to reconsider its December 12, 2014 order in light of the potential conflict of interest. The trial court may render any order it deems fit, including rendering an order withdrawing the November 12, 2014 order and transferring the matter to another court for reconsideration of appellant’s original application for writ of habeas corpus. We further ORDER that the parties advise this court of any new order rendered by the trial court, and we ORDER the district clerk, in the event the trial court renders a new order, to prepare a supplemental clerk’s record containing any such order and file it in this court within fifteen days after the date of any such order. If the trial court renders a new order and transfers the matter to another court for reconsideration of the application, any pleadings, findings, or orders generated as a result of such transfer shall be included in a second supplemental clerk’s record and filed in this court in a timely manner. We ORDER appellant’s counsel to advise this court of any such pleadings, findings, or orders and the date of same. Appellant’s brief is currently due January 20, 2015, but appellant filed a motion to extend time to file his brief. Given the foregoing, that motion is DENIED AS MOOT. Per our order, this matter is currently abated and all appellate deadlines are therefore suspended until further order of this court. We order the clerk of this court to serve a copy of this order on the trial court, the magistrate court, this district clerk, and all counsel. _________________________________ Marialyn Barnard, Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 12th day of January, 2015. ___________________________________ Keith E. Hottle Clerk of Court