in Re J. Allan Goddard ( 2010 )

IN THE
TENTH COURT OF APPEALS
No. 10-10-00183-CV
IN RE J. ALLAN GODDARD
Original Proceeding
MEMORANDUM OPINION
In this original proceeding, Relator J. Allan Goddard seeks mandamus relief
because the respondent trial judge, in an order dated April 30, 2010, set aside a July 20,
2009 judgment, well beyond the expiration of the trial court’s plenary power. See TEX.
R. CIV. P. 329b(c, d).
A trial court retains plenary power to grant a new trial or to vacate,
modify, correct, or reform a judgment within thirty days after the
judgment is signed. TEX. R. CIV. P. 329b(d); First Alief Bank v. White, 682
S.W.2d 251, 252 (Tex. 1984). After the expiration of those thirty days, the
trial court has no authority to set aside a judgment except by bill of review
as provided by law. TEX. R. CIV. P. 329b(d); Thursby v. Stovall, 647 S.W.2d
953, 954 (Tex. 1983). During the time in which a court may vacate, set
aside, modify or amend its previous order, such action must, to be
effective, be memorialized by written order that is express and specific.
McCormack v. Guillot, 597 S.W.2d 345, 346 (Tex. 1980) (citing as the correct
rule, Poston Feed Mill Co. v. Leyva, 438 S.W.2d 366, 368 (Tex. Civ. App.—
Houston [14th Dist.] 1969, writ dism’d w.o.j.)); In the Interest of Hamilton,
975 S.W.2d 758, 761 (Tex. App.—Corpus Christi 1998, pet. denied). A trial
judge’s oral pronouncement vacating a judgment with a docket entry
commemorating the same cannot substitute for the written order required
by Rule 329b. See Faulkner v. Culver, 851 S.W.2d 187, 188 (Tex. 1993) (citing
Clark & Co. v. Giles, 639 S.W.2d 449, 450 (Tex. 1982)). Nor does a ruling in
open court suffice to vacate a judgment if it is not reduced to writing
within the statutory period. Ex Parte Olivares, 662 S.W.2d 594, 595 (Tex.
1983). A court must speak through its written orders and we cannot
presume an intent on the part of a court to vacate, set aside, modify or
amend an order in the absence of an express, specific and written order.
In the Interest of Hamilton, 975 S.W.2d at 761.
Tex. Prop. & Cas. Ins. Guar. Ass’n v. De Los Santos, 47 S.W.3d 584, 587 (Tex. App.—
Corpus Christi 2001, no pet.). We do not find an equitable exception to this applicable
law.
Generally, Relators can obtain mandamus relief only upon showing
that the court committed a clear abuse of discretion and that they have no
adequate legal remedy. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992)
(orig. proceeding). However, when a party establishes that the court
rendered a void order, she is “entitled to mandamus relief without a
showing that there is no adequate remedy by appeal.” In re Union Pac.
Resources Co., 969 S.W.2d 427, 428 (Tex. 1998) (orig. proceeding).
In re Jeffries, 979 S.W.2d 429, 434 (Tex. App.—Waco 1998, orig. proceeding).
“An order is void when a court has no power or jurisdiction to render it. The
writ of mandamus will not lie to correct a merely erroneous or voidable order of the
trial court, but will lie to correct one which the trial judge had no power to render.”
Urbish v. 127th Jud. Dist. Ct., 708 S.W.2d 429, 431 (Tex. 1986).
We are constrained to find that the trial court had no power to set aside the
judgment, that the April 30, 2010 order is void, and that Goddard is entitled to
mandamus relief. We grant his petition and order Respondent to vacate his April 30,
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2010 order setting aside the July 20, 2009 judgment. We are confident that Respondent
will comply with our ruling, so the writ will issue only if Respondent fails to advise this
Court in writing within fourteen days after the date of this opinion that he has vacated
the order.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Petition granted and writ conditionally issued
Opinion delivered and filed July 21, 2010
[OT06]
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