
Opinion issued October 31, 2006











     





In The
Court of Appeals
For The
First District of Texas




NO. 01-04-01157-CV




METROPOLITAN TRANSIT AUTHORITY, Appellant

V.

EDWARD JACKSON, Appellee




On Appeal from the 234th District Court
Harris County, Texas
Trial Court Cause No. 2002-43065







NO. 01-04-01128-CV




IN RE METROPOLITAN TRANSIT AUTHORITY, Relator




Original Proceeding on Petition for Writ of Mandamus




CORRECTED OPINION

          We withdraw our opinion of August 24, 2006, and issue this opinion in its
stead.  Our judgment of the same date, as well as Justice Jennings’ concurrence,
remains unchanged. 
          In this appeal
, we must decide what effect, if any, the rendition of a void
judgment has upon a trial court’s plenary power.  More specifically, the question we
decide is this:  After rendering a void judgment, does the trial court retain plenary
power even after the time for filing an appeal from the void judgment has passed? 
We hold that a void judgment is a legal nullity, and the trial court retains plenary
power to dispose of the case by rendering a valid final judgment.  Accordingly, we
affirm the judgment of the trial court.
BACKGROUND
The Underlying Lawsuit
          In July 2002, Edward Jackson sued Metropolitan Transit Authority (“Metro”)
to appeal an adverse ruling against him by the Texas Workers’s Compensation
Commission Appeals Panel (“the Appeals Panel”).  The Appeals Panel had
determined that Jackson was not entitled to supplemental income benefits for quarters
10, 11, 12, 13, and 14.
          Metro timely answered Jackson’s suit, which was later dismissed for want of
prosecution in January 2003.  Jackson filed a motion to reinstate, and the case was
tried to a jury on May 4, 2004.  The jury found that Jackson had made a good faith
effort to look for work in quarters 10, 11, 12, 13, and 14.
The July Judgment
          After post-verdict negotiations regarding the amount of attorney’s fees, the
parties agreed to a judgment awarding Jackson supplemental benefits and attorney’s
fees.  On July 16, 2004, the trial court signed a judgment reflecting the parties’
agreement.
No Notice to Executive Director of the Workers’ Compensation Commission
          Section 410.258(f) of the Texas Labor Code provides that “A judgment entered
or settlement approved without complying with the requirements of this section is
void.”  Tex. Lab. Code Ann. § 410.258(f) (Vernon 2006).  Jackson did not send
prior notice of the July 16, 2004 judgment to the executive director of the Texas
Workers’ Compensation Commission, as required by section 410.258(f).  But,
Jackson sent the required notice to the executive director on August 18, 2004.
 
The October Judgment
          On September 21, 2004, 67 days after the July judgment was signed, Jackson
filed a “Motion by Submission for Judgment Nunc Pro Tunc.”  In the motion, Jackson 
pointed out that July judgment was signed before submitting it to the executive
director and requested that the trial judge sign a new judgment after the executive
director had been given the statutorily-required time to review the proposed
judgment.  Thereafter, on October 4, 2004, the trial court signed a second judgment
identical to the July judgment.
LAW AND ANALYSIS
          Metro filed this appeal from the October judgment, contending that the October
judgment is void because the trial court’s plenary power expired 30 days after the July
judgment was signed.  Jackson responds that even if the July judgment is void, the
October judgment is nonetheless valid because, after rendition of a void judgment,
the trial court has continuing jurisdiction until a valid judgment is rendered.  We
agree with Jackson.
The July Judgment is Statutorily Void
          The parties agree that the executive director of the Workers’ Compensation
Commission was not notified of the proposed judgment or settlement before the July
judgment was signed.  Section 410.258 of the Labor Code provides:
(a) The party who initiated a proceeding [for judicial review of the
Appeals Panel’s decision] under this subchapter or Subchapter G must
file any proposed judgment or settlement made by the parties to the
proceeding, including a proposed default judgment, with the division not
later than the 30th day before the date on which the court is scheduled
to enter the judgment or approve the settlement.  The proposed judgment
or settlement must be mailed to the division by certified mail, return
receipt requested.

          . . . .
 
(f) A judgment entered or settlement approved without complying with
the requirements of this section is void.

Tex. Lab. Code Ann. § 410.258(a), (f) (Vernon 2006).

