                             Fourth Court of Appeals
                                    San Antonio, Texas
                                          January 7, 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 appears to this court that the December 15, 2014 order is void because it was signed
outside the trial court’s plenary power. As set out above, the trial court signed its original order
denying the habeas application on November 12, 2014. Accordingly, it appears that order
became final, and the trial court’s plenary power expired, thirty days later, i.e., on December 12,
2014. Thus, it appears the trial court lost jurisdiction over this matter on December 12, 2014.
The order withdrawing the November 12, 2014 order was signed December 15, 2014, seemingly
after the trial court lost jurisdiction. If the trial court lost jurisdiction on December 12, 2014, as
it appears, its order withdrawing the November 12, 2014 order and transferring the matter to the
magistrate court for review is void.

        Accordingly, we ORDER the trial court, appellant, and/or the State 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. We ORDER that any response to this order must be filed with this court on or
before January 19, 2015. If no adequate response is filed, this court will retain the appeal on
our docket as an appeal from the November 12, 2014 order, and all briefing should be directed to
that order. Appellant’s brief in the appeal from the November 12, 2014 order is currently due
January 20, 2014. We suggest appellant’s counsel filed a motion to extend time to file the brief
if necessary given the foregoing order.
       We order the clerk of this court to serve a copy of this order on the trial court, the
magistrate court, 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 7th day of January, 2015.



                                                  ___________________________________
                                                  Keith E. Hottle
                                                  Clerk of Court
