Phil Johnson's Dissent in In re Baylor Medical Center at Garland,
No. 06-0491 (Tex. Aug. 29, 2008)(Brister) (HCLC, mandamus, grant ungrant motion for new trial, new trial order,
reinstatement of original judgment, case abated to afford new trial judge opportunity to reconsider)  

I would [ ... ] not remand for the current judge to reconsider the order granting a new trial. I
would hold that the trial court’s plenary power to vacate the order has expired and to
remand would be useless. I would address the issues of whether Baylor is entitled to
mandamus review, and if so, whether it is entitled to relief.

IN RE BAYLOR MEDICAL CENTER AT GARLAND; from Dallas County; 5th district
(05-05-01663-CV, ___ SW3d ___, 01-04-06)
abatement order issued
stay order issued   
The Court abates this cause pursuant to Texas Rule of Appellate Procedure 7.2.
Justice Brister delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice O'Neill, Justice
Wainwright, Justice Green, Justice Medina, and Justice Willett joined.
Johnson delivered a dissenting opinion.  


Johnson Dissent in In Re Baylor Medical Center at Garland (Tex. 2008) (orig. proc.)


Justice Johnson, dissenting.

I recognize that there are conceptual and practical difficulties with the holding of Porter v. Vick, 888 S.
W.2d 789 (Tex. 1994). But those are better addressed through the rule-making process than through
the decision-making process. I would not overrule Porter, and thus dissent.

Until the 1981 amendments to the Rules of Civil Procedure became effective, former Rule 329b(3)
provided that motions and amended motions for new trial must be determined “within not exceeding
forty-five (45) days after the original or amended motion is filed,” unless the parties agreed otherwise
in writing. Absent an agreement by the parties or an earlier ruling by the court, the motion for new trial
was overruled by operation of law forty-five days after it was filed. Tex. R. Civ. P. 329b(3), 17 Tex. B.J.
569 (1955, amended 1981).

In Fulton v. Finch, 346 S.W.2d 823 (Tex. 1961), we addressed the issue of whether a trial court had
the power to reinstate a judgment that was set aside if the order reinstating it was entered beyond the
forty-five days allowed for determining the motion for new trial. There the trial court granted a new trial
within the specified forty-five day period. Id. at 825. After the forty-five day period lapsed, the trial court
set aside the new trial order and reinstated the original judgment. Id. at 826. This Court held that an
order granting a new trial must be set aside, if at all, within the forty-five day period set by the Rules. Id.
at 827. We reasoned that “[i]t was not the intention of [Rule 329b] that an order granting a motion for
new trial should remain open to countermand until a term of court which might be of six month’s
duration should finally expire.” Id.

Amendments to the Rules effective in 1981 changed the numbering and language of Rule 329b. After
the amendments, Rule 329b(c) provides that if a motion for new trial is not determined by written order
within seventy-five days after the judgment is signed, the motion is overruled by operation of law. Rule
329b(e) now provides that the trial court has plenary power to grant a new trial until thirty days after a
timely-filed motion is overruled by a written order or by operation of law, whichever occurs first.

For over twenty-seven years since its amendment, this Court has continued to interpret Rule 329b in
accord with Fulton. In Fruehauf Corp. v. Carrillo, 848 S.W.2d 83 (Tex. 1993), the trial court granted a
motion for new trial but vacated the order within the seventy-five day period referenced in Rule 329b.
The court of appeals held that the trial court did not have authority to vacate its order granting the new
trial. Id. at 84. Citing Fulton, we held that the trial court had plenary power to reconsider its order during
the seventy-five day period specified by Rule 329b. Id.

In Porter, 888 S.W.2d 789, we explained that Freuhauf did not alter the holding of Fulton. Porter
concerned a non-jury trial in which Judge Vick entered judgment for the defendant. Id. at 789. The
plaintiffs filed a motion for new trial, and a visiting judge granted it. Id. Judge Vick later vacated the
new trial order. Id. The plaintiffs sought mandamus relief. Id. They contended that Judge Vick’s order
vacating the new trial was void because it was entered more than seventy-five days after the judgment
was signed. Id. This Court sustained the contention and conditionally granted mandamus relief
directing Judge Vick to set aside his order vacating the new trial order because it was void. Id. at 789-
90. In doing so, we referenced how long the trial court’s plenary power lasted when a new trial had
been granted:

All parties concede that Judge Vick signed the order vacating the order granting new trial long past
the time for plenary power over the judgment, as measured from the date the judgment was signed.
See, e.g., Tex. R. Civ. P. 329b.

[The plaintiffs] seek mandamus relief from this last order, contending it is void under Fulton v. Finch,
346 S.W.2d 823, 826 (Tex. 1961), in which this court held that any order vacating an order granting a
new trial which was signed outside the court's period of plenary power over the original judgment is
void. We sustain their contention. We did not substantively modify the Fulton v. Finch rule in Fruehauf
Corp. v. Carillo, 848 S.W.2d 83 (Tex. 1993), but merely clarified that the trial court could vacate, or
“ungrant,” the new trial grant within the plenary power period. Id. (emphasis added).