          Both parties concede that there was no compliance with section 410.258 before
the trial court rendered the July judgment.  Compliance with section 410.258 is both
mandatory and jurisdictional, and failure to give the required notice renders a
judgment void.  Ins. Co. of Pa. v. Martinez, 18 S.W.3d 844, 847 (Tex. App.—El Paso
2000, no pet.); see also Albertson’s Inc. v. Sinclair, 984 S.W.2d 958, 962 (Tex. 1999)
(“[S]ubsection 410.258(f) provides that a judgment entered or settlement approved
without complying with section 410.258's requirements is void.  That the Legislature
could have but did not similarly provide a consequence for noncompliance with
[another section] suggests that it chose not to do so.”).  
          We are aware that Texas courts are reluctant to define statutory prerequisites,
such as the notice requirement in section 410.258, as jurisdictional because doing so
means that “a judgment will never be considered final if the court lacked subject-matter jurisdiction.”  Dubai Petroleum Co. v. Kazi, 12 S.W3d 71, 76 (Tex. 2000). 
However, a statutory prerequisite that “defines, enlarges, [or] restricts the class of
causes the court may decide or the relief the court may award” is considered a
jurisdictional statutory requirements.  Sierra Club. v. Tex. Natural Res. Conservation 
Comm’n, 26 S.W.3d 684, 688 (Tex. App.—Austin 2000), aff’d, 70 S.W.3d 809 (Tex.
2002).  Jurisdictional statutory requirements include those matters that are
“traditionally and undoubtedly elements of subject-matter jurisdiction.”  Heart Hosp.
IV., L.P. v. King, 116 S.W.3d 831, 834 (Tex. App.—Austin 2003, pet. denied).
          In this case, the legislature clearly provided a consequence for the failure to
comply with section 410.258(f)—any judgment rendered before the statutorily-required notice is given is void.  Put simply, unless a party complies with section
410.258(f), the trial court has no power to award relief.
          Because the executive director of the Workers’ Compensation Commission was
not notified of the proposed judgment before it was signed, the July judgment is null
and void.
Effect of Void Judgment on Trial Court’s Plenary Power
          The issue we must next address is the effect, if any, the void July judgment had
on the trial court’s plenary power.  More specifically, the question is this:  Did the
trial court have the power to set aside the void July judgment and sign the October
judgment?  Metro argues that, even though the July judgment was void, it was
nonetheless final and appealable, and the trial court lost jurisdiction 30 days after it
was signed.  We disagree.
          A trial court may not set aside a judgment after the period of plenary power has
expired, unless (1) the court signed the judgment after plenary power over the parties
expired, as provided by Tex. R. Civ. P. 329b(f); or (2) the court did not have subject-matter jurisdiction when it signed the judgment.  Middleton v. Murff, 689 S.W.2d 212,
213 (Tex. 1985); Hesser v. Hesser, 842 S.W.2d 759, 762 (Tex. App.—Houston [ 1st
Dist.] 1993, writ denied).
          The trial court unquestionably had plenary power when it signed the July
judgment.  Therefore, the issue is whether the trial court had subject-matter
jurisdiction when it signed the July judgment.  If the trial court lacked subject-matter
jurisdiction to render the July judgment, it retained the plenary power to render the
October judgment.  See id.
          “Jurisdiction is the power to adjudicate, that is, to grant or deny relief.  Lack
of subject-matter jurisdiction is the absence of power to make any ruling at all.” 
Hesser, 842 S.W.2d at 764.  The test for subject-matter jurisdiction is whether the
court has the power to enter upon an inquiry and not whether its conclusions are
correct.  Diocese of Galveston-Houston v. Stone, 892 S.W.2d 169, 174 (Tex.
App.—Houston [14th Dist.] 1994, orig. proceeding).
          It was not mere error for the trial court to sign the July judgment; under the
provisions of section 410.258(f) of the Labor Code, the trial court was without the
power to do so.  The power to award relief is an essential component of subject-matter jurisdiction.  Sierra Club, 26 S.W.3d at 688.  Similarly, the failure to comply
with a jurisdictional statutory prerequisite, such as section 410.258(f), is a defect that
goes to the trial court’s subject-matter jurisdiction.  See Heart Hosp., 116 S.W.3d at
834; Sierra Club, 26 S.W.3d at 688.  As such, the trial court was without subject-matter jurisdiction to sign the July judgment, and it retained the plenary power to sign
the October judgment.
          We note that some “void” judgments must, nevertheless, be challenged by
appeal or bill of review.  See Deen v. Kirk, 508 S.W.2d 70, 72 (Tex. 1974) (holding
that default judgment that was allegedly void for lack of proper service must be
challenged either by timely appeal or bill of review );McEwen v. Harrison, 345
S.W.2d 706, 710 (1961) (same) (“[W]hen the time for filing a motion for new trial has
expired and relief may not be obtained by appeal, a proceeding in the nature of a bill
of review is the exclusive method of vacating a default judgment rendered in a case
in which the court had jurisdictional power to render it.” ).  However, a case that is
void for lack of subject-matter jurisdiction can never be considered final.  Dubai
Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000).  In fact, Kazi suggests that the
only cases that are truly “void” are those cases in which the court lacks subject-matter
jurisdiction.  “Because subject-matter jurisdiction is a power that exists by operation
of law only, and cannot be conferred upon any court by consent or waiver, a judgment
will never be considered final if the court lacked subject-matter jurisdiction.”  Id.
          We have already held that the July judgment in this case was void for want of
subject-matter jurisdiction.  As such, an appeal or bill of review is not the only
mechanism for setting such void judgment aside.  See Middleton, 689 S.W.2d at 213
(recognizing that if trial court lacks jurisdictional power, bill of review not required
to challenge void judgment).  In this case, Jackson challenged the void July judgment
by requesting the trial court to render a second judgment, which it did.  The question
is thus: Did the trial court have the power to render the July judgment after
discovering that its earlier July judgment was void because of a lack of subject-matter
jurisdiction?  We answer the question in the affirmative.
          A trial court has “not only the power but the duty to vacate the inadverent entry
of a void judgment at any time, either during the term or after the term,
 with or
without a motion therefore.”  Thomas v. Miller, 906 S.W.2d 260, 262 (Tex. App.—
Texarkana 1995, no writ) (quoting Bridgman v. Moore, 183 S.W.2d 705, 707 (Tex.
1944).  A trial court has no discretion to refuse to set aside a void judgment, but has
the duty to do so at any time that such matter is brought to its attention.  Id.  “A
judgment which is absolutely void is, in the language of some courts, mere waste
paper, and the court in which such judgment is rendered does not lose jurisdiction
over the subject-matter after the term of the court at which the judgment was entered
has expired.  There is an inherent continuing power in such court to set aside its void
judgment.”  Barton v. Montex Corp., 295 S.W. 950, 953 (Tex. Civ. App.—Austin
1927, writ dism’d) (citing Milam County v. Robertson, 47 Tex. 222, 1877 WL 8602
at *8 (1877).
          In Milam County, the supreme court discussed the effect of a void judgment on
the continuing jurisdiction of the trial court as follows:
When, however, the judgment is not merely erroneous, but an absolute
nullity, it can have no binding force or effect, either in the tribunal in
which it is rendered, or in any other in which it may be brought in
question.  And such void judgment, though supposed by the court, when
rendered, to be final, will neither, in law or fact, exhaust or put an end
to its jurisdiction or power over an action properly pending before it. 
Unquestionably, therefore, the court may, at least until such time has
elapsed as will warrant the presumption of a discontinuance or
abatement of the action, vacate its entry, and recall any process which
may have issued thereon, and proceed with the cause to its final and
proper termination.

