Opinion issued December 21, 2023

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 23
- 00655
- CV

——————————— IN RE CHARLES BOWEN AND BLACKFOOT ELECTRIC, INC. , Relators

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION Relators Charles Bowen and Blackfoot Electric, Inc. filed a P etition for W rit
of M andamus complaining th at Respondent , the Honorable Elaine H. Palmer , abused her discretion by sign ing an order granting Real Parties in Interest ’ s Motion for Judgment Nunc Pro Tunc and reinstat ing the underlying case after the trial2

court’s plenary power expired. 1 Relators seek an order from this court vacating the trial court’s order.
We conditional ly grant the relief sought. Background Relators were involved in an automobile accident with Real Part ies in Interest Juan Nunez and Cristobal Nunez

. Real Parties sued Relators for negligence in connection with the accident on May 27, 2021

. In a notice dated April 12, 2022, t he trial court informed the parties th at because “ no answer or service ha[d] been filed,” the case would be dismissed for want of prosecution on May 27, 2022 , unless by th at date, an answer was filed , a default judgment order was signed , or a verified motion and order to retain were filed. Real Parties took no action in response to the trial court’s notice. Noting the “failure to comply with the Notice,” Respondent signe d an order dismiss ing the lawsuit for want of prosecution on June 3, 202 2

. On June 22, 2022, Real Parties filed a V erified M otion to R einstate setting
their motion for submission on July 11, 2022

. Arguing “[d]efendant was served September 22, 2021, ” 2 Real Parties reque s ted reinstatement of the case to “an active

1 The underlying case is Juan Nunez and Cristobal Nunez v. Charles Lydon Bowen and Blackfoot Electric, Inc. , Cause No. 2021

- 31913 , pending in the 215th District Court of Harris County, Texas, the Honorable Elaine H. Palmer presiding.
2 There are two named defendants in the lawsuit. The Motion to Reinstate does not indicate which defendant was served.3

status to allow Plaintiff additional time to file a motion for final default judgment.”
The trial court did not hold a hearing on the motion or otherwise act on the motion. Four months later, o n October 13, 2022, R eal Parties filed a M otion for
J udgment N unc P ro T unc ( “ Motion Nunc Pro Tunc ” ) , requesting Respondent grant their previously filed M otion to R einstate. Real Parties attached the sworn affidavit
of their paralegal, Jessica Hughes, to the ir motion. Hughes stat ed in her affidavit that on October 12, 2022, she “ di scov ered that th[e] [m]otion to [r]e

- instate, and its accompanying [o]rder did not receive a ruling . . . .” Hughes stated that on July 12, 2022 and on July 18, 2022, she was “told the [o]rder was on the Judge’s desk to be granted and signed [,] ” and she “had no notice that the case had not been [r]e

instated.” “To the extent the [trial court was] concerned about is plenary power, ” Real Parties argued that the trial court’s failure to rule on their Motion to Reinstate “was one of a clerical nature, and this can be corrected by a Judgment Nunc Pro Tunc.” Real Parties filed a notice setting their Motion Nunc Pro Tunc for submission on October 24, 2022. On October 25, 2022, 144 days after dismissing the case for want of prosecution, Respondent granted Real Parties’ M otion N unc P ro T unc , thereby reinstating the case

. Relators filed the instant P etition for W rit of M andamus asserting Respondent abused her discretion in granting Real Parties’ M otion N unc P ro T unc and4

reinstating the case , because the trial court’s plenary power expired on September 16, 2022

. W e directed Real Parties to file a response to the P etition for W rit of
M andamus

. Real Parties did not respond. Discussion A. Standard of Review Mandamus relief is appropriate when the trial court abuses its discretion , and the relator lacks an adequate remedy by appeal. In re AutoNation, Inc. , 228 S.W.3d 663, 667 (Tex. 2007) (orig. proceeding) ; In re Prudential Ins. Co of America , 148 S.W.3d 124, 135

- 36 (Tex. 2004) (orig. proceeding)

. A trial court abuse s its
discretion when there is “a clear failure by the trial court to analyze or apply the law

c orrectly.” Walker v. Packer , 827 S.W.3d 833, 8 40 (Tex. 1992) (orig. proceeding). Mandamus relief is available “when a trial court issues an order after its plenary power has expired.” In re Brookshire Grocery Co. , 250 S.W.3d 66, 68 (Tex. 2008) (orig. proceeding) (citing In re Sw. Bell Tel. Co. , 35 S.W.3d 602, 605 (Tex. 2000) (orig. pr oceeding))

. B. Applicable Law Texas Rule of Civil Procedure 165a governs dismissals for want of prosecution and reinstatements. For motions to reinstate, Rule 165a provides that
the motion :

s hall be filed with the clerk within 30 days after the order of dismissal is signed or within the period provided by Rule 306a

. . . . The clerk shall5

deliver a copy of the motion to the judge, who shall set a hearing on the motion as soon as pra cticable. The court shall notify all parties or their attorneys of record of the date, time and place of the hearing.
T EX
. R. C IV . P. 165a(3). In the event “for any reason” the motion “ is not decided by signed order within seventy

- five days after the judgment is signed ,” the motion “shall be deemed overruled by operation of law.” Id. When a timely motion to
reinstate is filed , the trial court, regardless of whether an appeal has been perfected, has plenary power to reinstate the case until 30 days after all such timely filed motions are overruled, either by a written and signed order or by operation of law, whichever occurs firs t. Id

