                                  IN THE
                          TENTH COURT OF APPEALS



                                 No. 10-10-00183-CV

                           IN RE J. ALLAN GODDARD


                                 Original Proceeding



                           MEMORANDUM OPINION


       In this original proceeding, Relator J. Allan Goddard seeks mandamus relief

because the respondent trial judge, in an order dated April 30, 2010, set aside a July 20,

2009 judgment, well beyond the expiration of the trial court’s plenary power. See TEX.

R. CIV. P. 329b(c, d).

               A trial court retains plenary power to grant a new trial or to vacate,
       modify, correct, or reform a judgment within thirty days after the
       judgment is signed. TEX. R. CIV. P. 329b(d); First Alief Bank v. White, 682
       S.W.2d 251, 252 (Tex. 1984). After the expiration of those thirty days, the
       trial court has no authority to set aside a judgment except by bill of review
       as provided by law. TEX. R. CIV. P. 329b(d); Thursby v. Stovall, 647 S.W.2d
       953, 954 (Tex. 1983). During the time in which a court may vacate, set
       aside, modify or amend its previous order, such action must, to be
       effective, be memorialized by written order that is express and specific.
       McCormack v. Guillot, 597 S.W.2d 345, 346 (Tex. 1980) (citing as the correct
       rule, Poston Feed Mill Co. v. Leyva, 438 S.W.2d 366, 368 (Tex. Civ. App.—
        Houston [14th Dist.] 1969, writ dism’d w.o.j.)); In the Interest of Hamilton,
        975 S.W.2d 758, 761 (Tex. App.—Corpus Christi 1998, pet. denied). A trial
        judge’s oral pronouncement vacating a judgment with a docket entry
        commemorating the same cannot substitute for the written order required
        by Rule 329b. See Faulkner v. Culver, 851 S.W.2d 187, 188 (Tex. 1993) (citing
        Clark & Co. v. Giles, 639 S.W.2d 449, 450 (Tex. 1982)). Nor does a ruling in
        open court suffice to vacate a judgment if it is not reduced to writing
        within the statutory period. Ex Parte Olivares, 662 S.W.2d 594, 595 (Tex.
        1983). A court must speak through its written orders and we cannot
        presume an intent on the part of a court to vacate, set aside, modify or
        amend an order in the absence of an express, specific and written order.
        In the Interest of Hamilton, 975 S.W.2d at 761.

Tex. Prop. & Cas. Ins. Guar. Ass’n v. De Los Santos, 47 S.W.3d 584, 587 (Tex. App.—

Corpus Christi 2001, no pet.). We do not find an equitable exception to this applicable

law.

               Generally, Relators can obtain mandamus relief only upon showing
        that the court committed a clear abuse of discretion and that they have no
        adequate legal remedy. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992)
        (orig. proceeding). However, when a party establishes that the court
        rendered a void order, she is “entitled to mandamus relief without a
        showing that there is no adequate remedy by appeal.” In re Union Pac.
        Resources Co., 969 S.W.2d 427, 428 (Tex. 1998) (orig. proceeding).

In re Jeffries, 979 S.W.2d 429, 434 (Tex. App.—Waco 1998, orig. proceeding).

        “An order is void when a court has no power or jurisdiction to render it. The

writ of mandamus will not lie to correct a merely erroneous or voidable order of the

trial court, but will lie to correct one which the trial judge had no power to render.”

Urbish v. 127th Jud. Dist. Ct., 708 S.W.2d 429, 431 (Tex. 1986).

        We are constrained to find that the trial court had no power to set aside the

judgment, that the April 30, 2010 order is void, and that Goddard is entitled to

mandamus relief. We grant his petition and order Respondent to vacate his April 30,



In re Goddard                                                                           Page 2
2010 order setting aside the July 20, 2009 judgment. We are confident that Respondent

will comply with our ruling, so the writ will issue only if Respondent fails to advise this

Court in writing within fourteen days after the date of this opinion that he has vacated

the order.


                                                 REX D. DAVIS
                                                 Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Petition granted and writ conditionally issued
Opinion delivered and filed July 21, 2010
[OT06]




In re Goddard                                                                        Page 3
