                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-12-00114-CV




             IN RE: ARTHUR CHANDLER




             Original Mandamus Proceeding




       Before Morriss, C.J., Carter and Moseley, JJ.
        Memorandum Opinion by Justice Moseley
                                MEMORANDUM OPINION
        Arthur Chandler, Jr., filed a petition for a writ of mandamus arguing that the trial court

acted without jurisdiction by entering an order which purported to grant a motion for new trial

after the trial court’s plenary power over the cause expired. In doing so, Chandler has requested

that we direct the trial court to vacate its order purporting to grant a new trial. We, conditionally,

grant the petition.

        Mandamus is an extreme remedy, and to be entitled to mandamus relief, a petitioner must

show that the trial court clearly abused its discretion and that the relator has no adequate remedy

by appeal. In re McAllen Med. Ctr., Inc., 275 S.W.3d 458 (Tex. 2008) (orig. proceeding).

        A child support review was instituted in the 102nd Judicial District Court of Bowie

County, Texas, by the Office of the Attorney General of Texas (AG), representing Vanshell

Bunn. As a result of a negotiating conference between Chandler and Bunn (the parent of Keilon

Jekore Chandler), an agreed order was signed as approved by Chandler and Bunn, with the

joinder of the AG. Because this was a Family Code Title IV-D matter, the approved child

support review order was signed on November 9, 2011, by an associate judge. No party having

requested a de novo hearing within seven days of the signing of the order by the associate judge,

the order became a final and appealable order no later than November 16, 2011. TEX. FAM.

CODE ANN. § 201.1042(b) (West 2008).

        On December 9, 2011 (less than thirty days after the order was signed), Bunn filed a

motion for new trial, alleging newly discovered evidence as grounds. No further action was


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taken in regard to the matter until March 9, 2012, when the trial court entered an order which

purported to grant Bunn’s motion for a new trial.

       Rule 329b(a) of the Texas Rules of Civil Procedure requires almost all motions for new

trial (including matters such as the pertinent one here) to be filed within thirty days of the date

that a judgment or other order is signed. TEX. R. CIV. P. 329b(a). In the event that there is no

ruling on the motion for new trial entered within seventy-five days from the date the judgment or

order was signed, it is overruled by operation of law. TEX. R. CIV. P. 329b(c). The timely filing

of a motion for new trial extends the trial court’s plenary power until thirty days after the motion

for new trial is overruled, either by affirmative order or by operation of law, whichever occurs

first. TEX. R. CIV. P. 329b(e). Under the circumstances of the instant case, the trial court did not

lose plenary jurisdiction until after the expiration of 105 days from the date the order was signed.

       Here, the trial court signed an order purporting to grant Bunn’s motion for new trial some

113 days after the signing of the child support review order, this being done after the trial court’s

plenary power had expired. TEX. R. CIV. P. 329b(c), (e). Accordingly, the trial court’s order

purporting to grant the motion for new trial is void because the trial court had lost plenary power

over the matter before entry of that order. When an order purporting to grant a new trial is void

because it was granted after the trial court’s plenary power expired, mandamus relief is available

because there is no adequate remedy by appeal and the entry of a void order is an abuse of

discretion.   In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding)

(per curiam); In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998) (orig. proceeding) (per curiam).



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       We, conditionally, grant the petition for writ of mandamus. The 102nd Judicial District

Court of Bowie County, Texas, is ordered to withdraw or vacate its March 9, 2012, order

granting the motion for new trial. The writ will issue if the trial court does not do so within

twenty days of the date of this opinion.




                                           Bailey C. Moseley
                                           Justice

Date Submitted:        January 9, 2013
Date Decided:          January 10, 2013




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