EX PARTE: Sean Leyendecker v. the State of Texas

Dismissed and Opinion Filed April 27, 2023.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-01369-CR
EX PARTE SEAN LEYENDECKER
On Appeal from the 219th Judicial District Court
Collin County, Texas
Trial Court Cause No. 219-03832-2022
MEMORANDUM OPINION
Before Justices Partida-Kipness, Nowell, and Kennedy
Opinion by Justice Partida-Kipness
Before the Court is the State’s motion to dismiss the appeal for want of
jurisdiction and appellant’s response. Concluding we lack jurisdiction, we grant the
State’s motion and dismiss the appeal.
BACKGROUND
On July 7, 2022, appellant was arrested for sexual assault of a child. His bond
was initially set at $100,000. On July 22, 2022, appellant filed an application for writ
of habeas corpus seeking a bond reduction. The district clerk assigned the habeas
proceeding cause number 219-03832-2022. On August 4, 2022, the trial court signed
an order granting habeas relief, reducing appellant’s bond to $20,000, and modifying
the standard bond conditions to include restrictions on appellant’s internet use and
require that appellant wear an ankle monitor. Appellant did not appeal the trial
court’s order.
On December 2, 2022, appellant filed a motion to amend the terms and
conditions of his bond (the December 2 motion). He filed the December 2 motion in
cause number 219-03832-2022, the prior habeas proceeding. The motion did not
assert appellant was restrained illegally and did not indicate he was seeking habeas
relief.
The trial court conducted a hearing on the December 2 motion and described
the hearing as “a request to change conditions but not the bond amount. . . .” No one
mentioned habeas relief during the hearing. The trial court modified the conditions
of appellant’s bond to allow him some limited use of the internet but did not remove
the requirement that he wear an ankle monitor. The trial court issued its ruling in a
December 16, 2022 order titled “Amended Bond Conditions” and styled as being
issued in the habeas proceeding of Ex parte Sean Leyendecker, cause number 219-
03832-2022. Appellant then filed a notice of appeal seeking to appeal the trial court’s
December 16, 2022 “order denying pretrial habeas corpus relief.”
THE MOTION TO DISMISS AND RESPONSE
On January 11, 2023, the State filed a motion to dismiss this appeal. The State
maintains the trial court lacked subject matter jurisdiction to entertain the
December 2 motion because appellant filed that motion in the habeas proceeding
(i.e., cause number 219-03832-2022) after the trial court lost plenary jurisdiction
–2–
over that proceeding. The State concludes the resulting order is a legal nullity that
cannot trigger appellate jurisdiction.
Appellant responded to the State’s motion on January 30, 2023. In his
response, appellant urges this Court to conclude the trial court retained jurisdiction
to consider the December 2 motion after the court’s plenary power expired. He
compares this case to situations in which statutes give trial courts the jurisdiction to
consider matters after their plenary power expires, such as granting shock probation,
considering post-conviction habeas applications filed under article 11.072, and
ruling on post-conviction DNA testing. He contends a similar grant of authority must
be read into chapter seventeen of the code of criminal procedure and more
specifically into article 17.09, section one, which provides trial courts with
continuing jurisdiction over pretrial bond matters. See TEX. CODE CRIM. PROC. art.
17.09, §1. Appellant maintains article 17.09 prevents “disorganized chaos” and
invokes in the trial court continuing jurisdiction to consider bond modifications.
According to appellant, not allowing the trial court to exercise continuing
jurisdiction requires a defendant to file repeated habeas applications to adjust his
bond conditions, each of which might land in different courts. Appellant insists the
same difficult circumstances would exist regarding bond revocations under article
17.40(b).
–3–
ANALYSIS
A pretrial habeas proceeding is a separate criminal action from the underlying
trial proceedings and an order ruling on a pretrial habeas application is final and
appealable. Greenwell v. Ct. of App. For Thirteenth Jud. Dist., 159 S.W.3d 645, 650
(Tex. Crim. App. 2005). A defendant desiring to appeal the denial of habeas relief
must file a notice of appeal within thirty days of the entry of the final order. See TEX.
R. APP. P. 26.2(a)(1); Ex parte Matthews, 452 S.W.3d 8, 10 (Tex. App.—San
Antonio 2014, no pet.). Unless the defendant files a timely post-judgment motion,
the trial court’s plenary power over the cause generally expires thirty days after the
final order is issued. See Matthews, 452 S.W.3d at 10. After its plenary power over
a cause expires, the trial court generally lacks the authority to take any action in the
cause. Id. at 13 (first citing State v. Garza, 442 S.W.3d 585, 588 n. 3 (Tex. App.—
San Antonio 2014, no pet.), next citing Florance v. State, 352 S.W.3d 867, 874 n. 5
(Tex. App.—Dallas 2011, no pet.), and then citing In re State ex rel. Sistrunk, 142
S.W.3d at 503)). Indeed, “any action taken by a trial court after it loses plenary power
is void.” Florance, 352 S.W.3d at 874 (first citing In re Dickason, 987 S.W.2d 570,
571 (Tex.1998) (per curiam) (original proceeding) (order granting new trial after
expiration of plenary power is void for want of jurisdiction) then citing Malone v.
Hampton, 182 S.W.3d 465, 468 (Tex. App.—Dallas 2006, no pet.) (“Judicial action
taken after the expiration of the court’s jurisdiction is a nullity, and any orders signed
outside the court’s plenary jurisdiction are void.”)).
