law-plenary power jurisdiction | post-judgment motion | motion for new trial | appellate deadline |
untimely timeliness of
notice of appeal

PLENARY POWER: ORDERS ENTERED BEYOND IT ARE VOID

A trial court has plenary power over its judgment until it becomes final. Fruehauf Corp. v. Carrillo, 848 S.W.2d
83, 84 (Tex. 1993). "
Plenary power" refers to the period of time in which a trial court may vacate its
judgment by granting a new trial, or in which it may modify or correct its judgment. See Tex. R. Civ. P.
329b(d)-(f); In re Gillespie, 124 S.W.3d 699, 702 (Tex. App.--Houston [14th Dist.] 2003, orig.
proceeding). A rule 329b
motion for new trial or to modify, correct, or reform the judgment, or a
motion that has the same effect, is the only means by which a party may extend the appellate
timetable and the trial court's
plenary power over its judgment. Lane Bank Equip. Co. v. S. Equip.,
Inc., 10 S.W.3d 308, 313 (Tex. 2000); In re T.G., 68 S.W.3d 171, 176 (Tex. App.--Houston [1st Dist.]
2002, pet. denied).
Figueroa v. Davis (Tex.App.- Houston [1st Dist.] Apr. 2, 2009)(Radack)
(untimley
motion for new trial, notice of appeal, dismissal for lack of jurisdiction, DWOJ)

MORE CASE LAW ON PLENARY POWER FROM HOUSTON COURTS OF
APPEALS

Plenary Power of Trial Court.Texas Rule of Civil Procedure 329b provides that a trial court has
plenary power over its judgment for at least 30 days after the date of the judgment. Tex. R. Civ. P.
329b. Pertinently,
Rule 329b provides, "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
within thirty days after the judgment is signed." Tex. R. Civ. P. 329b(d). If a motion for new trial is timely
filed "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." Tex. R. Civ. P. 329b(f). Rule 329b further provides that "[a] motion to modify correct or reform a
judgment . . . shall be filed and determined within the time prescribed by this rule for a motion for new
trial and shall extend the trial court's plenary power and the time for perfecting an appeal in the same
manner as a motion for new trial." Tex. R. Civ. P. 329b(g). "In the event 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).
g
Medina v. Benkiser (Tex.App.- Houston [1st Dist.] Dec. 31, 2009)(Hanks)
(
trial court had no jurisdiction on modify judgment and add attorney's fee award after appeal completed)
VACATE TRIAL COUR JUDGMENT AND DISMISS CASE: Opinion by
Justice Hanks    
Before Justices Keyes, Alcala and Hanks   
01-08-00777-CV  Debra Medina, Mallory Miller, Jr., Dustan Costine, Chad Creighton, Richard Wyatt and Kay
Fisher v. Tina Benkiser and The Republican Party of Texas   
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge:
Hon. Roberta A. Lloyd

In re The Office of Attorney General of Texas (Tex.App.- Houston [1st Dist.] May 22, 2008)(Taft) (mandamus
granted) (
order found void, entered after expiration of plenary jurisdiction, appeal from associate judge to
referring court)
GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Taft
Before Justices Taft, Jennings and Bland
01-08-00114-CV In re The Office of the Attorney General of Texas
Appeal from
308th District Court of Harris County Trial Court Judge: Hon. Georgia Dempster

In re Shoreline Partners LLC (Tex.App.- Houston [1st Dist.] Fab. 28. 2008)(Keyes)
(
plenary jurisdiction, reinstatement order void)
GRANT PETITION FOR WRIT OF MANDAMUS:
Before Justices Taft, Keyes and Alcala
01-08-00013-CV In re Shoreline Partners, LLC, Prenits B. Tomlinson, Jr., Individually and Thomas E. Hardisty,
Individually--Appeal from 165th District Court of Harris County (
Judge Elizabeth Ray)

Plenary Power & supersedeas bond
In his fifth issue, Whitmire contends that the county court erred in increasing the supersedeas bond to $15,000
after the expiration of its plenary power.  See Tex. R. Civ. P. 329b(c)–(g).  Texas Rule of Appellate Procedure
24.3(a), however, expressly provides that “[e]ven after the trial court’s plenary power expires, the trial court has
continuing jurisdiction to do the following: (1) order the amount and type of security and decide the sufficiency
of sureties; and (2) if circumstances change, modify the amount or type of security required to continue the
suspension of a judgment’s execution.”  Tex. R. App. P. 24.3(a).  Greenridge requested the trial court to
increase the supersedeas bond to $15,000 because the appellate process was taking longer than anticipated
and Whitmire remained in possession of the apartment.  The county court therefore had the authority to modify
the amount of the supersedeas bond after the expiration of its plenary power.  See id.; see also Miller, 80 S.W.
3d at 164; Hamilton v. Hi-Plains Truck Brokers, Inc., 23 S.W.3d 442, 443 (Tex. App.—Amarillo 2000, no pet.).
[4]  
Whitmire v. Greenridge Place Apartments (Tex.App.- Houston [1st Dist.] Oct. 4, 2007)(Bland)(forcible
detainer)


even assuming for argument's sake that the trial court's plenary power had expired at the time it signed the
order denying Beluga's special appearance, a trial court retains statutory and inherent authority to enforce a
judgment after its plenary power expires.  BancorpSouth Bank v. Prevot, 256 S.W.3d 719,  724 (Tex. App.-
Houston [14th Dist.] 2008, no pet.) (trial court has jurisdiction to enforce a judgment filed under the Uniform
Enforcement of Foreign Judgments Act even though the trial court's plenary power had expired); see also Matz
v. Bennion, 961 S.W.2d 445, 452 (Tex. App.- Houston [1st Dist.] 1997, writ denied) (trial court has inherent
authority and explicit statutory authority under Texas Rule of Civil Procedure 308 to enforce its orders and
decrees beyond its plenary power); Katz v. Bianchi, 848 S.W.2d 372, 374 (Tex. App.- Houston [14th Dist.]
1993, orig. proceeding) (trial court is vested with explicit statutory authority under Rule 308 to enforce its
judgment and has inherent judicial authority to enforce its orders and decrees).  The only limit on this authority
is that “enforcement orders may not be inconsistent with the original judgment and must not constitute a
material change in substantial adjudicated portions of the judgment."  Katz, 848 S.W.2d at 374.
Beluga Chartering B.V. v. Timber S.A. (Tex.App.- Houston [14th Dist.] Jul. 23, 2009) (Boyce)
((
appeal from order denying special appearance, recognition of foreign judgments)  
AFFIRMED: Opinion by
Justice Boyce   
Before Justices Anderson, Guzman and Boyce  
14-08-00311-CV  Beluga Chartering B.V. v. Timber S.A.,   
Appeal from 281st District Court of Harris County
Trial Court Judge:
David J. Bernal


In Re Lone Star RV Sales (Tex.App.- Houston [14th Dist.] Dec. 20, 2007)(per curiam) (plenary jurisdiction
expired)
MOTION OR WRIT GRANTED: Per Curiam
Before Chief Justice Hedges, Justices Anderson and Seymore
14-07-00869-CV In Re: Lone Star RV Sales
Appeal from Co Ct at Law No 2 & Probate Ct of Brazoria County (Hon. Marc W. Holder)


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