                               Fourth Court of Appeals
                                       San Antonio, Texas

                                  MEMORANDUM OPINION

                                          No. 04-13-00114-CV

                                         IN RE Crystal LUCAS

                                    Original Mandamus Proceeding 1

Opinion by:      Karen Angelini, Justice

Sitting:         Karen Angelini, Justice
                 Marialyn Barnard, Justice
                 Patricia O. Alvarez, Justice

Delivered and Filed: April 3, 2013

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

           This original proceeding stems from an order, dated February 6, 2013, requiring the

parties to appear for a Court Ordered Progress Report. Relator Crystal Lucas alleges the trial

court’s order is void as a matter of law. Because the trial court’s order was made outside the

court’s plenary power, we conditionally grant the petition for writ of mandamus.

                                        FACTUAL BACKGROUND

           In December of 2012, in cause number 2012-PA-02899, the Texas Department of

Protective and Regulatory Services (TDPRS) brought suit against the parents of K.L. under

Chapter 262 of the Texas Family Code. An adversarial hearing was held before Associate Judge

Richard Garcia on December 17, 2012. On December 19, 2012, the trial court entered an order



1
  This proceeding arises out of Cause No. 2012-PA-02899, styled In the Interest of K.L., A Child, in the 225th
Judicial District Court, Bexar County, Texas, the Honorable Peter A. Sakai presiding.
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denying the Department’s request for temporary managing conservator of the subject child and

dismissing the suit without prejudice.

       On February 4, 2013, the Honorable Peter Sakai prepared a memo addressed to Associate

Judge Garcia, with copies to the court clerk and the Children’s Court Coordinator, ordering all

witnesses who may have information as to the death of this child to appear for a progress report.

On February 6, 2013, the trial court issued an order setting the progress report hearing for

February 19, 2013.

       On February 13, 2013, Lucas filed a petition for writ of mandamus and motion for

emergency relief asserting that because the trial court’s plenary power had expired, the trial court

no longer had jurisdiction over the case. This court granted the emergency relief, staying all

proceedings in Cause No. 2012-PA-02899 pending final resolution of the petition, and provided

an opportunity for the respondent or real party in interest to file a response no later than March 1,

2013. No response was filed.

                                      STANDARD OF REVIEW

       Mandamus is an extraordinary remedy that is available only in limited circumstances.

See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). A writ of mandamus

will issue to correct a clear abuse of discretion or the violation of a duty imposed by law when

there is no adequate remedy at law. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135

(Tex. 2004) (orig. proceeding). For example, a writ of mandamus will issue to correct an order

of the trial court that the court had no power to render and which is, therefore, void. See

Faulkner v. Culver, 851 S.W.2d 187, 188 (Tex. 1993) (orig. proceeding).

       Mandamus relief is appropriate when a trial court issues an order after its plenary power

has expired because the order is void. In re Brookshire Grocery Co., 250 S.W.3d 66, 68–69

(Tex. 2008) (orig. proceeding); In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig.
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proceeding). Specifically, when a trial court erroneously reinstates a case after its plenary power

has expired, there is no adequate remedy by appeal and mandamus is the appropriate remedy.

Estate of Howley v. Haberman, 878 S.W.2d 139, 140 (Tex. 1994) (orig. proceeding); S. Main

Bank v. Wittig, 909 S.W.2d 243, 244 (Tex. App.—Houston [14th Dist.] 1995, orig. proceeding).

Relief may be granted to set aside an order issued on the merits of a case after the trial court’s

plenary power expires. In re Daredia, 317 S.W.3d 247, 250 (Tex. 2010) (orig. proceeding).

                                         PLENARY POWER

       A trial court may reconsider and change its order at any time as long as it has plenary

power. Yaquinto v. Britt, 188 S.W.3d 819, 829 (Tex. App.—Fort Worth 2006, pet. denied).

Based on the limited record before us, it appears as if no timely motions were filed and no timely

requests were made to reinstate the matter on the court’s docket. Accordingly, Lucas contends

that pursuant to Texas Rule of Civil Procedure 329b the trial court lost jurisdiction over this

cause of action thirty days after the December 19, 2012 dismissal order was signed, and

therefore, the trial court could not set the matter for a hearing after the thirty days had expired.

See TEX. R. CIV. P. 329b.

       A trial court retains plenary jurisdiction over a case for thirty days after its judgment

becomes final. See TEX. R. CIV. P. 329b(d); Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10

S.W.3d 308, 311–12 (Tex. 2000). Because this order was signed after the trial court’s plenary

power expired, the order is void. See In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998) (granting

mandamus relief to set aside an order granting a motion for new trial filed after the trial court’s

plenary power had expired); see also In re Prudential, 148 S.W.3d at 136–137. Thus, based on

the record before this court and the applicable law, the trial court abused its discretion in setting

the matter for a court-ordered progress report.



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                                         CONCLUSION

       Having determined that Relator Crystal Lucas is entitled to relief, we conditionally grant

the petition for writ of mandamus. Accordingly, the trial court is ordered to vacate its February

6, 2013 order. Mandamus will issue only if the trial court fails to comply with this order within

fourteen days.


                                                    Karen Angelini, Justice




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