Milam County, 1877 WL 8602 at *8.

          More recently, in State ex re. Latty v. Owens, 907 S.W.2d 484, 485 (Tex. 1995)
the trial court issued an order adopting a master’s report before granting the defendant
a hearing as required by section 54.012 of the Government Code.  The supreme court
held that the failure to hold the hearing rendered the judgment voidable, but not void. 
Because the judgment was voidable, but not void, and the defendant did not challenge
the voidable judgment by appeal, the judgment became final and an order
subsequently signed by the trial court was void because it was signed outside the
court’s plenary power.  Id.  As such, the previously-signed voidable judgment was the
final order in the case, which the defendant could challenge only by bill of review. 
Id. at 486.
          This case presents the exact opposite of Latty.  In Latty, the first judgment was
voidable, not void.  Therefore, the appellate timetables began to run at the time the
voidable judgment was rendered and the second judgment was void because it was
signed outside the trial court’s plenary power.  In this case, the July judgment is  was
statutorily void, not merely voidable.  As such, it is a legal nullity that did not deprive
the trial court of jurisdiction.
  Therefore, the trial court had plenary power to sign the
October judgment.
          In a nonpublished opinion, this Court also discussed the effect of a void
judgment on the trial court’s plenary power.  In the case of In re Aldine Independent
School District, No. 01-01-00317-CV, 2001 WL 995759 (Tex. App.—Houston [1st
Dist.] August 30, 2001, orig. proceeding) (not designated for publication), the relator
argued that the trial court retained plenary power to grant a motion for new trial
because the earlier 1995 judgment was void, and the trial court must vacate a void
judgment order at any time, even if plenary power has otherwise expired.  Id. at *2. 
This Court responded by stating that “[i]f the 1995 judgment were void, [the relator]
would be right, but that judgment was not void for the reasons she claims.”  Id.  As
we have already held, here, however, the July judgment in this case was, in fact, void. 
Therefore, under the reasoning of the Aldine case, the void judgment does not cause
the trial court’s plenary power to expire.CONCLUSION
          The first judgment signed in this case—the July judgment—was a legal nullity. 
It was statutorily void because there had been no compliance with section 410.258
of the Labor Code.  After being made aware of this deficiency, and after the notice
required by section 410.258 of the Government Code was given to the executive
director of the Workers’ Compensation Commission, the trial court rendered a second
judgment—the October judgment.  Because the July judgment was a legal nullity, the
trial court retained plenary power to render the October judgment. Accordingly, the
October judgment is not void.
 
 
 
          We overrule Metro’s sole issue on appeal.
          We affirm the judgment of October 4, 2004.
 
 
                                                             Sherry Radack
                                                             Chief Justice

Panel consists of Chief Justice Radack and Justices Jennings and Alcala.

Justice Jennings, concurring.
