TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-23-00155-CV
In re Texas Department of Family and Protective Services
ORIGINAL PROCEEDING FROM HAYS COUNTY
NO. 19-0314, THE HONORABLE R. BRUCE BOYER, JUDGE PRESIDING
MEMORANDUM OPINION
D.B.C.’s (Father) parental rights were terminated following a bench trial in August
2019. Over three years later, on February 17, 2023, the district court 1 issued an order granting
Father a new trial based on his failure to adequately prepare for the first trial.
The Department of Family and Protective Services (the Department) seeks a
determination from this Court that the trial court’s order of February 17, 2023 granting Father a
new trial is void because the trial court’s plenary power expired thirty days after the original order
of termination was signed and therefore the trial court lacked jurisdiction to enter it. For the
following reasons, we agree with the Department that the order is void and conditionally grant
mandamus relief.
1 “District court” is synonymous with “referring court” for purposes of this
memorandum opinion.
FACTUAL AND PROCEDURAL BACKGROUND
The Department initiated a parental rights termination suit against D.B.C. (Father)
and A.C. (Mother) on or about February 11, 2019. Neither party objected to trial in front of an
associate judge. After a bench trial in front of the associate judge, both Mother and Father’s
parental rights were terminated pursuant to Sections 161.001(b)(1)(D), (E) and (P) of the Texas
Family Code, along with a finding that termination was in the best interest of the child. See Tex.
Fam. Code § 161.001(b)(1)(D), (E) and (P), (2). The order of termination was formalized in
writing by the associate judge on August 30, 2019. The same day, after Mother and Father timely
filed their requests for de novo hearing, the court issued a setting of October 14, 2019, for the
de novo hearing for both parents to take place. On September 6, 2019, before the de novo hearing
could take place, the district court judge adopted the associate judge’s August 30, 2019, order
of termination. 2
After the district court signed the order, Father did not file a motion for new trial or
a motion to modify, correct, or reform the judgment. Father did not file a bill of review. Father
did, however, file a motion for jury trial and motion for continuance, seeking to extend the date
for the de novo hearing. The court denied the request for jury trial but granted the motion for
continuance for the de novo hearing. The de novo hearing for both parents was eventually held in
front of the district court approximately two years later on September 8, 2021, where both parties
presented witness testimony and evidence. 3 After the hearing, the district court did not
2 The parties do not dispute that Father timely received notice of the September 6, 2019
order; in fact, his attorney’s signature is included on the last page of the termination order, along
with the other parties who approved the order as to form.
3 The record is not clear as to why the de novo hearing was delayed until approximately
two years after the original order of termination was signed by the associate judge on
August 30, 2019.
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immediately issue a written ruling as to whether the associate judge’s original order of termination
would be affirmed or rejected. The case then lingered for over a year while the parties sought a
ruling from the September 8, 2021 de novo hearing. The Department filed a motion to dismiss for
want of jurisdiction, and a hearing was held on December 7, 2022. The district court did not issue
either an oral or written ruling regarding the associate judge’s order of termination following the
hearing. In response, the Department filed a motion to enter the order of judgment, and a hearing
was held on January 18, 2023. The same day, the district court issued an order affirming the
termination of Mother’s parental rights. One month later, on February 17, 2023, the district court
issued a sua sponte order granting Father a new trial. The district court found that Father was
entitled to a new trial because he did not have sufficient time to prepare for the original termination
trial. The Department then filed this action.
DISCUSSION
Although the Department seeks to appeal the trial court’s rulings made after the
trial court’s plenary power allegedly expired, the usual method for this type of challenge is through
a petition for writ of mandamus. See In re Southwest Bell Tel. Co., 35 S.W.3d 602, 605 (Tex.
2000) (orig. proceeding); see also In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex.
