law-plenary-power | How long does the trial court retain plenary jurisdiction, when does plenary
power expire? | motion for new trial | motion to dismiss for lack of jurisdiction | void orders and judgments |
EXPIRATION OF PLENARY POWER |
POST-JUDGMENT PROCEDURE |
TIMELINESS OF NOTICE OF APPEAL |
A notice of appeal must be filed within 30 days after the judgment is signed. TEX. R. APP. P. 26.1. If a
timely motion for new trial is filed, a notice of appeal must be filed within 90 days after the judgment is
signed. Tex. R. App. P. 26.1(a)(1). The Court of appeals lacks jurisdiction over an appeal when the
notice of appeal is not timely filed. See Tex. R. App. P. 25.1(b); Garza v. Hibernia Nat'l Bank, 227 S.W.
3d 233, 233 (Tex. App.-Houston [1st Dist.] 2007, no pet.).
Similarly, the trial court retains plenary power over a case for thirty days after signing a final judgment.
TEX. R. CIV. P. 329b(d); Lane Bank Equip. Co. v. Smith S. Equipment, Inc., 10 S.W.3d 308, 310 (Tex.
2000). The plenary power of the court can be extended by timely filing an appropriate postjudgment
motion, such as a motion for new trial or a motion to modify, correct, or reform the judgment. Lane
Bank, 10 S.W.3d at 310. Filing such a motion extends the trial court's plenary power up to 75 days. Id.;
TEX. R. CIV. P. 329b(c). "During this time, the trial court has plenary power to change its judgment."
Lane Bank, 10 S.W.3d at 310.
Filing a timeline-extending motion outside the court's plenary power does not revive or extend the
court's plenary power. See Smith v. Comm'n for Lawyer Discipline, 42 S.W.3d 362, 363 (Tex. App.-
Houston [14th Dist.] 2001, no pet.) (holding late-filed motion for new trial could not be considered by
judge because plenary power had expired). Likewise, a judgment signed by the trial court outside of
its plenary power is void and has no effect. TEX. R. CIV. P. 329b(f).
When no motion for new trial is filed, the court's plenary power expired thirty days after the order of dismissal is
signed. See State ex rel. Latty v. Owens, 907 S.W.2d 484, 485-86 (Tex. 1995); In re C.N., 313 S.W.3d 490, 492
(Tex. App. - Dallas 2010, no pet.); In re A.J.F., 313 S.W.3d 475, 478 (Tex. App. - Dallas 2010, no pet.).
Mandamus is the appropriate remedy when a trial court enters an order after its plenary power expires. See In
re Southwestern Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000).
In Re Brookshire Grocery Co., No. 05-0300 (Tex. Jan. 4, 2008)(Opinion by Wallace Jefferson)
(appellate procedure, posttrial motions, procedure, extension of trial court's plenary jurisdiction)
IN RE BROOKSHIRE GROCERY COMPANY; from Wood County; 6th district (06-05-00033-CV, 160 S.W.3d
The Court denies the petition for writ of mandamus.
Chief Justice Jefferson delivered the opinion of the Court, in which Justice O'Neill, Justice Medina, Justice
Johnson, and Justice Willett joined.
Justice Hecht delivered a dissenting opinion, in which Justice Wainwright, Justice Brister, and Justice Green
In this mandamus action, the court considers whether a motion for new trial filed within thirty days of judgment,
but after a preceding motion for new trial has been overruled, extends the trial court’s plenary power under
Texas Rule of Civil Procedure 329b, and holds that it does not. Accordingly the court denies relator
Brookshire Grocery Company’s petition for writ of mandamus
APPEALS COURT CASES INVOLVING EXPIRATION OF PLENARY POWER
ISSUE IN WHICH THE TEXAS SUPREME COURT DENIED REVIEW
CHERYL SUE WALLINGFORD v. TRINITY UNIVERSAL INSURANCE COMPANY; from Travis County; 7th district
(07-06-00142-CV, ___ S.W.3d ___, 10-23-07, pet. denied May 2008)
(DWOP dismissal, reinstatement, plenary power)
The trial court dismissed the "old act" (1) workers' compensation case of appellant Cheryl Sue Wallingford for
want of prosecution. Thereafter, she received notice of the dismissal, timely filed a motion to reinstate, and
participated in the hearing of her motion. Despite indication of the trial court's intention to reinstate, no order of
reinstatement was signed. After the court's plenary jurisdiction expired, it sustained Trinity's motion to
dismiss for lack of jurisdiction. Wallingford timely appealed. Finding the trial court lost jurisdiction when no
order of reinstatement was signed during the period of its plenary jurisdiction, we affirm.