. When there are clerical errors in a judgment or order, a trial court is authorized
to issue a judgment nunc pro tunc to correct the error even after its plenary power has expired. See T EX
. R. C IV . P. 3 16 (providing “[c] lerical mistakes in the rec ord of any judgment may be corrected by the judge in open court ”); see also T EX
. R. C IV
. P. 306 a( 6) (stating that “[w] hen a corrected judgment has been signed after expiration of the court ’ s plenary power pursuant to Rule 316 , the periods mentioned in paragraph (1) of this rule shall run from the date of signing the corrected judgment with respect to any complaint that would not be applicable to the origi nal document ”)

.6

C. The Motion for Judgment Nunc Pro Tunc and Motion to R einstate Relators timely filed their M otion to R einstate on June 22, 2022, 19 days after
the trial court signed its order of dismissal on June 3, 2022

. See T EX
. R. C IV . P. 165 a(3)

. Respondent did not act on the M otion to R einstate within 75 days after the order of dismissal was signed . The motion was thus overruled by operation of law 75 days after the order of dismissal was signed or on August 17, 2022. See T EX
. R. C IV . P. 165a (3) ; see also In re Garcia , 94 S.W.3d 832, 83 4 (Tex. App.

— Corpus Christi

– Edinburg 2002 ) (orig. proceeding) (“ The motion for reinstatement was overruled by operation of law because it was not decided within seventy

- five days
after the judgment was signed. ”)

. Pursuant to Rule 165a(3), Respondent retained plenary power to reinstate the

case for an additional 30 days or until September 16, 2022

. T EX
. R. C IV . P. 165a (3) ; see also In re Garcia , 94 S.W.3d at 83 4 (“ The trial court had plenary power to reinstate the case until thirty days after any such timely filed motion was overruled.”). Real Parties did not file their M otion N unc P ro T unc until October 13,
2022 , well after the court’s plenary power had expired. Presumably aware of this problem, Real Parties argued that Respondent’s failure to rule on their M otion to
R einstate was a clerical error because Respondent had intended to rule on the M otion
to R einstate , and thus the court had plenary power to grant their motion. Respondent7

granted Real Parties’ M otion N unc P ro T unc on October 25, 2022 , thereby reinstat ing the case

. Respondent abused h er discretion in granting Real Parties’ Motion Nunc Pro
Tunc because , when she granted the motion, the trial court’s plenary power had expired

. “[A] n order that dismisses a case for want of prosecution bec o me s a final judgment upon expiration of the trial court ’ s plenary jurisdiction .” In re Wal

- Mart Stores, Inc. , 20 S.W.3d 734, 738 (Tex. App.

— El Paso 2000 , no pet. ) (orig. proceeding)

. “ Once [a] judgment becomes final,

. . . the court ’ s power to correct is
li mited to the correction of clerical errors only, which may be performed though a judgment nunc pro tunc.” Parker v. Lancon , 1998 WL 104967, at *1 (Tex. App.

— Houston [14th Dist.] Mar. 12, 1998)

. “ A clerical error is a mistake or omission that prevents the judgment as entered from reflecting the judgment as rendered.” Id

. Notably, “ even if the dismissal was signed by mistake, our focus must be on what judgment the trial court actually rendered, ra ther than what the court may have intended .” In re Pipoly , 2001 WL 1479268, at *2 (Tex. App.

— San Antonio Nov. 21, 2001 , no pet. ) (orig. proceeding).
A pplying th e se principle s to the instant case, we hold there was no clerical error to correct and thus Respondent’s October 25, 2022 is void. Neither the trial court’s failure to hold a hearing on Real Parties’ M otion to R einstate nor dismissal of the case for want of prosecution on June 3, 2022 was a clerical error. E ven if we8

agree with Real Parties that Respondent intended to grant Real Parties’ M otion to
R einstate when she ruled on their M otion N unc P ro T unc , any attempted corr ection
of such error was a “judicial” act, requir ing Respondent to have jurisdiction through plenary power to rule on the motion

. Indeed, “ [i] f the [court] intends to render one thing but actually renders another, the resultant error is judicial, not cler ical. ” Id

. (quoting citation omitted).
Because the plenary power of the trial court expired on September 16, 2022, Respondent’s October 25, 2022 order granting Real Parties’ Motion Nunc Pro Tunc and reinstating the case , is void. See Walker v. Harrison , 597 S.W.2d 913, 915 (Tex. 1980) (orig. proceeding) ( [“T] he time limits provided in rule 165a are mandatory and jurisdictional and

. . . orders of reinstatement entered after their expiration are void. ”); In re Valliance Bank , 422 S.W.3d 722, 729 (Tex. App.

— Fort Worth 2012, orig. proceeding) (“ Because the trial court signed the order of reinstatement after its plenary power had expired, we hold that the order of reinstatement is void and of no legal effect. ”); In re Boglia, L.L.C. , 2011 WL 13385443, at *1 (Tex. App.

— Houston [1st Dist.] Dec. 22, 2011, orig. proceeding) (mem. op.) ( “ A reinstatement order rendered after the expiration of the trial court’s plenary power is void.”). “Mandamus is the proper vehicle to remedy a void reinstatement order.” I d

. We hold Respondent abused her discretion in granting Real Parties’ Motion
Nunc Pro Tunc and reinstating the case . M andamus is thus warranted. See Estate9

of Howley By & Through Howley v. Haberman , 878 S.W.2d 139, 140 (Tex. 1994) (orig. proceeding) (“ When a trial court erroneously reinstates a case after the expiration of the court ’ s plenary jurisdiction, mandamus will issue. ”)

. Conclusion
We conditionally grant mandamus relief and direct Respondent to vacate her October 25 , 202 2 order reins tat ing the case

. A writ will issue only if the trial court does not comply. All pending motions are dismissed as moot. PER CURIAM
Panel consists of Chief Justice Adams and Justices Landau and Rivas

- Molloy.