Brandy Brenay Charles and Ronald Dwayne Whitfield v. Texas Department of Family and Protective Services ( 2022 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: B.B.C. and R.D.W. v. Texas Department of Family and
Protective Services
Appellate case number: 01-18-00311-CV
Trial court case number: 2017-02559J
Trial court: 314th District Court of Harris County
On May 8, 2018, the Court granted the motion to dismiss appeal filed by appellants,
B.B.C. and R.D.W. The Court’s judgment also issued May 8, 2018. Appellants filed a
motion for rehearing and motion for en banc reconsideration of the Court’s May 8, 2018
opinion, both of which were dismissed as moot on August 18, 2018.
Intermediate appellate courts, such as this Court, retain plenary power over an
appeal for a period of: (1) sixty days after its judgment is entered if no timely filed motion
for rehearing or motion for en banc reconsideration is filed, or (2) thirty days after the
appellate court overrules all timely filed motions for rehearing or motions for en banc
reconsideration. See TEX. R. APP. P. 19.1. Generally, once an intermediate appellate
court’s plenary power expires, it lacks jurisdiction to take any action in an appeal. See
Nunu v. Risk, 612 S.W.3d 645, 655 (Tex. App.—Houston [14th Dist.] 2020, pet. denied)
(dismissing appeal for lack of jurisdiction where plenary power of intermediate appellate
court expired).
Once an intermediate appellate court’s plenary power expires, the appellate court’s
jurisdiction is limited to only those actions as prescribed in rule 19.3 of the Texas Rules of
Appellate Procedure. See TEX. R. APP. P. 19.3. As noted above, the Court issued the
judgment in this appeal on May 8, 2018 and appellants’ motion for rehearing and motion
for en banc reconsideration were dismissed as moot by the Court on August 18, 2018.
Accordingly, the Court’s plenary power over this appeal expired on September 17, 2018.
See TEX. R. APP. P. 19.1(b).
On February 25, 2022, B.B.C. and R.D.W. jointly presented to the Court “Motions
to Recall Mandates” in this appellate cause number, as well as appellate cause number
01-18-00485-CV.
As analyzed above, and as appellants were advised in our April 9, 2019 order on
their motions for stay and recall of mandates, this Court’s plenary power expired on
September 17, 2018. After the Court’s plenary power expires, this Court has no jurisdiction
to take any action on a case unless expressly authorized by the Texas Rules of Appellate
Procedure. See TEX. R. APP. P. 19.3(a)-(d). Notably, none of the permitted post-plenary
power bases set forth in rule 19.3 apply here.
Absent plenary power, appellants’ motion must be dismissed for lack of
jurisdiction.
It is so ORDERED.
Judge’s signature: _____/s/ Amparo Guerra_____
 Acting individually  Acting for the Court
Date: ___March 3, 2022____
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