The concept of a trial court’s plenary power expiring seventy-five days from the judgment date has
been questioned. See Biaza v. Simon, 879 S.W.2d 349, 356-57 (Tex. App.—Houston [14th Dist.]
1994, writ denied); Gates v. Dow Chem. Co., 777 S.W.2d 120, 124 (Tex. App.—Houston [14th Dist.]
1989), judgm’t vacated by agr., 783 S.W.2d 589 (Tex. 1989). Whether Rule 329b should be amended
in regard to this issue has been the subject of discussion in the Supreme Court Advisory Committee.
See In re Luster, 77 S.W.3d 331, 336 n.3 (Tex. App.—Houston [14th Dist.] 2002, [mand. denied]);
Hearing on Rule 329(b) Before the Supreme Court Advisory Committee (Mar. 8, 2002) (transcript
available at
(last visited Aug. 26, 2008). But the rule has not been amended and courts have appropriately
followed our lead by holding orders vacating or “ungranting” new trial orders are void if entered more
than seventy-five days from the date judgment was signed. E.g., In re Luster, 77 S.W.3d at 335;
Ferguson v. Globe-Texas Co., 35 S.W.3d 688, 691-92 (Tex. App.—Amarillo 2000, pet. denied)
(noting that according to the plain language of Rule 329b(e), “a trial court may only vacate an order
granting a new trial during the period in which its plenary power continues, and that plenary power only
continues in effect for 75 days after the date the judgment is signed”); see also cases cited by the
Court ___ S.W.3d at ___ n.8.
I would adhere to the rule of Fulton and Porter until and unless Rule 329b is amended. We have said
that once we adopt rules, they have the same force and effect as statutes.[1] See In re City of
Georgetown, 53 S.W.3d 328, 332 (Tex. 2001); Mo. Pac. R.R. v. Cross, 501 S.W.2d 868, 872 (Tex.
1973); Freeman v. Freeman, 327 S.W.2d 428, 433 (Tex. 1959). We consider stare decisis as having
its greatest force in decisions construing statutes and statutory-like promulgations. See Fiess v. State
Farm Lloyds, 202 S.W.3d 744, 749-50 (Tex. 2006). In Fiess, we observed that if, over a quarter of a
century previously, we had incorrectly interpreted an insurance policy form promulgated by a state
agency, it was strange that the form had not been changed. Id. Similarly here, even though we are
interpreting rules we have adopted, I would view prior interpretations of them with at least the
deference we afford to a form promulgated by an agency. Absent unusual circumstances, once rules
have been adopted and interpreted, as has Rule 329b in regard to the question before us, we should
change those rules through the rules process as opposed to through decisions interpreting them. We
have interpreted amended Rule 329b consistently for over twenty-seven years, and we interpreted its
predecessor the same for twenty years before that. The rule has not changed since we last addressed
it, and I would not reinterpret it now.
There are practical reasons for staying with the Fulton and Porter construct. Most of them relate to the
idea that if a new trial is granted, at some point the verdict or judgment needs to be put behind the
parties and court so they can focus on preparing for the new trial without worrying about what effect the
prior verdict and judgment will have: they need closure as to the prior trial. For example, if a trial court
grants a new trial and its power over whether to enter judgment on the prior verdict or non-jury
judgment is not restricted, then the party who prevailed in the prior trial can, and probably will, pursue
motion(s) to vacate the new trial order whenever a colorable argument can be made. The situation in
this case provides an example of what can happen. The Court is remanding for the third judge to
consider whether a new trial is appropriate or whether judgment should be entered on the verdict.
When a new trial has been granted and a new judge takes over the case for any reason, why would the
party who prevailed during the first trial not move for judgment to be entered on the result of the trial
under today’s decision? And this rule may also entail political consideration for judges who have
granted new trials. Further, under the Court’s construct, a trial court theoretically has the power to grant
more than one new trial and then pick the verdict or result the judge prefers. There needs to be some
cutoff beyond which the parties and the trial court can proceed to the new trial without having the
spectre of the prior verdict and judgment hanging over them. That can be, and in my view should be,
done by rule.

I would follow Porter and would not remand for the current judge to reconsider the order granting a new
trial. I would hold that the trial court’s plenary power to vacate the order has expired and to remand
would be useless. I would address the issues of whether Baylor is entitled to mandamus review, and if
so, whether it is entitled to relief.

                                                                 Phil Johnson


OPINION DELIVERED: August 29, 2008


[1] The Court does not adopt rules in a vacuum. It is assisted in the task by a Supreme Court Advisory
Committee and numerous other sources, including State Bar committees and sections of the Bar, legislators,
lawyers in general, and the public. See Texas Court Rules: History and Process, http://www.supreme.courts. (last visited Aug. 26, 2008).