                                Fourth Court of Appeals
                                        San Antonio, Texas

                                   MEMORANDUM OPINION
                                            No. 04-14-00047-CR

                                        IN RE Michael MCCRUM

                                      Original Mandamus Proceeding 1

Opinion by:      Catherine Stone, Chief Justice

Sitting:         Catherine Stone, Chief Justice
                 Marialyn Barnard, Justice
                 Rebeca C. Martinez, Justice

Delivered and Filed: February 26, 2014

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

           On January 17, 2014, relator Michael McCrum filed a petition for writ of mandamus

asserting the trial court lacked jurisdiction to issue an order to show cause after its plenary power

had expired. Because we conclude the order complained of was signed after the trial court lost

jurisdiction over the underlying criminal proceeding, we conditionally grant mandamus relief.

                                              BACKGROUND

           McCrum represented the defendant, Taylor Rosenbusch, in the underlying criminal case

filed in Bexar County, Texas in 2011. Rosenbusch pled guilty to a single count of intoxication

manslaughter in each of two separate cases and elected to have a jury assess punishment for each

offense. A consolidated jury trial on punishment only commenced in October 2013.


1
 This proceeding arises out of Cause Nos. 2011CR11074 and 2011CR11075, styled The State of Texas v. Taylor
Rosenbusch, pending in the 226th Judicial District Court, Bexar County, Texas, the Honorable Dick Alcala presiding.
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        Melanie Little, the defendant’s chemical dependency counselor, testified as a defense

witness on October 16. At the end of her testimony, Little was ordered to produce to the prosecutor

records she had used to refresh her recollection prior to testifying. After reviewing those records

overnight, the State attempted to recall Little the following afternoon, but she failed to appear in

court. Both sides rested and closed their cases. On October 18, the State asked to re-open its case

to allow Little, who was then present in court, to testify on recall. The court denied the State’s

request to re-open the evidence. The jury returned its verdict and the trial court sentenced

Rosenbusch on October 18, 2013, to twelve years’ confinement in each case with the terms to run

consecutively.

        Rosenbusch filed a motion for reconsideration and new trial on punishment only on

November 15, 2013. 2 On December 4, the State filed an “Advisory to the Court,” alleging that

McCrum had deliberately caused Little to absent herself from the court and evade the State’s

attempts to contact her prior to the close of evidence. The State asserted that McCrum’s conduct

constituted a violation of the Texas Disciplinary Rules of Professional Conduct, which the

prosecutor believed he had a duty to report. Attached as an exhibit to the Advisory was Little’s

sworn statement, dated October 18, 2013, regarding the circumstances and events surrounding the

two days following her testimony. The State did not request any relief from the trial court in its

Advisory, and no hearing was requested or set.

        On January 7, 2014, at the request of the trial judge, the State filed a Motion for Finding of

Contempt, seeking an evidentiary hearing and the imposition of sanctions against McCrum for his

conduct with respect to Little. That same day the trial court signed an Order to Show Cause setting

a hearing on the State’s contempt motion for January 17, 2014. On the date of the hearing, McCrum


2
 The trial court did not rule on the motion for new trial within seventy-five days of imposing Rosenbusch’s sentence.
Accordingly, the motion was deemed denied by operation of law on January 2, 2014. See TEX. R. APP. P. 21.8(a), (c).

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filed a motion to dismiss for lack of jurisdiction, which the trial court denied. McCrum initiated

this original proceeding asserting the trial court lacked any jurisdiction to entertain the State’s

motion for contempt or to sign an order to show cause after the expiration of plenary power.

                                           ANALYSIS

       Mandamus provides extraordinary relief and is available in a criminal case only if the act

sought to be compelled is ministerial rather than discretionary, and the party has no adequate

remedy by appeal. Dickens v. Court of Appeals for the Second Supreme Judicial Dist. of Tex., 727

S.W.2d 542, 548 (Tex. Crim. App. 1987) (en banc). Mandamus is proper where a trial court has

issued an order beyond its jurisdiction. In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000)

(orig. proceeding) (per curiam); State ex rel. Cobb v. Godfrey, 739 S.W.2d 47, 49 (Tex. Crim. App.

1987) (en banc) (issuing mandamus where district judge entered order outside of the period for

ruling on a party’s motion for new trial). Where the trial court has issued a void order, a relator

need not show he lacks an adequate remedy by appeal, and mandamus relief is appropriate. Sw.

Bell Tel. Co., 35 S.W.3d at 605 (citing In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998) (per

curiam)); see also Godfrey, 739 S.W.2d at 49; State ex rel. Thomas v. Banner, 724 S.W.2d 81, 83

(Tex. Crim. App. 1987) (en banc) (trial court has ministerial duty to vacate order entered without

authority).

       The trial court entered a judgment of conviction and sentenced Rosenbusch on October 18,

2013. Ordinarily, that judgment would become final at the expiration of thirty days. See TEX. R.

APP. P. 21.4, 26.2. In this instance, because Rosenbusch timely filed a motion for new trial within

that thirty day period, the trial court had seventy-five days from the date of sentencing to rule on

Rosenbusch’s motion for new trial. See TEX. R. APP. P. 21.8(a). When no written order was made

prior to the expiration of seventy-five days, the motion was deemed denied by operation of law.