–4–
Here, the trial court entered a final order in the habeas proceeding on August
4, 2022. Appellant did not file a post-judgment motion concerning that ruling and
did not appeal that ruling. The trial court’s plenary power over that cause, therefore,
expired on Tuesday, September 6, 2022, following the Labor Day holiday. See
Matthews, 452 S.W.3d at 13. The trial court lacked authority to take any action in
cause number 219-03832-2022 after September 6, 2022, when its plenary power
expired. See id.; see also Florance, 352 S.W.3d at 874. Accordingly, the trial court
lacked the subject matter jurisdiction to entertain the December 2 motion, and the
December 16, 2022 order was a legal nullity in the habeas corpus action. Because
the trial court’s plenary power in the habeas corpus action expired before it issued
the December 16, 2022 order, that order could not, and did not, extend or reset the
appellate timetable. Appellant’s notice of appeal was, therefore, not timely filed, and
this Court’s appellate jurisdiction has not been invoked.
Appellant insists Article 17.09 extended the trial court’s plenary power
because “the judge who sets bail which is posted controls the case to include
modifications to the bond by motion or, in certain instances, the bond is held
insufficient.” We disagree.
Jurisdiction “is conferred by constitution or by statute.” State v. Brent, 634
S.W.3d 911, 916 (Tex. Crim. App. 2021) (quoting State v. Patrick, 86 S.W.3d 592,
596 (Tex. Crim. App. 2002) (plurality op.)). “Plenary power does not create
jurisdiction where none exists under the law; instead, it is a phrase used to describe
–5–
‘a court’s full and absolute power over the subject matter and the parties in a case,’
which only exists as defined by statute or rule.” Ex parte Donaldson, 86 S.W.3d 231,
234 (Tex. Crim. App. 2002) (Keasler, J., concurring) (footnote omitted) (quoting
plenary power, BLACK’S LAW DICTIONARY 689 (7th ed. abridged 2000)).
Article 17.09 does not extend a court’s plenary power over a habeas
proceeding resulting in a final order that is not appealed. Rather, it establishes the
authority of any court in which a cause is pending to review a bond and contemplates
that a cause may be assigned to different trial courts during its pendency. Article
17.09, section 1 provides that once a defendant has posted bond, that bond is valid
and binding for the duration of the case before the trial court, any transferee court,
and for all subsequent proceedings relative to the charge. See TEX. CODE CRIM.
PROC. art. 17.09, § 1. Thus, the bond and the requirement that the defendant appear
for trial proceedings follow the defendant’s case regardless of the court to which the
case may be assigned. See id. Once a criminal defendant has posted a bond, the
defendant may not be required to post another bond in the same criminal action. Id.
at art. 17.09, § 2; Ex parte Gomez, 624 S.W.3d 573, 575 (Tex. Crim. App. 2021).
However, the trial court may require the bond be adjusted if the trial court “in whose
court such action is pending” determines the bond is defective, excessive, or
insufficient, has unacceptable sureties, or for other good and sufficient cause. Id. at
art. 17.09, § 3; Gomez, 624 S.W.3d at 575–76. We decline to imply an extended
–6–
plenary period for bond reductions sought under Article 17.09 or bond revocations
under Article 17.40.
This conclusion is consistent with the plain terms of Article 17.09. The statute
acknowledges that a cause may be transferred to different trial courts during its
pendency and any court in which the cause is “pending” may review the bond. TEX.
CODE CRIM. PROC. art. 17.09, § 3. But a cause is no longer pending after the trial
court’s plenary power has expired. Kubovy v. Cypress-Fairbanks Indep. Sch. Dist.,
972 S.W.2d 130, 132 (Tex. App.—Houston [14th Dist.] 1998, no pet.) (“A cause is
considered to be pending in a trial court even after a final judgment is entered so
long as the trial court retains its plenary power to vacate or modify the judgment or
to grant a motion for new trial under Rule 329b of the Texas Rules of Civil
Procedure.”); see also Schwartz v. Jefferson, 520 S.W.2d 881, 885–86 (Tex. 1975)
(holding that a suit is no longer “pending” after it has proceeded to a final judgment
from which no appeal was perfected); TEX. R. CIV. P. 329b(e). Here, the trial court’s
plenary power over cause number 219-03832-2022 expired on September 6, 2022,
and the trial court lacked authority to take any action in that cause after September
6, 2022. See Matthews, 452 S.W.3d at 13; see also Florance, 352 S.W.3d at 874.
Article 17.09 did not extend the trial court’s plenary power in the habeas proceeding.
This case, therefore, must be dismissed.
–7–
CONCLUSION
Because the trial court’s plenary power in the habeas corpus action expired
before it issued the December 16, 2022 order, that order could not, and did not,
extend or reset the appellate timetable. Appellant’s notice of appeal was, therefore,
not timely filed, and this Court’s appellate jurisdiction has not been invoked.
Accordingly, we grant the State’s motion to dismiss and dismiss this case for want
of jurisdiction.
/Robbie Partida-Kipness/
ROBBIE PARTIDA-KIPNESS
JUSTICE
Kennedy, J., concurring.
Do Not Publish
TEX. R. APP. P. 47.2(b)
221369F.U05
–8–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
EX PARTE SEAN LEYENDECKER On Appeal from the 219th Judicial
District Court, Collin County, Texas
No. 05-22-01369-CR Trial Court Cause No. 219-03832-
2022.
Opinion delivered by Justice Partida-
Kipness. Justices Nowell and
Kennedy participating.
Based on the Court’s opinion of this date, we GRANT the State’s motion to
dismiss and DISMISS the appeal for want of jurisdiction.
Judgment entered this 27th day of April, 2023.
–9–