Opinion issued October 4, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-01022-CV
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JOSHUA NELSON ROBERTS, TDCJ #00782239, Appellant
V.
KELLY FRANKLIN AND ROBERT BEARD, Appellees
On Appeal from the 412th District Court
Brazoria County, Texas
Case No. 81601-I
MEMORANDUM OPINION
Joshua Roberts, an inmate at a Texas correction facility, sued Correctional
Officer Kelly Franklin and Assistant Warden Robert Beard for declaratory and
injunctive relief and damages arising out of the loss of some of his personal property.
Franklin and Beard contend that we lack jurisdiction over Roberts’s appeal because
the order from which Roberts appeals was not properly reinstated before it was
overruled by operation of law, rendering it void. We dismiss the appeal for want of
jurisdiction.
Background
On May 13, 2015, Roberts, proceeding in forma pauperis, filed his original
petition suing Franklin and Beard under the Texas Tort Claims Act, complaining of
Franklin’s alleged negligence in breaking his typewriter and taking two pictures
from him, and of Beard’s allegedly negligent failure to supervise Franklin.
Because Roberts is an indigent inmate, Chapter 14 of the Civil Practice and
Remedies Code applies to his lawsuit. On May 21, 2015, the trial court signed an
order dismissing Roberts’s suit as frivolous based on Roberts’s failure to file the
statutorily required affidavit of previous filings. See TEX. CIV. PRAC. & REM. CODE
ANN. § 14.004 (West Supp. 2016).
Two weeks later, Roberts filed a “Motion to File an Amended Complaint”
which the trial court treated as a motion to reinstate the case. The trial court’s docket
contains an entry entitled “Order to Reopen” for the same date. The record, however,
does not contain a signed order reopening the case.
On June 14, Franklin and Beard moved for dismissal based on Roberts’s
failure to name the Texas Department of Criminal Justice as the defendant. See TEX.
CIV. PRAC. & REM. CODE ANN. § 101.106(f) (West 2011). On October 23, 2015, the
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trial court granted the motion. Roberts filed a notice to appeal that order on
November 25, 2015.
Subject-Matter Jurisdiction
Franklin and Beard contend that this court lacks subject-matter jurisdiction
over Roberts’s appeal because the trial court’s October 23, 2015 order is void.
“Subject-matter jurisdiction refers to the court’s power to decide a case.” Kendall v.
Kendall, 340 S.W.3d 483, 495 (Tex. App.—Houston [1st Dist.] 2011, no pet.). For
this reason, a challenge to a court’s subject-matter jurisdiction cannot be waived and
may be asserted at any time during a suit. Waco Indep. Sch. Dist. v. Gibson, 22 S.W.
3d 849, 850 (Tex. 2000).
Franklin and Beard point out that the trial court dismissed Roberts’s suit on
May 21, 2015, and did not sign an order reinstating it before August 4, the day that
Roberts’s motion was overruled by operation of law, and the court’s plenary power
had expired 30 days later. See TEX. R. CIV. P. 165a(3) (requiring any order granting
motion to reinstate to be signed within 75 days of judgment or motion is overruled
by operation of law and trial court loses plenary power 30 days later). The May 21,
2015 order dismissing the suit for failure to comply with Chapter 14 became final—
and the trial court lost plenary power—on September 3, 2015. Thus, Franklin and
Beard contend, all actions taken by the trial court after that date are void.
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Texas Rule of Civil Procedure 165a expressly requires a “signed written
order” on a motion to reinstate. TEX. R. CIV. P. 165a(3); Intercity Mgmt. Corp v.
Chambers, 820 S.W.2d 811, 811–12 (Tex. App.—Houston [1st Dist.] 1991, orig.
proceeding). The docket entry noting that the case would be reopened does not
satisfy Rule 165a’s requirement. See Clark & Co. v. Giles, 639 S.W.2d 449, 450
(Tex. 1982); Intercity Mgmt. Corp., 820 S.W.2d at 812.
The order dismissing Roberts’s suit is dated May 21, 2015. Roberts moved
for reinstatement on June 5, 2015, but the trial court did not sign an order on that
motion before the 75-day period expired and Roberts’s motion was overruled by
operation of law. See TEX. R. CIV. P. 165a(3). On September 3, 2015, 105 days
after the trial court signed the May 21 order to dismiss, the trial court lost plenary
power over the case. See id.
Roberts attempts to appeal from the October 23, 2015 order dismissing
Franklin and Beard from his suit. That order, however, was signed after the trial
court’s subject-matter jurisdiction expired and is void. See State ex rel. Latty v.
Owens, 907 S.W.2d 484, 486 (Tex. 1995) (finding it settled law that judgment may
be declared void for want of jurisdiction upon appeal). An appellate court has no
jurisdiction to decide the merits of an appeal from a void judgment or order. See
Villalon v. Bank One, 176 S.W.3d 66, 69 (Tex. App.—Houston [1st Dist.] 2004, pet.
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denied) (citing Mellon Serv. Co. v. Touche Ross & Co., 946 S.W.2d 862, 864, 870
(Tex. App.—Houston [14th Dist.] 1997, no writ)).
Conclusion
Because the October 20, 2015 order is void, we dismiss the appeal for want
of jurisdiction. All pending motions are dismissed as moot.
PER CURIAM
Panel consists of Justices Bland, Massengale, and Lloyd.
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