2004) (orig. proceeding); see also In re Columbia Med. Ctr. Of Las Colinas, Subsidiary, L.P.,
290 S.W.3d 204, 200 (Tex. 2009) (orig. proceeding) (reaffirming that order granting new trial is
not reviewable on direct appeal, while allowing mandamus review of order granting new trial
under certain circumstances). Accordingly, we will construe the Department’s appeal as a request
for mandamus relief. See CMH Homes v. Perez, 340 S.W.3d 444, 454 (Tex. 2011) (holding that
the appellate court should not have dismissed an interlocutory appeal for want of jurisdiction and
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instead should have construed the appeal as petition for writ of mandamus). Having construed the
Department’s filing as a petition for writ of mandamus, we now determine whether mandamus
relief is warranted.
Mandamus relief is available only if the court clearly abused its discretion and the
party has no adequate remedy by appeal. See In re Southwest Bell Tel. Co., 35 S.W.3d at 605
(citing In re Long, 984 S.W.2d 623, 625 (Tex. 1999)). Mandamus is proper if a trial court issues
an order beyond its jurisdiction. See In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998); see also
Board of Disciplinary Appeals v. McFall, 888 S.W.2d 471, 472 (Tex. 1994). If an order is issued
beyond the trial court’s jurisdiction, the order is void. See State ex rel. Latty v. Owens, 907 S.W.2d
484, 485 (Tex. 1995). A trial court’s issuing a void order is an abuse of discretion, and relator
need not show it did not have an adequate appellate remedy in that circumstance. See In re
Southwest Bell Tel. Co., 35 S.W.3d at 605 (explaining that a void order is an abuse of discretion,
and mandamus is a proper remedy regardless of whether the relator may obtain relief through
an appeal).
We note that the Department specifically seeks a declaration from this Court that
“any order from the trial court signed after October 6, 2019, that purports to modify, vacate,
correct[,] or reform the order signed by the district judge on September 6, 2019, to be void.”
Although the reasoning of this opinion might support that request, the core of the dispute at issue
here is whether the trial court abused its discretion by ordering and scheduling an impending new
trial. For that reason, we limit our analysis to whether the February 17, 2023 order granting Father
the new trial is void.
In seeking its requested relief, the Department argues that the associate judge’s
order of termination issued on August 30, 2019, became a final, appealable order on September 6,
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2019, when the district court judge signed it. It argues that the trial court’s plenary power to
modify, vacate, correct, or reform the order ended thirty days later on October 6, 2019. See Tex.
R. Civ. P. 329b. Because the February 17, 2023 order granting Father a new trial was issued far
outside this thirty-day window, the Department argues, the district court had no jurisdiction to
enter it and the order is void. See In re Office of the Attorney General of Texas, 264 S.W.3d 800,
809 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (holding that “orders entered outside a trial
court’s plenary power are void.”).
Trial courts enjoy plenary power to grant a new trial or to vacate, modify, correct,
or reform the judgment for thirty days after a judgment is entered. See Tex. R. Civ. P. 329b. Only
a few procedural vehicles—including a motion for new trial or a motion to modify, correct, or
reform the judgment—can extend the court’s plenary power past the thirty-day window up to an
additional seventy-five days. 4 See id. R. 329b(c)-(e). If an order or judgment is entered after the
court loses plenary power, the order or judgment is void. See id. R. 329b(f); see also Latty,
907 S.W.2d at 485. Rule 329b(f) states:
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; provided that the court may at any time correct
a clerical error in the record of a judgment and render judgment nunc pro tunc under
Rule 316, and may also sign an order declaring a previous judgment or order to be
void because signed after the court’s plenary power had expired.
4 However, even if a qualifying motion were to be filed, the court’s plenary power would
not be indefinite – the trial court’s jurisdiction over its judgment cannot exceed 105 days. See
Lane Bank Equipment Co. v. Smith Southern Equipment Co., Inc., 10 S.W.3d 308, 310 (Tex. 2000)
(explaining that the filing of a motion for new trial or a motion to modify, correct or reform the
judgment within the initial thirty-day period extends the trial court’s jurisdiction over its judgment
up to an additional seventy-five days) (emphasis added); see also Rule 329b(c) (“In the event an
original or amended motion for new trial or a motion to modify, correct or reform the judgment is
not determined by written order signed within seventy-five days after the judgment was signed, it
shall be considered overruled by operation of law on expiration of that period.”).
