in Re Sandra Gonzalez ( 2019 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00151-CV
In re Sandra Gonzalez
ORIGINAL PROCEEDING FROM TRAVIS COUNTY
DISSENTING OPINION
Although I agree with the majority’s decision to deny the relief requested in this
original proceeding, I write separately to explain that in the circumstances presented here, I
would conditionally grant mandamus relief because I believe that the district court had no
jurisdiction to issue an order reinstating the case.
The mandamus record before this Court shows that the district court signed three
separate orders from proceedings heard between October 25, 2018, and January 9, 2019. The
first order was signed October 25, 2018, and stated that “the Court sua sponte, declines
jurisdiction at this time” over the suit. The second order was signed on November 14, 2018, and
specified that the “cause is dismissed in its entirety to allow the divorce suit and suit affecting the
parent-child relationship to proceed in California.” The record before this Court does not
indicate that any other motions were filed within 30 days of the second order dismissing the case.
However, the trial court signed another order on March 7, 2019, specifying, among other things,
that its prior “Order of Dismissal is vacated.”
After the district court issued its November 14, 2018 order disposing of all
matters for the court, the court had thirty days’ plenary jurisdiction to sign an order for new trial
or to reinstate the case. See Tex. R. Civ. P. 329b(d). Although the district court’s plenary
jurisdiction could have been extended by a timely motion for new trial, the district court’s
plenary power to grant a new trial or reinstate the case was limited to a maximum of 105 days
after the court dismissed the case in its entirety. See id. R. 329b(a), (c), (e). Accordingly, it
appears that the district court lost jurisdiction in this case, at the latest, on February 27, 2019.
For these reasons, I would direct the district court to vacate its March 7, 2019 order. See In re
Nguyen, 155 S.W.3d 191, 194 (Tex. App.—Tyler 2003, orig. proceeding) (conditionally granting
petition for writ of mandamus and directing trial court to “vacate its . . . order” because court
signed order after plenary power expired and because signing order outside plenary power
constituted abuse of discretion); see also In re Crosby, No. 01-11-00691-CV, 2011 WL 4507232,
at *1 (Tex. App.—Houston [1st Dist.] Sept. 29, 2011, orig. proceeding) (mem. op.)
(conditionally granting petition for writ of mandamus and directing trial court to vacate its order
of reinstatement because reinstatement order was not signed until “long after its plenary power
expired”).
For these reasons, I respectfully dissent from the majority’s denial of the petition
for writ of mandamus.
__________________________________________
Thomas J. Baker, Justice
Before Justices Goodwin, Baker, and Triana
Filed: April 22, 2019
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