in Re: Thomas G. Anderson ( 2004 )

Petition for Writ of Mandamus Denied and Memorandum Opinion filed December 9, 2004

Petition for Writ of Mandamus Denied and Memorandum Opinion filed December 9, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-04-01099-CV

____________

IN RE THOMAS G. ANDERSON, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

M E M O R A N D U M   O P I N I O N

On November 17, 2004, relator filed a petition for writ of mandamus in this Court.  See Tex. Gov=t. Code Ann. ' 22.221 (Vernon 2004); see also Tex. R. App. P. 52.  Relator claims the trial court acted outside its plenary power in granting real party=s motion for new trial and in setting aside the judgment.

Final judgment was entered on March 24, 2004.  A timely motion for new trial was filed.  When a timely motion for new trial is filed, the trial court has plenary power to vacate the judgment until thirty days after all such timely-filed motions are overruled, either by a written, signed order, or by operation of law, whichever occurs first.  Tex. R. Civ. P. 329b(e).  Thus, the trial court was within its plenary power to set aside the judgment in its order of June 17, 2004.^[1] 

Accordingly, we deny relator=s petition for writ of mandamus.

PER CURIAM

Petition Denied and Memorandum Opinion filed December 9, 2004.

Panel consists of Justices Anderson, Hudson, and Frost.

---

^[1]  Because we find the trial court was within its plenary power to vacate the judgment, we need not address the trial court=s additional ruling, granting the motion for new trial.