When Does Plenary Power Expire?
In its fifth issue, DGM argues that the October 26, 2006 order granting Atmos's motion for frivolous pleadings is
void because the trial court's plenary jurisdiction expired one day earlier on October 25, 2006.
A trial court may impose sanctions after a judgment is entered so long as it retains plenary jurisdiction. Scott &
White Mem'l Hosp. v. Schexnider, 940 S.W.2d 594, 596 (Tex. 1996).
A court retains jurisdiction over a case for thirty days after entry of judgment. Tex. R. Civ. P. 329b(d).
This period is extended up to an additional seventy-five days upon the timely filing of a motion for new trial
or motion to correct, modify, or reform the judgment. Tex. R. Civ. P. 329b(c), (g); Lane Bank Equip. Co.
v. Smith S. Equip., Inc., 10 S.W.3d 308, 310 (Tex. 2000).
Judicial action taken after the trial court's plenary power has expired is void. In re Dickason, 987 S.W.2d 570,
571 (Tex. 1998); State ex rel Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995).
Here, the trial court's order granting Atmos's no evidence motion for summary judgment and its order granting
Atmos's motion for frivolous pleadings, both signed on September 25, 2006, disposed of all claims and parties.
The trial court's plenary power expired thirty days later on October 25, 2006, if neither party timely filed a
motion for new trial or motion to correct, modify, or reform the judgment, which would have extended
the trial court's plenary power until thirty days after such a motion was overruled by written order or by law.
Blackburne filed a motion to reconsider the September 25, 2006 sanctions order on October 13, 2006. The
motion states in part the following:
[Blackburne and DGM] request that the Court  reconsider the September 25, 2006 Order Granting Atmos
Energy's Motion Against Blackburne for Frivolous Pleadings because the order is defective under Rule 13 and
Chapter 10 in that the order does not contain the findings required by Rule 13 and Chapter 10. . . .
The Court's September 25 Order Granting Atmos Energy's Motion for Frivolous Pleadings merely states that
Atmos' motion is granted, and without any further findings or explanation, that Blackburne's claims against
Atmos are dismissed with prejudice, and awarding Atmos sanctions in the amount of $24,000 against David,
Goodman & Madole. . . .
Blackburne and David, Goodman & Madole request the Court to reconsider its order and withdraw the order in
its entirety. Alternatively, Blackburne and David, Goodman & Madole request the Court to clarify the order with
the findings required by TRCP 13 and CPRC § 10.005. [Emphasis added.]
Blackburne thus did not ask the trial court to merely reconsider its decision to impose sanctions. Rather, it also
requested that the trial court correct the September 25, 2006 order because it does not contain the required
findings mandated by rule 13 and section 10.005 of the civil practice and remedies code. Because
Blackburne's motion requested that the trial court correct or modify its September 25, 2006 order so that it
meets the specificity requirements delineated in rule 13 and section 10.005, the motion constituted a rule
329b(g) motion to modify, correct, or reform a judgment; therefore, it extended the trial court's
plenary power until thirty days after the motion was overruled by written order or by law. See Tex. R.
Civ. P. 329b(e), (g). Having signed the October 26, 2006 amended order granting Atmos's motion for frivolous
pleadings just thirteen days after Blackburne filed its motion to reconsider, the trial court had jurisdiction to
enter the October 26, 2006 amended order awarding Atmos sanctions. Accordingly, we overrule DGM's fifth
In its third issue, DGM argues that the September 25, 2006 order awarding sanctions does not meet the
specificity requirements of rule 13 and section 10.005. In its fourth issue, DGM argues that the trial court
abused its discretion by signing the September 25, 2006 order without having conducted an evidentiary
hearing. Because the October 26, 2006 order superseded the September 25, 2006 order, we overrule DGM's
third and fourth issues, which present arguments concerning the September 25, 2006 order.