In Re Johnson (Tex.App.- Houston [14th Dist.] Oct. 20, 2009)(per curiam) (SAPCR modification)
motion for new trial, order setting aside default judgment, extension of deadline from weekend day to following
plenary power)
Before Chief Justice Hedges, Justices Seymore and Sullivan  
14-09-00782-CV  In Re Jacqueline Johnson    
Appeal from 387th District Court of Fort Bend County
Trial Court Judge: Robert J. Kern  

M E M O R A N D U M   O P I N I O N

In this original proceeding, relator, Jacqueline Johnson, seeks a writ of mandamus ordering the respondent, the
Honorable Robert J. Kern, presiding judge of the 387th District Court in Fort Bend County, to vacate both the
order signed July 8, 2009, setting aside a default judgment and the August 27, 2009, order entered after the
new trial.

We deny the writ.

On February 23, 2009, Johnson filed a petition to modify the parent-child relationship in cause number 2005-
CV-143355, in the 387th District Court, styled In the Interest of C.M.G., a child. No answer was filed, and on
March 23, 2009, the trial court signed a default judgment.

On April 14, 2009, the real party in interest and father of the child, Kenneth Ray Gordon, Sr., filed a motion to
set aside the default judgment.[1] A hearing was set on April 21, 2009, and according to a docket entry, the
trial court granted the motion at the conclusion of the hearing. An order setting aside the default judgment was
not signed until July 8, 2009, however.

The trial court set the new modification trial for May 15, 2009. The case was reset until June 11, continued on
July 7, 2009, and concluded on August 12, 2009. On August 24, 2009, Johnson filed a motion to vacate the
order setting aside the default judgment. A hearing on the motion was held the next day. At the hearing,
Johnson questioned the trial court’s plenary power to set aside the default judgment. The order setting aside
the March 23, 2009, default judgment was not signed until July 8, 2009, which Johnson asserted was outside
the trial court’s plenary power. See Tex. R. Civ. P. 329b(e) (“If a motion for new trial is timely filed by any party,
the trial court, regardless of whether an appeal has been perfected, has plenary power to grant a new trial or
to vacate, modify, correct, or reform the judgment until thirty days after all such timely-filed motions are
overruled, either by a written and signed order or by operation of law, whichever occurs first.”). Gordon
responded that Johnson did not raise the issue until after four days of trial. The trial court denied Johnson’s
motion. On August 27, 2009, the trial court signed a new order in the modification proceeding. Johnson then
filed this proceeding seeking to vacate the July 8, 2009, order setting aside the default judgment and the
August 27, 2009, modification order as void, asserting that they were signed outside the trial court’s plenary

Mandamus relief is available if the trial court abuses its discretion, either in resolving factual issues or in
determining legal principles when there is no other adequate remedy by law. Walker v. Packer, 827 S.W.2d
833, 839-40 (Tex. 1992). A trial court abuses its discretion if it reaches a decision so arbitrary and
unreasonable as to amount to a clear and prejudicial error of law, or if it clearly fails to correctly analyze or
apply the law. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005). When a challenged order
is void for lack of jurisdiction, the relator is not required to establish that he has no adequate remedy by
appeal. In re Small, 286 S.W.3d 525, 530 (Tex. App.—Houston [14th Dist.] 2009) (orig. proceeding).

Jurisdiction is never presumed, cannot be conferred by consent, and cannot be waived. Powell v. Stover, 165 S.
W.3d 322, 324 (Tex. 2005) (orig. proceeding). Therefore, Johnson has not waived her challenge to the trial
court’s plenary jurisdiction by waiting until after the new trial had occurred to raise it.

It is clear that the trial court’s docket entry cannot substitute for a written order granting the new trial. Rule 329b
(c) of the Texas Rules of Civil Procedure states that a motion for a new trial can be granted only by a written,
signed order:

In the event an original or amended motion for new trial or a motion to modify, correct or reform a judgment is
not determined by written order signed within seventy-five days after the judgment was signed, it shall be
considered overruled by operation of law on expiration of that period.

Tex. R. Civ. P. 329b(c).

Texas Supreme Court has consistently held that a written order granting a new trial is mandatory. See
Horizon/CMS Healthcare Corp., Inc. v. Fischer, 111 S.W.3d 67, 68 (Tex. 2003) (per curiam) (declining to
overrule precedent, ignore Rule 329b, and accept docket entry in lieu of written order); Faulkner v. Culver, 851
S.W.2d 187, 188 (Tex.1993) (per curiam) (holding oral pronouncement and docket entry cannot be substituted
for a written order). Recently, the Texas Supreme Court ruled that a scheduling order also cannot take the
place of a signed order granting a new trial. In re Lovito-Nelson, 278 S.W.3d 773, 775-76 (Tex. 2009).

Therefore, we must determine whether the trial court’s July 8, 2009, order setting aside the default judgment
was timely. Gordon’s motion to set aside the March 23, 2009, default judgment was overruled by operation of
law seventy-five days later. See Tex. R. Civ. P. 329b(c). The seventy-fifth day, June 6, 2009, was a Saturday;
therefore, the motion was overruled by operation of law on Monday, June 8, 2009. See Tex. R. Civ. P. 4 (in
computing time periods under the rules of civil procedure, “[t]he last day of the period so computed is to be
included, unless it is a Saturday, Sunday or legal holiday, in which event the period runs until the end of the
next day which is not a Saturday, Sunday or legal holiday.”); see also Sims v. Fitzpatrick, 288 S.W.3d 93, 105
(Tex. App.—Houston [1st Dist.] 2009, no pet. h.) (applying rule 4 to computation of rule 329b(c) seventy-five-
day period for ruling on motion for new trial); Long John Silver’s Inc. v. Martinez, 850 S.W.2d 773, 776 (Tex.
App.—San Antonio 1993, writ dism’d) (same). The trial court’s plenary power extended thirty days thereafter
until July 8, 2009. See Tex. R. Civ. P. 329b(e). Therefore, the trial court timely signed its order setting aside the
default judgment on July 8, 2009, the last day of its plenary power.

We find no abuse of discretion. Accordingly, we deny the petition for writ of mandamus.


Panel consists of Chief Justice Hedges and Justices Seymore and Sullivan.

[1]  Johnson asserts that Gordon did not pay the filing fee for the motion for new trial, making the motion conditionally filed. See
Jamar v. Patterson, 868 S.W.2d 318, 319 (Tex. 1993). The record before this court is unclear. While the list of costs included in
the record does not reflect that any motion fees were paid, it also does not show that any motion fees are due. When a motion for
new trial is conditionally filed, it operates to extend the court’s plenary power, but a trial court is not required to consider it. Garza
v. Garcia, 137 S.W.3d 36, 38 (Tex. 2004). Here, even though the court may not have been required to consider the motion for the
trial, it set a hearing on the motion, considered its merits, and granted a new trial. See Weeks Marine, Inc. v. Salinas, 225 S.W.3d
311, 317 (Tex. App.—San Antonio 2007, pet. dism’d) (distinguishing Garza and citing Kvanvig v. Garcia, 928 S.W.2d 777, 779
(Tex. App.-—Corpus Christi 1996, no writ) (noting trial court has discretion to consider and rule on conditionally filed motion for
new trial)).