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See TEX. R. APP. P. 21.8(c); Godfrey, 739 S.W.2d at 49. Accordingly, on January 2, 2014, the trial

court’s judgment of conviction became final and the trial court lost plenary jurisdiction.

       A trial court’s authority to consider a motion for sanctions is limited by the court’s period

of plenary jurisdiction. See Scott & White Mem’l Hosp. v. Schexnider, 940 S.W.2d 594, 596 (Tex.

1996) (per curiam). After plenary jurisdiction has expired, a trial court is without authority to

sanction counsel for pre-judgment conduct. Id.; see also In re Bennett, 960 S.W.2d 35, 38 (Tex.

1997) (orig. proceeding) (per curiam). Here, the State’s motion for finding of contempt asked the

court to sanction McCrum for conduct which allegedly occurred prior to the court’s judgment of

conviction. As evidenced by Melanie Little’s statement submitted with the State’s motion for

contempt, the State was aware of McCrum’s alleged conduct as early as October 18. The State did

not file its motion for contempt until January 7, five days after the trial court’s plenary power

expired.

       The State acknowledges that the trial court’s jurisdiction over the underlying case expired

on January 2, when the motion for new trial was overruled by operation of law, but contends the

trial court’s jurisdiction to entertain the motion for contempt derives from its inherent authority to

discipline attorneys. The State cites to a number of cases in support of its position which we find

to be inapposite. The court’s inherent power to discipline an attorney, which it may call upon in

the exercise of its jurisdiction, gives the court authority to find a person in contempt and impose

sanctions on its own motion in an appropriate case. Bennett, 960 S.W.2d at 40. However, “[a] trial

court’s invocation of its inherent powers does not confer jurisdiction where none exists in the first

instance.” In re Tex. Dep’t. of Family & Protective Servs., 415 S.W.3d 522, 529 (Tex. App.—

Houston [1st Dist.] 2013, orig. proceeding).

       There are limited circumstances in which a trial court may act long after a final judgment

has been signed, none of which exist in the present case. See, e.g., In re Long, 984 S.W.2d 623,
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625-26 (Tex. 1999) (orig. proceeding) (per curiam) (acknowledging trial court’s authority to

enforce its own injunction by contempt); Smith v. O’Neill, 813 S.W.2d 501, 502 (Tex. 1991) (orig.

proceeding) (per curiam) (discussing trial court’s jurisdiction to modify judgments granting

permanent injunctions upon a showing of changed conditions); Hutchings v. Biery, 723 S.W.2d

347, 349 (Tex. App.—San Antonio 1987, orig. proceeding) (acknowledging continuing

jurisdiction of Texas courts over proceedings affecting the parent-child relationship as provided

by statute). We find no case which stands for the proposition that a court’s inherent authority

confers jurisdiction to act once a trial court’s plenary power has expired.

         There is no dispute that the order to show cause was signed five days after the trial court

lost plenary jurisdiction in this case. Because we find no other basis for the trial court’s jurisdiction

to enter the order to show cause after the expiration of plenary jurisdiction, the order is void and

the district court had a ministerial duty to vacate it. Godfrey, 739 S.W.2d at 49; Banner, 724

S.W.2d at 83.

                                                  CONCLUSION

         The State’s motion for contempt was not filed until January 7, after the trial court lost

plenary jurisdiction. 3 The order to show cause and setting the State’s motion for hearing was

similarly signed after the trial court lost plenary jurisdiction. Because we find no other basis for

the trial court’s exercise of jurisdiction in this instance, we conclude the order to show cause is

void. Sw. Bell Tel. Co., 35 S.W.3d at 605. Because the order is void, the trial court had a ministerial


3
  In civil cases, a motion for sanctions may further extend the trial court’s plenary jurisdiction if it seeks to modify an
existing judgment. See TEX. R. CIV. P. 329b. “If a motion for new trial is timely filed by any party, the trial court,
regardless of whether an appeal has been perfected, has plenary power to grant a new trial or to vacate, modify, correct,
or reform the judgment until thirty days after all such timely-filed motions are overruled. . . .” TEX. R. CIV. P. 329b(e);
see also Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 312 (Tex. 2000). There is no similar provision
for criminal cases, and the Texas Court of Criminal Appeals has made it clear that Rule 329b does not apply to extend
the trial court’s jurisdiction in criminal proceedings beyond that provided by statute. See Ex parte Donaldson, 86
S.W.3d 231, 232-33 (Tex. Crim. App. 2002) (en banc) (per curiam). In addition, the motion for sanctions against
McCrum did not seek to modify the existing judgment of conviction.

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duty to vacate it and is without authority to conduct proceedings on the State’s motion for contempt

in the absence of jurisdiction. Accordingly, we conditionally grant mandamus relief. The writ will

issue only if the trial court fails to vacate the order to show cause as directed.


                                                   Catherine Stone, Chief Justice

DO NOT PUBLISH




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