Granted and Opinion Filed July 29, 2019 

# S

In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-19-00721-CV IN RE KARRAZ DANSBY, Relator Original Proceeding from the 160th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-18-07364 

### MEMORANDUM OPINION Before Justices Whitehill, Partida-Kipness, and Pedersen, III Opinion by Justice Pedersen, III In this original proceeding, relator seeks relief from the tria l court’s May 16, 2019 reinstatement order, which relator asserts is void because it w as signed after the trial court lost plenary power. We requested that the real party in interest and respondent file their responses, if any, to the petition for writ of mandamus. Real party in intere st Rachel Williams-Harris filed a response, and relator filed a re ply. After reviewing the petiti on, the response, the reply, and the mandamus record, we conclude relator is entitled to the relief requested. We, therefore, grant this writ instanter. Background The trial court dismissed the underlying case for want of prose cution by written order on February 28, 2019. The real party in interest timely filed a mo tion to reinstate on March 15, 2019. The trial court denied the motion to reinstate by written order on April 2, 2019. The real party in–2– interest then filed a motion for reconsideration on April 4, 20 19. On May 16, 2019, th e trial judge signed an order granting the mo tion for reconsideration and rei nstating the case. In this original proceeding, relator contends the May 16 reinst atement order is void because, pursuant to Rule 165a(3), the trial court’s plenary po wer expired on May 2, 2019, thirty days after all timely-filed moti ons to reinstate were overruled by written and signed order or by operation of law. T EX
. R. C IV
. P. 165a(3). As such, the May 16 reinstatement order was signed when the court lacked plenary pow er to reinstate the case. Availability of Mandamus Review To obtain mandamus relief, a relator must show both that the tr ial court has clearly abused its discretion and that the rel ator has no adequate appellate r emedy. In re Prudential Ins. Co. of Am. , 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding); Walker v. Packer , 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). Mandamus is an available re medy to set aside a reinstatement order signed after the trial court’s plenary power expires. In re S. Mgmt. Servs., Inc. , No. 05-19- 00653-CV, 2019 WL 3244492, at *1 (Tex. App.—Dallas July 19, 201 9, orig. proceeding) (mem. op.); In re Gen. Motors Corp. , 296 S.W.3d 813, 830 (Tex. App.—Austin, 2009, orig. proceeding ); see also In re Sw. Bell Tel. Co. , 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding) (per curiam ) (holding that orders issued aft er expiration of trial court’s p lenary power are void and constitute abuse of discretion). Discussion Judicial action taken after the trial court’s plenary power exp ires is void. In re Sw. Bell , 35 S.W.3d at 605; In re Darling Homes , No. 05-05-00497-CV, 2005 WL 1390378, at *2 (Tex. App.— Dallas June 14, 2005, orig. proceeding) (mem. op.); In re T.G. , 68 S.W.3d 171, 177 (Tex. App.— Houston [lst Dist.] 2002, pet. den ied). Here, the real party in interest timely filed a motion to reinstate on March 15, 2019, and the trial c ourt denied the mot ion to reinstate by written order on–3– April 2, 2019. The trial court re tained plenary power for thirt y days thereafter. See T EX
. R. C IV
. P. 165a(3). As a matter of law, the trial court was divested of jurisdictio n on May 2, 2019. Accordingly, respondent’s order reinstating the case on May 16, 2019, is void because it was signed after the trial court lost plenary power. See e.g., In re Gen. Motors Corp. , 296 S.W.3d at 830. Real party in interest argues that her Rule 329b motion for rec onsideration, which was filed within the trial court’s plenary power on April 4, 2019, extend ed such plenary power beyond the thirty-day period set out by Rule 165a(3). She maintains that t he motion for reconsideration was the equivalent of a motion for new trial or a motion to modify, correct, or reform the judgment and, as such, extended the plenary period for thirty days after the trial court ruled on the motion for reconsideration. Compare T EX
. R. C IV
. P. 329b with T EX
. R. C IV
. P. 165a(3). Under this theory, the trial court’s reinstatement order was signed within the tri al court’s plenary period and is not void. We disagree. Rule 165a speci fically addresses reinstateme nt and controls over Rule 329b in cases involving dismissal for want of prosecution under Rule 16 5a. In re R.C.M. , No. 02-09-080- CV, 2010 WL 1267759, at *5 (Tex. App.—Fort Worth Apr. 1, 2010, orig. proceeding) (mem. op.); see also Nealy v. Home Indem. Co. , 770 S.W.2d 592, 594 (Tex. App.—Houston [14th Dist.] 1989, no writ) (rejecting plaintiff’s attempt to “stack” Rule 165a an d Rule 329b motions to extend period of trial court’s plenary jurisd iction). To hold otherwise “evis cerates the mandates of Rule 165a” and would “judicially write Rul e 165a out of the rules of civil procedure.” In re R.C.M ., 2010 WL 1267759, at *4. Here, the judgment at issue is the judgment dis missing the case for want of prosecution, not the order denying reinstatement. Real party in interest timely sought reinstatement, and the trial cour t denied reinstatement on Apri l 2, 2019. Thereafter, Rule 165a(3) provided the trial court plenary power for thirty days to rever se that decision and reinstate the case. The May 16, 2019 reinstatement order came too late and is void.–4– Conclusion We conclude the trial court’s reinstatement order is void becau se the court’s plenary power expired prior to the order’s e xecution. Accordingly, we grant r elator’s petition and order that a writ of mandamus issue instanter. We vacate the trial court’s May 16 , 2019 reinstatement order.

190721F.P05 /Bill Pedersen, III/ BILL PEDERSEN, III JUSTICE