

NO. 12-11-00067-CR
 
IN THE COURT OF APPEALS          
 
TWELFTH COURT OF APPEALS DISTRICT
 
TYLER, TEXAS
IN RE:                                                            §                      
 
BILLY G. COLVIN,                                      §                      ORIGINAL
PROCEEDING
 
RELATOR                                                     §                      



MEMORANDUM
OPINION
PER
CURIAM
            Billy
G. Colvin has petitioned this court for mandamus relief.  The appendix attached
to his mandamus petition shows that following the dismissal of his pro se in
forma pauperis petition for judicial review, Colvin filed a document
entitled “Pro Se Motion For Leave To Amend Original Petition For Judicial
Review Of An Adverse Decision Of Destruction Of Property Pursuant To Tex. Govt.
Code § 500.002(d).”  The trial court declined to rule on the motion, and
Colvin asserts here that the trial court’s refusal to rule violates a
ministerial duty.  We deny the petition.
            Mandamus
issues only when the mandamus record establishes (1) a clear abuse of
discretion or the violation of a duty imposed by law and (2) the absence of a
clear and adequate remedy at law.  See In re Columbia Med. Ctr. of Las
Colinas, Subsidiary, L.P., 290 S.W.3d 204, 207 (Tex. 2009) (orig.
proceeding).  Here, the trial court dismissed the underlying proceeding for
Colvin’s failure to file certain documents required by Texas Civil Practice and
Remedies Code, chapter 14.  After receiving the trial court’s order of
dismissal and its findings that he had not filed the required documents, Colvin
sought to cure the omission by filing a motion for leave to amend his original
petition.  He was ultimately notified by the district clerk that the trial
court took no action on the motion.  The docket sheet includes a notation that
“[the] case was dismissed on 1–10–11, no action taken on motion for leave. . .
.”  
            At
least three courts have held, and we agree, that a trial court “does not have a
duty to rule on free–floating motions unrelated to currently pending
actions.”    See In re Miller, No. 08–10–00296–CR, 2010 WL
4526270, at *1 (Tex. App.–El Paso Nov. 10, 2010, orig. proceeding) (mem.
op.); In re Boshears, No. 09–10–00187–CV, 2010 WL 2347087, at *1
(Tex. App.–Beaumont June 10, 2010, orig. proceeding) (mem. op.); In re
Cash, No. 06–04–00045–CV, 2004 WL 769473, at *1 (Tex. App.–Texarkana
Apr. 13, 2004, orig. proceeding) (mem. op.).  This is because the trial court
“has no jurisdiction to rule on a motion when it has no plenary jurisdiction
coming from an associated case.”  In re Cash, 2004 WL 769473, at
*1.   In this case, the underlying proceeding was dismissed by written order on
January 10, 2011.  Colvin did not file a motion for new trial or any other
motion that would extend the trial court’s plenary power. Consequently, the
trial court’s plenary power expired on February 9, 2011.   See Tex. R. Civ. P. 329b(e).  Colvin’s
motion was filed on February 14, 2011, which was after the trial court’s
plenary power expired.  Therefore, the trial court had no jurisdiction to rule
on the motion and did not violate a ministerial duty by declining to do so.[1]
            Because
Colvin has not shown that the trial court violated a ministerial duty, he cannot
show that he is entitled to mandamus relief.  Accordingly, Colvin’s petition
for writ of mandamus is denied.  All pending motions are
overruled as moot.
Opinion delivered April 20, 2011.
Panel consisted of
Worthen, C.J., Griffith, J., and Hoyle, J.
 
 
 
 
 
 
 
(DO
NOT PUBLISH)




            [1] We note further that the filing of an amended
petition following the dismissal of a case cannot vacate the order of dismissal
or reinstate the case upon the docket of the trial court.  United States
Fid. & Guar. Co. v. Beuhler, 597 S.W.2d 523, 524
(Tex. Civ. App.–Beaumont 1980, no writ).  When an action has been terminated,
either voluntarily or involuntarily by a formal order of dismissal, the case
cannot, in the absence of a valid order vacating and reinstating the previous
proceedings, be further prosecuted by filing an amended petition and attempting
to proceed thereon.  Id.
 


