Petition for Writ of Mandamus Conditionally Granted and Memorandum 

Opinion filed September 1, 2022.

In The

Fourteenth Court of Appeals

NO. 14-22-00246-CV

IN RE COMMUNITYBANK OF TEXAS, N.A., Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

270th District Court

Harris County, Texas

Trial Court Cause No. 2021-25394

MEMORANDUM OPINION

On April 5, 2022, relator CommunityBank of Texas, N.A. filed a petition for 

writ of mandamus in this court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. 

R. App. P. 52. In the petition, CommunityBank asks this court to compel the 

Honorable Dedra Davis, presiding judge of the 270th District Court of Harris

County, to vacate her March 22, 2022 order granting real party in interest’s the

motion for new trial as void. We conditionally grant the petition.
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BACKGROUND

CommunityBank sued John Brady Mitchell after Mitchell defaulted on a 

promissory note. Mitchell asserted a counterclaim for fraud against 

CommunityBank. On September 28, 2021, CommunityBank filed a traditional and 

no-evidence motion for summary judgment on the note and its claim for attorney’s 

fees and on Mitchell’s counterclaim for fraud and affirmative defenses. 

CommunityBank noticed a hearing on its motion for summary judgment for 

November 2, 2021. 

Mitchell did not respond to the motion for summary judgment. On November 

2, 2021, the trial court signed the order granting the motion for summary judgment 

and for final judgment. The trial court noted “the lack of a response by Mitchell” 

stated that “[t]his judgment finally disposes of all parties and all claims and is 

appealable.” On November 4, 2021, the trial court signed the charging order. 

On December 2, 2021, Mitchell timely filed a motion for new trial with his 

affidavit. Mitchell asserted that he did not have notice of the motion for summary 

judgment or the November 2, 2021 hearing. He was alerted to activity in the case 

when he received, on December 1, 2021, notification of service regarding 

CommunityBank’s subpoena for the production of documents. 

On January 21, 2022, Mitchell filed an unsworn motion to extend postjudgment deadlines, in which he asserted that he did not receive notice or acquire 

actual notice of the judgment until December 1, 2021, more than 20 days after the 

trial court signed the judgment. Although Mitchell asked the trial court to determine 

the date Mitchell received notice or acquired actual knowledge of the judgment, he 
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did not set the motion to extend for a hearing. The trial court never ruled on the 

motion to extend. 

On February 22, 2022, CommunityBank responded to Mitchell’s motion to 

extend post-judgment deadlines and motion for new trial. CommunityBank 

maintained that Mitchell’s motion for new trial was overruled by operation of law 

on January 17, 2022, and the trial court’s plenary power expired on February 16, 

2022—thirty days after the motion for new trial was overruled. CommunityBank 

asserted that the unsworn motion to extend post-judgment deadlines did not invoke 

the trial court’s expired jurisdiction. The trial court signed the order granting 

Mitchell’s motion for new trial on March 22, 2022.

STANDARD OF REVIEW

To obtain mandamus relief, a relator generally must show both that the trial 

court clearly abused its discretion and that the relator has no adequate remedy by 

appeal. In re Dawson, 550 S.W.3d 625, 628 (Tex. 2018) (orig. proceeding) (per 

curiam); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135‒36 (Tex. 2004) (orig. 

proceeding). A trial court clearly 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 the law correctly or apply the law correctly to the facts. In 

re H.E.B. Grocery Co., L.P., 492 S.W.3d 300, 302‒03 (Tex. 2016) (orig. proceeding) 

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

(orig. proceeding) (per curiam). Mandamus is appropriate when a trial court has 

acted after its plenary power has expired. In re Lovito-Nelson, 278 S.W.3d 773, 776 

(Tex. 2009) (orig. proceeding) (per curiam).
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ANALYSIS

The trial court has plenary power to grant a new trial or to vacate, modify, 

correct or reform a judgment or order within thirty days after the judgment is signed. 

Tex. R. Civ. P. 329b(d). A motion for new trial shall be filed prior to or within thirty 

days after the judgment or order is signed. Id. 329b(a). A properly filed motion for 

new trial extends a trial court’s plenary power over its judgment. Mitschke v. 

Borromeo, 645 S.W.3d 251, 253 (Tex. 2022). The motion for new trial is overruled 

by operation of law seventy-five days after the date the judgment was signed unless 

the trial court signs a written order overruling the motion. Tex. R. Civ. P. 329b(c). 

The trial court retains plenary power for thirty days after the date it signs an order 

ruling on the motion for new trial or after the new-trial motion is overruled by 

operation of law, whichever occurs first. Id. 329b(e). 