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Tex. R. Civ. P. 329b(f).
Here, there is no dispute that if the September 6, 2019 order terminating Father’s
parental rights constitutes a final judgment, as the Department contends, then under Rule 329b,
the district court’s plenary power expired on October 6, 2019. Therefore, whether the district
court’s February 17, 2023 new trial order is void turns on whether the district court’s September 6,
2019 termination order operated as a final and appealable judgment, despite the parents’ pending,
timely requests for de novo hearing.
If a party timely requests a de novo hearing, the trial court must hold a hearing
within thirty days. See Tex. Fam. Code § 201.015(f) (“The referring court, after notice to the
parties, shall hold a de novo hearing not later than the 30th day after the date on which the initial
request for de novo hearing was filed with the clerk of the referring court.”); see also Fountain
v. Knebel, 45 S.W.3d. 736, 739 (Tex. App.—Dallas, 2011, no pet.). The purpose of this deadline
is so the parties may obtain prompt resolution of appeals from an associate judge’s ruling. See
Harrell v. Harrell, 986 S.W.2d. 629, 631 (Tex. App—El Paso, 1998, no pet.).
The procedural history of this case mirrors that of Latty. In Latty, the father
(Owens) appealed the associate judge’s order determining he was the father of the child in question
and requiring him to pay $135 per month in child support. 907 S.W.2d at 485. Owens timely
appealed the associate judge’s recommendations to the district court, triggering his right to a
de novo hearing by that court. Id. Before the de novo hearing could happen, however, the district
court judge signed an order adopting the associate judge’s report “as the orders of this Court.” Id.
Eleven days later, the district court commenced the de novo hearing, which was not completed
until about a month later due to ongoing discovery disputes. Id. When the hearing finally
concluded approximately 135 days after signing the order adopting the associate judge’s report,
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the district court issued another order concluding that Owens was not the biological father of the
child in question, and accordingly did not owe any child support. Id. The State appealed this
second order. Id. The Texas Supreme Court held that “[a]lthough the district court should have
held a hearing on Owens’ [request for de novo hearing] before signing an order adopting the
[associate judge’s] report, its failure to do so did not deprive it of jurisdiction to issue the order or
make the order void.” Id. It further held that the failure to hold a de novo hearing prior to adopting
the associate judge’s order was a mere “procedural defect” and did not deprive the court of
jurisdiction to act. Id.; see also In re A.J.F., 313 S.W.3d 475, 478 (Tex. App.—Dallas May 13,
2010, no pet.).
Here, although Father expected to have a de novo hearing set in a timely manner
before the district court judge signed the final order, the pending request for de novo hearing did
not deprive the district court of its inherent power to act. See Latty, 907 S.W.2d at 485. After the
district court judge signed the order on September 6, 2019, it was final and appealable, and no
actions were taken that would have extended the trial court’s plenary power past the original thirty
days. See Tex. R. Civ. P. 329b. As a result, the trial court’s plenary power expired on October 6,
2019. See id. 329b(a)-(b), (d)-(e). The district court therefore did not have jurisdiction to enter
the February 17, 2023 order. See In re A.J.F., 313 S.W.3d 475 at 478 (stating that judicial action
taken after the court’s jurisdiction over a case has expired is a nullity). Accordingly, the court’s
February 17, 2023 order granting Father a new trial—signed over three years after the court’s
plenary power expired—is void, and the trial court abused its discretion by issuing that order.
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CONCLUSION
Because the trial court abused its discretion by issuing an order granting Father a
new trial after its plenary power expired, mandamus relief is warranted. Accordingly, we
conditionally grant the Department’s petition for writ of mandamus and direct the trial court to
vacate the February 17, 2023 order. See Tex. R. App. 52.8(c). The writ will issue only if the trial
court fails to comply.
__________________________________________
Edward Smith, Justice
Before Justices Baker, Kelly, and Smith
Filed: July 14, 2023
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