In the Interest of O.E.S., a Child v. the State of Texas

VACATE and DISMISS and Opinion Filed April 11, 2023
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-01162-CV
IN THE INTEREST OF O.E.S., A CHILD
On Appeal from the 256th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-20-13200
MEMORANDUM OPINION
Before Chief Justice Burns, Justice Pedersen, III, and Justice Goldstein
Opinion by Chief Justice Burns
The trial court signed a default judgment in the underlying lawsuit on
November 12, 2020. Appellant filed a motion seeking to vacate the default
judgment in March 2022 that was denied following a hearing before an associate
judge. Following a de novo hearing, the trial court signed an order adopting the
associate judge’s order on October 26, 2022. Appellant appeals from this order.
Because it appeared the trial court lacked plenary power when it signed the
appealed order, we questioned our jurisdiction over this appeal and directed
appellant to file a letter brief addressing the jurisdictional issue.
Judicial action taken after the expiration of the court’s plenary power is a
nullity, and any orders signed outside the trial court’s plenary jurisdiction are
void. See Malone v. Hampton, 182 S.W.3d 465, 468 (Tex. App.—Dallas 2006, no
pet.). We have no jurisdiction to consider the merits of an appeal from a void
order. See Freedom Commc’ns, Inc. v. Coronado, 372 S.W.3d 621, 623 (Tex.
2012). When a party appeals a void order, we must declare the order void and
dismiss the appeal for want of jurisdiction. See State ex rel. Latty v. Owens, 907
S.W.2d 484, 486 (Tex. 1995).
Because appellant did not file a motion for new trial or motion to modify
within thirty days of the signing of the default judgment, the trial court’s plenary
power over the judgment expired on December 12, 2020. See TEX. RS. CIV. P.
329b(a) (motion for new trial due within thirty days after judgment is signed);
329b(d) (trial court retains plenary power over judgment for thirty days after
judgment is signed). Consequently, the associate judge’s and the appealed order of
the trial court were signed after the trial court’s plenary power expired. Although
appellant filed a letter brief, he addressed the merits of the appeal instead of the
jurisdictional issue – our jurisdiction over an order signed after the expiration of
the trial court’s plenary power.
For reasons stated above, the appealed order is void. Accordingly, we
vacate the trial court’s October 26, 2022 order and dismiss the appeal for want of
jurisdiction. See Latty, 907 S.W.2d at 486.
/Robert D. Burns, III/
ROBERT D. BURNS, III
221162F.P05 CHIEF JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF O.E.S., A On Appeal from the 256th Judicial
CHILD District Court, Dallas County, Texas
Trial Court Cause No. DF-20-13200.
No. 05-22-01162-CV Opinion delivered by Chief Justice
Burns. Justices Pedersen, III and
Goldstein participating.
In accordance with this Court’s opinion of this date, we VACATE the trial
court’s October 26, 2022 order and DISMISS the appeal for want of jurisdiction.
We ORDER appellees, The State of Texas and Sahira Gelanie Taveras
Santana, recover their costs of this appeal from appellant, Orlando David Santana.
Judgment entered April 11, 2023
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