IN THE

TENTH COURT OF APPEALS

No. 10-10-00183-CV

IN RE J. ALLAN GODDARD

Original Proceeding

MEMORANDUM OPINION

In this original proceeding, Relator J. Allan Goddard seeks mandamus relief

because the respondent trial judge, in an order dated April 30, 2010, set aside a July 20, 

2009 judgment, well beyond the expiration of the trial court’s plenary power. See TEX.

R. CIV. P. 329b(c, d).

A trial court retains plenary power to grant a new trial or to vacate, 

modify, correct, or reform a judgment within thirty days after the 

judgment is signed. TEX. R. CIV. P. 329b(d); First Alief Bank v. White, 682 

S.W.2d 251, 252 (Tex. 1984). After the expiration of those thirty days, the 

trial court has no authority to set aside a judgment except by bill of review 

as provided by law. TEX. R. CIV. P. 329b(d); Thursby v. Stovall, 647 S.W.2d 

953, 954 (Tex. 1983). During the time in which a court may vacate, set 

aside, modify or amend its previous order, such action must, to be 

effective, be memorialized by written order that is express and specific. 

McCormack v. Guillot, 597 S.W.2d 345, 346 (Tex. 1980) (citing as the correct 

rule, Poston Feed Mill Co. v. Leyva, 438 S.W.2d 366, 368 (Tex. Civ. App.—
In re Goddard Page 2

Houston [14th Dist.] 1969, writ dism’d w.o.j.)); In the Interest of Hamilton,

975 S.W.2d 758, 761 (Tex. App.—Corpus Christi 1998, pet. denied). A trial 

judge’s oral pronouncement vacating a judgment with a docket entry 

commemorating the same cannot substitute for the written order required 

by Rule 329b. See Faulkner v. Culver, 851 S.W.2d 187, 188 (Tex. 1993) (citing 

Clark & Co. v. Giles, 639 S.W.2d 449, 450 (Tex. 1982)). Nor does a ruling in 

open court suffice to vacate a judgment if it is not reduced to writing 

within the statutory period. Ex Parte Olivares, 662 S.W.2d 594, 595 (Tex. 

1983). A court must speak through its written orders and we cannot 

presume an intent on the part of a court to vacate, set aside, modify or 

amend an order in the absence of an express, specific and written order. 

In the Interest of Hamilton, 975 S.W.2d at 761.

Tex. Prop. & Cas. Ins. Guar. Ass’n v. De Los Santos, 47 S.W.3d 584, 587 (Tex. App.—

Corpus Christi 2001, no pet.). We do not find an equitable exception to this applicable 

law.

Generally, Relators can obtain mandamus relief only upon showing 

that the court committed a clear abuse of discretion and that they have no 

adequate legal remedy. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) 

(orig. proceeding). However, when a party establishes that the court 

rendered a void order, she is “entitled to mandamus relief without a 

showing that there is no adequate remedy by appeal.” In re Union Pac. 

Resources Co., 969 S.W.2d 427, 428 (Tex. 1998) (orig. proceeding).

In re Jeffries, 979 S.W.2d 429, 434 (Tex. App.—Waco 1998, orig. proceeding).

“An order is void when a court has no power or jurisdiction to render it. The 

writ of mandamus will not lie to correct a merely erroneous or voidable order of the 

trial court, but will lie to correct one which the trial judge had no power to render.” 

Urbish v. 127th Jud. Dist. Ct., 708 S.W.2d 429, 431 (Tex. 1986).

We are constrained to find that the trial court had no power to set aside the 

judgment, that the April 30, 2010 order is void, and that Goddard is entitled to 

mandamus relief. We grant his petition and order Respondent to vacate his April 30, 
In re Goddard Page 3

2010 order setting aside the July 20, 2009 judgment. We are confident that Respondent 

will comply with our ruling, so the writ will issue only if Respondent fails to advise this 

Court in writing within fourteen days after the date of this opinion that he has vacated 

the order.

REX D. DAVIS

Justice

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

Petition granted and writ conditionally issued

Opinion delivered and filed July 21, 2010

[OT06]