Conditionally Grant and Opinion Filed September 8, 2014

S

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-14-01046-CV

IN RE EDUARDO TORRES-MEDINA, Relator

Original Proceeding from the 401st Judicial District Court

Collin County, Texas

Trial Court Cause No. 401-54782-2012

MEMORANDUM OPINION

Before Chief Justice Wright, Justice Fillmore, and Justice Evans

Opinion by Justice Evans

Relator filed this petition for writ of mandamus requesting that the Court order the trial 

court to vacate its Final Decree of Divorce pronounced and rendered on May 14, 2014 and 

signed on July 18, 2014. Relator contends that the trial court rendered the decree after its 

plenary power had expired. We agree and conditionally grant the writ of mandamus. 

FACTUAL AND PROCEDURAL CONTEXT

Real party in interest, Idania Lizbeth Sanchez-Navarro Suarez, filed a petition for divorce 

from relator Eduardo Torres-Medina. The trial court rendered judgment on the petition on 

September 18, 2013 and signed the first divorce decree on January 16, 2014. The first divorce 

decree did not require either party to pay child support to the other.

Torres-Medina filed a timely motion for new trial on October 4, 2013. The trial court 

heard and granted the motion for new trial on March 25, 2014. At the conclusion of the hearing 

on the motion for new trial, the trial judge requested that counsel for Torres-Medina prepare an 
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order granting new trial and directed the parties to immediately obtain a setting for the new trial 

from the court coordinator.

The trial court held the new trial on May 14, 2014. At the beginning of the May 14, 2014 

trial, the trial judge noted that he could not find an order granting new trial in the file, although 

he believed he had signed such an order. Counsel for Torres-Medina remained silent in the face 

of this comment and allowed the new trial to proceed without objection. The trial court then 

proceeded with the new trial, pronounced and rendered judgment on May 14, 2014 and signed 

the second divorce decree on July 18, 2014. The second divorce decree required Torres-Medina 

to pay child support to Sanchez-Navarro Suarez. Accordingly, the trial court also signed an 

income withholding order dated July 18, 2014.

NECESSITY FOR WRITTEN ORDER GRANTING NEW TRIAL

Absent a written order granting or denying new trial, a motion for new trial is overruled 

by operation of law seventy-five days after the judgment is signed. TEX. R. CIV. P. 329b(c). An 

order granting new trial must be written, must be in the form of an order and must be express and 

specific. McCormack v. Guillot, 597 S.W.2d 345, 346 (Tex. 1980) (orig. proceeding); see also 

Faulkner v. Culver, 851 S.W.2d 187, 188 (Tex. 1993) (orig. proceeding); Reese v. Piperi, 534 

S.W.2d 329, 330–31 (Tex. 1976) (orig. proceeding). An oral order granting new trial, even when 

accompanied by a docket entry indicating that the motion has been granted and a scheduling 

order setting the date for the new trial cannot substitute for the required written order granting 

new trial. Estate of Townes v. Wood, 934 S.W.2d 806, 807 (Tex. App.—Houston [1st Dist.] 

1996, orig. proceeding). The trial court loses jurisdiction to act following the expiration of the 

period to rule on the motion for new trial if it has not signed a written order before that date. 

McCormack, 597 S.W.2d at 346. Once a trial court loses plenary power, “any subsequent retrial 

would be a nullity.” In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998) (orig. proceeding). Here 
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there is no written order granting new trial in the record before the Court and the trial judge has 

confirmed that no such order exists in the trial court files. Accordingly, the trial court lacked the 

power to conduct a new trial in this case.

APPROPRIATENESS FOR MANDAMUS REVIEW

An order or judgment signed after a trial court’s plenary power has expired is void and an 

abuse of discretion. In re Southwestern Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. 

proceeding). A relator is not required to show lack of an adequate remedy by appeal to challenge 

a void order. Id. (citing Dickason, 987 S.W.2d at 571). Because the second divorce decree and 

income withholding order were signed in the absence of a written order granting new trial and 

after the trial court’s plenary power expired, we conditionally grant relator’s petition for writ of 

mandamus. A writ will issue only in the event the trial court fails to vacate its July 18, 2014 

Final Decree of Divorce and its July 18, 2014 Income Withholding Order.

141046F.P05

/David Evans/

DAVID EVANS

JUSTICE