Petition for Writ of Mandamus Denied and Memorandum Opinion filed February 

16, 2012.

In The

Fourteenth Court of Appeals

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NO. 14-12-00092-CV

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IN RE JOHN WILSON, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

County Court at Law No. 3

Fort Bend County, Texas

Trial Court Cause No. 04-CPR-018318

M E M O R A N D U M O P I N I O N

On January 31, 2011, relator John Wilson filed a petition for writ of mandamus in 

this court. See Tex. Gov’t Code § 22.221; see also Tex. R. App. P. 52. Relator

complains that respondent, the Honorable Susan G. Lowery, presiding judge of County

Court at Law No. 3 of Fort Bend County, is acting beyond the court’s plenary power over a 

judgment signed April 26, 2005 in the underlying probate case. Relator asks that we order 

the trial court to refrain from modifying or vacating the 2005 judgment in the underlying

case, enforce the judgment, and dismiss an application to declare heirship filed by another 

purported heir. 
2

The underlying case concerns the estate of Odean Jones, who has been missing 

since 2000, and was presumed to be dead. Odean’s wife, Renita, died in 2002. Odean 

and Renita had no children. Relator is an administrator of Renita’s estate, and he applied 

to probate Odean’s 1996 will on March 25, 2004. Three of Odean’s siblings or 

half-siblings intervened in the case. Shortly before trial, the parties reached an agreement, 

and the trial court signed an agreed judgment on April 26, 2005.

The 2005 judgment reflects the parties’ agreement that the date of Odean’s death 

would be deemed to be January 5, 2010, unless Odean entered an appearance in the action 

before December 4, 2009. The will would then be admitted to probate on January 5, 2010, 

and the previously appointed receiver, in lieu of an executor under the will, would make 

distributions of the estate. The first distribution was January 5, 2010, and distributions 

were to continue monthly until July 22, 2011. The receiver, guardian ad litem, and 

attorney ad litem were to submit fee requests, and after the amounts to be paid were 

determined, the receiver was to make a final distribution. The 2005 judgment expressly 

states:

This Court shall retain jurisdiction over this case to resolve any issues that might 

arise and to determine the award of any fees or expenses to the Receiver, 

Kornblit [the guardian ad litem] and/or Tate [the attorney ad litem]. This Court 

shall retain jurisdiction until the Court enters a final order that discharges the 

Receiver, Kornblit, and Tate and closes this case. 

A later supplemental order required the receiver to file a final inventory by September 15, 

2011. The supplement again stated, ―This Court retains jurisdiction — as the Judgment 

provides — to resolve any issues that may arise before the closing of this case.‖ Odean 

never made an appearance in the case or in any way demonstrated that he was not deceased. 

The final distribution of the estate has not been made. No final order discharging the 

receiver or otherwise closing the estate has been signed.

In March of 2010, another of Odean’s half-siblings who was not a party to the 

agreed judgment filed an application to declare heirship of Odean’s estate, alleging that 
3

Odean died intestate because his will had left his entire estate to his wife, with no residual 

beneficiary, and his wife predeceased him in 2002. Relator filed a motion to require the 

receiver to make the final distribution and to dismiss the heirship proceeding. The trial 

court signed a written order denying relator’s motion on January 27, 2012, and this 

proceeding followed.

Relator argues that he is entitled to mandamus relief because the trial court is acting 

to modify the final judgment entered April 26, 2005, without plenary power. A trial court 

has plenary power for thirty days after the judgment is signed unless a timely 

post-judgment motion is filed. See Tex. R. Civ. P. 329b. No such motion was filed in 

this case. A trial court’s order signed after the expiration of plenary power is void. See 

State ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995). 

Mandamus is an extraordinary remedy that will issue only if (1) the trial court 

clearly abused its discretion and (2) the party requesting mandamus relief has no adequate 

remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004). 

A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to 

amount to a clear and prejudicial error of law, or if it clearly fails to analyze or apply the 

law correctly. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005). 

When reviewing the trial court’s decision for an abuse of discretion, we may not substitute 

our judgment for that of the trial court with respect to the resolution of factual issues or 

matters committed to the trial court’s discretion. See Walker v. Packer, 827 S.W.2d 833, 

839-40 (Tex. 1992).

Mandamus relief is proper when a trial court issues an order after the expiration of 

its plenary power. In re Brookshire Grocery Co., 250 S.W.3d 66, 68 (Tex. 2008). A 

relator who demonstrates that the order or judgment challenged is void need not 

demonstrate that remedy by appeal is inadequate. In re Southwestern Bell Tel. Co., 35 

S.W.3d 602, 605 (Tex. 2000). 
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To be considered a final order in a probate case, in addition to adjudicating a 

―substantial right,‖ an order must ―dispose of all issues in the phase of the proceeding for 

which it was brought.‖ Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995). The 

judgment in this case expressly recites that the trial court retains plenary jurisdiction to 

consider and resolve other ―issues.‖ Thus, the 2005 judgment did not dispose of all issues 

in the proceeding, but merely ―set the stage for the resolution‖ of the proceeding; therefore, 

the order is interlocutory. See DeAyala v. Mackie, 193 S.W.3d 575, 579 (Tex. 2006). An 

order that specifies additional actions to be accomplished before closing an estate is not a 

final order. See Boseman v. Kornblit, 232 S.W.3d 261, 264 (Tex. App.—Houston [1st 

Dist.] 2007, no pet.) (citing section 405 of the Probate Code, which specifies the steps to be 

taken in the final settlement of an estate). The trial court retains continuing control over 

interlocutory orders and has the power to modify or set those orders aside. Fruehauf 

Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex. 1993).

We conclude that the trial court retains plenary jurisdiction over the April 26, 2005, 

judgment in this case. Accordingly, we deny relator’s petition for writ of mandamus.

PER CURIAM

Panel consists of Chief Justice Hedges and Justices Jamison and McCally.