NUMBERS 13-20-00494-CV & 13-20-00495-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG 

 

CLAYTON RICHTER, DOROTHY

RICHTER, AND JONATHAN RICHTER, Appellants,

v.

CITY OF WAELDER, TEXAS, Appellee.

 

On appeal from the 25th District Court 

of Gonzales County, Texas.

 

MEMORANDUM OPINION

Before Justices Longoria, Hinojosa, and Tijerina

Memorandum Opinion by Justice Hinojosa

Appellants and cross-appellees Clayton Richter, Dorothy Richter, and Jonathan 

Richter (the Richters) sued appellee and cross-appellant the City of Waelder (the City) 

for various causes of action after leaks in the City’s waterpipe caused multiple flooding 

incidents on the Richters’ property. The trial court granted the City’s plea to the jurisdiction 
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(original cause) and dismissed the Richters’ suit. The Richters later filed a petition for bill 

of review in a separate cause (bill of review cause) which the trial court granted, thereby 

vacating its earlier judgment. Subsequently, in the original cause, the trial court signed a 

second judgment granting the City’s plea to the jurisdiction. In this consolidated appeal,1

the Richters argue that the trial court erred in granting the City’s plea to the jurisdiction. 

In its cross-appeal, the City argues that the trial court erred in granting the Richters’ 

petition for bill of review. We vacate the trial court’s judgment in the original cause and 

dismiss both appeals.

I. JURISDICTION

As a threshold matter, we must determine our jurisdiction over these appeals. Our 

jurisdiction is constitutional and statutory in nature. See TEX. CONST. art. V, § 6; TEX.

GOV’T CODE ANN. § 22.220. We have jurisdiction to decide appeals from final judgments 

and from interlocutory orders as permitted by the Texas Legislature. Lehmann v. Har–

Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). We review de novo our jurisdiction over an 

appeal, and we may do so sua sponte when necessary. Nunu v. Risk, 567 S.W.3d 462, 

465 (Tex. App.—Houston [14th Dist.] 2019, pet. denied); In re Lindsay, 538 S.W.3d 759, 

761 (Tex. App.—El Paso 2017, no pet.). As we explain below, we lack jurisdiction over 

these appeals because the ultimate merits of this case were adjudicated in the wrong trial 

court proceeding. 

1 In appellate cause number 13-20-00494-CV, the Richters appeal the trial court’s reissued 

judgment in the original cause. Appellate cause number 13-20-00495-CV concerns the Richters’ appeal 

and the City’s cross-appeal from the bill of review cause. We have consolidated the appeals for the 

purposes of briefing and submission.
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“A bill of review is an equitable proceeding to set aside a judgment that is not void 

on the face of the record but is no longer appealable or subject to a motion for new trial.” 

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003); see TEX. R. CIV. P.

329b(f) (“On expiration of the time within which the trial court has plenary power, a 

judgment cannot be set aside by the trial court except by bill of review for sufficient 

cause[.]”). When a trial court grants a bill of review and sets aside a judgment in a prior 

case, the subsequent trial on the merits must occur in the bill of review proceeding, not in 

the underlying case in which the judgment is vacated. Alaimo v. U.S. Bank Tr. Nat’l Ass’n, 

551 S.W.3d 212, 216 (Tex. App.—Fort Worth 2017, no pet.); see Retzlaff v. MendietaMorales, 356 S.W.3d 676, 679 (Tex. App.—El Paso 2011, no pet.). 

Here, the trial court granted the Richters’ petition for bill of review, thereby vacating 

the judgment in the original cause so that the suit could be retried. See Alaimo, 551 

S.W.3d at 216; see also Crabtree v. Crabtree, 627 S.W.2d 486, 487 (Tex. App.—Corpus 

Christi–Edinburg 1981, no writ). However, instead of retrying the case in the bill of review 

cause, the trial court again granted the City’s plea to the jurisdiction in the original cause. 

This action created two jurisdictional problems: (1) the bill of review judgment does not 

fully adjudicate the Richters’ suit; and (2) the trial court signed the judgment in the original 

cause after its plenary power expired.

“The judgment in a bill of review proceeding is not final until the judgment: (1) 

denies any relief to the petitioner; or (2) grants the bill of review and sets aside the former 

judgment, insofar as it is attacked, and substitutes a new judgment which properly 

adjudicates the entire controversy.” Mungia v. Via Metro. Transit, 441 S.W.3d 542, 545–
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46 (Tex. App.—San Antonio 2014, pet. denied). An order granting a bill of review that 

sets aside a prior judgment without disposing of the case on the merits is interlocutory in 

nature and is not an appealable final judgment. Kiefer v. Touris, 197 S.W.3d 300, 302 

(Tex. 2006); Tesoro Petroleum v. Smith, 796 S.W.2d 705, 705 (Tex. 1990) (per curiam).

The trial court’s bill of review judgment fails to address the merits of the Richters’ 

claim. Therefore, it is not a final, appealable order. See Lehmann, 39 S.W.3d at 195. 

Further, there is no statute authorizing an appeal from this interlocutory order. 

Accordingly, we lack jurisdiction over the bill of review cause. See id.

Further, the trial court’s reissued judgment in the original cause is void. A judgment 

in a bill of review proceeding does not restore a trial court’s plenary power in the 

underlying cause. See Alaimo, 551 S.W.3d at 217. The trial court signed the reissued 

judgment granting the City’s plea to the jurisdiction on October 16, 2020, after its plenary 

power expired. Therefore, the order is void. See In re Dansby, 583 S.W.3d 838, 840 (Tex. 

App.—Dallas 2019, no pet.) (explaining that a judicial action taken after the trial court’s 

plenary power expires is void). We do not have jurisdiction to address the merits of 

appeals from a void order or judgment. Freedom Commc’ns, Inc. v. Coronado, 372 

S.W.3d 621, 623 (Tex. 2012). When a party attempts to appeal a void order, an appellate 

court must vacate the order and dismiss the appeal. Id.; see State ex rel. Latty v. Owens, 

907 S.W.2d 484, 486 (Tex. 1995) (per curiam). 

For the foregoing reasons, we hold that we lack jurisdiction over both appellate 

causes. See Risk, 567 S.W.3d at 465; In re Lindsay, 538 S.W.3d at 761. Our resolution 

of this appeal should not be construed as a final determination of the merits of the 
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Richters’ suit, which must still be decided in the bill of review cause.

II. CONCLUSION

We vacate the trial court’s October 16, 2020 order in appellate cause number 13-

20-00494-CV, and we dismiss the appeal. We further dismiss the appeal in appellate 

cause number 13-20-00495-CV.

LETICIA HINOJOSA

Justice

Delivered and filed on the

12th day of August, 2021.