                             Fourth Court of Appeals
                                    San Antonio, Texas
                                          January 12, 2015

                                       No. 04-14-00884-CR

                                  EX PARTE Thomas A. PENA,

                   From the 144th Judicial District Court, Bexar County, Texas
                              Trial Court No. 2010CR12630-W1
                         Honorable Lorina I. Rummel, Judge Presiding

                                          ORDER
        This matter concerns an accelerated appeal from an order denying appellant’s application
for writ of habeas corpus pursuant to article 11.072, which was signed on November 12, 2014.
On January 5, 2015, counsel for appellant filed an “Advisory to Court and Request for
Guidance.” In that document, counsel stated that after notice of appeal was filed, the trial court
rendered an order withdrawing its November 12, 2014 order denying the application. The trial
court also ordered the matter transferred to the magistrate court for review of appellant’s
application. According to appellant, the trial court took this action because of concerns
regarding a potential conflict of interest given the trial judge’s service as prosecutor in the same
trial court. The order withdrawing the prior order and transferring the matter to the magistrate
court was signed on December 15, 2014.

       It appeared to this court that the December 15, 2014 order is void because it was signed
outside the trial court’s plenary power. More specifically, the trial court signed its original order
denying the habeas application on November 12, 2014. Accordingly, that order became final,
and the trial court’s plenary power expired, thirty days later, i.e., on December 12, 2014. Thus, it
appeared the trial court lost jurisdiction over this matter on December 12, 2014. Thus, if the
foregoing is accurate, the December 15, 2014 order withdrawing the November 12, 2014 order
was void.

        We therefore ordered the parties to show cause why this court should not retain the
appeal on this court’s docket as an appeal from the November 12, 2014 order given the trial
court’s lack of jurisdiction. Both appellant and the State filed responses, admitting the trial
court’s plenary power expired, rendering the December 15, 2014 order withdrawing the
December 12, 2014 order and transferring the matter to the magistrate court void. However, the
parties agree, as do we, that in light of the trial court’s potential conflict of interest, this court
may abate this matter to the trial court to allow the court to reconsider its November 12, 2014
order and possibly render a new order given that the December 15, 2014 order is void. To this
end, appellant filed an unopposed motion to abate, as well as a motion to extend time to file
appellant’s brief.
        Based on the foregoing, we GRANT appellant’s unopposed motion to abate and
ORDER this matter abated and remanded to the trial court to permit the trial court to reconsider
its December 12, 2014 order in light of the potential conflict of interest. The trial court may
render any order it deems fit, including rendering an order withdrawing the November 12, 2014
order and transferring the matter to another court for reconsideration of appellant’s original
application for writ of habeas corpus. We further ORDER that the parties advise this court of
any new order rendered by the trial court, and we ORDER the district clerk, in the event the trial
court renders a new order, to prepare a supplemental clerk’s record containing any such order
and file it in this court within fifteen days after the date of any such order.

        If the trial court renders a new order and transfers the matter to another court for
reconsideration of the application, any pleadings, findings, or orders generated as a result of such
transfer shall be included in a second supplemental clerk’s record and filed in this court in a
timely manner. We ORDER appellant’s counsel to advise this court of any such pleadings,
findings, or orders and the date of same.

       Appellant’s brief is currently due January 20, 2015, but appellant filed a motion to extend
time to file his brief. Given the foregoing, that motion is DENIED AS MOOT. Per our order,
this matter is currently abated and all appellate deadlines are therefore suspended until further
order of this court.

       We order the clerk of this court to serve a copy of this order on the trial court, the
magistrate court, this district clerk, and all counsel.



                                                     _________________________________
                                                     Marialyn Barnard, Justice



       IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 12th day of January, 2015.



                                                     ___________________________________
                                                     Keith E. Hottle
                                                     Clerk of Court