The date the judgment or order is signed generally starts the clock on the 

thirty-day filing period contemplated by Rule 329(a). Id. 306a(1). When a final 

judgment or other appealable order is signed, the clerk of the court must immediately 

give notice to the parties or their attorneys of record electronically or by first-class 

mail advising that the judgment or order was signed. Id. 306a(3). If a party does 

not receive the required notice or acquire actual knowledge of the judgment until 

more than twenty days after the judgment is signed, Rule 306a allows the time 

periods to run from the date the party received notice or acquired actual knowledge 

of the judgment, but in no event shall such periods begin more than ninety days after 

the original judgment or other appealable order was signed. Id. 306a(4). 

“[T]he party adversely affected is required to prove in the trial court, on sworn 

motion and notice, the date on which the party or his attorney first either received a 
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notice of the judgment or acquired actual knowledge of the signing and that this date 

was more than twenty days after the judgment was signed.” Id. 306a(4). To 

establish the application of paragraph (4), the party adversely affected is required to 

prove in the trial court, on sworn motion and notice, the date on which the party or 

his attorney first either received notice of the judgment or acquired actual knowledge 

of the signing and that this date was more than twenty days after the judgment was 

signed. Id. 306a(5).

A sworn motion complying with Rule 306a “establishes a prima facie case 

that the party lacked timely notice and invokes a trial court’s otherwise-expired 

jurisdiction for the limited purpose of holding an evidentiary hearing to determine 

the date on which the party or its counsel first received notice or acquired knowledge 

of the judgment.” In re Lynd Co., 195 S.W.3d 682, 685 (Tex. 2006) (orig. 

proceeding). Compliance with Rule 306a(5) is a jurisdictional requirement to 

extending the time to file post-judgment motion. Mem’l Hosp. of Galveston Cnty. 

v. Gillis, 741 S.W.2d 364, 365 (Tex. 1987) (per curiam). 

The trial court signed the final judgment on November 2, 2021, and Mitchell 

timely filed his motion for new trial on December 2, 2021. The trial court did not 

rule on the motion for new trial and the motion was overruled by operation of law 

on January 16, 2022—seventy-five days after the trial court signed the judgment. 

See Tex. R. Civ. P. 329b(c). The trial court’s plenary power continued for thirty 

days thereafter until February 16, 2022, for a total of 105 days. See id. 329(e); see 

also L.M. Healthcare, Inc. v. Childs, 929 S.W.2d 442, 444 (Tex. 1996) (per curiam) 

(“The trial court’s plenary jurisdiction cannot extend beyond 105 days after the trial 
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court signs the judgment). The trial court signed the order granting the motion for 

new trial on March 22, 2022. 

A Rule 306a motion must be filed and ruled upon while the trial court retains 

plenary power, and the time for the court’s plenary power is counted from the date 

of notice of the judgment as alleged in the Rule 306a motion. Wells Fargo Bank, 

Nat’s Ass’n v. Erickson, 267 S.W.3d 139, 148 (Tex. App.—Corpus Christi 2008, no 

pet.) (citing John v. Marshall Health Servs., Inc., 58 S.W.3d 738, 741 (Tex. 2001) 

(per curiam)). Mitchell filed his unsworn Rule 306a motion to extend on January 

21, 2022, while the trial court still had plenary power as extended by the motion for 

new trial. Mitchell, however, did not set the motion to extend for a hearing and the 

trial court never ruled on it or determined the date on which Mitchell received notice 

of the judgment. 

Moreover, Rule 306a(5) requires that the motion to extend be sworn; 

Mitchell’s motion was not sworn and therefore did not comply with Rule 306a(5). 

See Tex. R. Civ. P. 306a(5). Therefore, Mitchell’s unsworn motion to extend did 

not extend the trial court’s plenary power. See Mem’l Hosp. of Galveston Cnty., 741 

S.W.2d at 365 (Tex. 1987). (stating that compliance with Rule 306a(5) is 

jurisdictional). 

We conclude that the trial court abused its discretion by granting Mitchell’s 

motion for new trial after its plenary power had expired and the order is void. 

Because the order granting Mitchell’s motion for new trial is void, CommunityBank 

does not need to show that it has an adequate remedy by appeal. See In re Sw. Bell 

Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding) (per curiam). 
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CONCLUSION

Having determined that the trial court abused its discretion by granting a 

motion for new trial after its plenary power had expired and CommunityBank need 

not show that it does not have an adequate remedy by appeal, we conditionally grant 

CommunityBank’s petition for writ of mandamus and direct the trial court to vacate 

its March 22, 2022 order granting Mitchell’s motion for new trial. We are confident 

the trial court will act in accordance with this opinion and the writ will issue only if 

the court fails to do so. Our April 13, 2022 stay order is lifted. 

PER CURIAM

Panel consists of Justices Wise, Poissant, and Wilson.