Affirmed and Memorandum Opinion filed September 1, 2022.

In The

Fourteenth Court of Appeals

NO. 14-21-00036-CV

ANGELICA MARIA REYES, Appellant

V.

AZAEL PATRICK FRAGA, Appellee

On Appeal from the 257th District Court

Harris County, Texas

Trial Court Cause No. 2011-61532

MEMORANDUM OPINION

Appellant Angelica Maria Reyes (Grandmother) filed a suit to modify the 

parent-child relationship requesting managing conservatorship of two children of 

appellant Azael Patrick Fraga (Father) as well as for grandparent access requesting 

possession of or access to the children. See Tex. Fam. Code Ann. §§ 102.004(a)

(conferring standing on grandparent), 153.433(a) (authorizing court to order 

reasonable possession or access to grandchild), 109.002 (authorizing appellate 

review). In his answer to Grandmother’s petition, Father requested attorney’s fees 
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on the grounds that Grandmother’s suit was “filed frivolously or is designed to 

harass” Father. In November 2020, Grandmother filed a “motion for non-suit.” The 

trial court signed an order dismissing Grandmother’s claims on November 13, 

2020. The trial court held a trial on Father’s request for attorney’s fees in

December 2020 and signed a final order awarding Father $10,000 in attorney’s 

fees on January 8, 2021. In two issues, Grandmother challenges the trial court’s 

order, arguing (1) the order is void because the trial court’s plenary power had 

expired at the time it signed the order and (2) the trial court awarded attorney’s 

fees on an improper basis.

I. ANALYSIS

A. Plenary power

In issue 1, Grandmother argues the order awarding attorney’s fees is void 

because the trial court no longer had plenary power at the time it signed the final 

order in January 2021. “The trial court, regardless of whether an appeal has been 

perfected, has plenary power to grant a new trial or to vacate, modify, correct, or 

reform the judgment within thirty days after the judgment is signed.” Tex. R. Civ. 

P. 329b(d). If the trial court does not take any action described in Rule 329b(d), 

and no motion for new trial or to modify, correct, or reform the judgment is filed

within 30 days of the signing of the trial court’s judgment, the trial court loses its 

plenary power once thirty days have elapsed after the judgment or other order 

complained of was signed. See Tex. R. Civ. P. 329b. Here, Grandmother argues the 

trial court lost its plenary power 31 days after it signed the November 2020 order 

granting Grandmother’s “motion for non-suit” and dismissing Grandmother’s 

claims, because those were the only claims before the trial court. Therefore, 

according to Grandmother, the trial court’s January 2021 order is void.

Texas Rule of Civil Procedure 162 provides that a plaintiff may take a 
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non-suit at any time before introducing all of her evidence other than rebuttal 

evidence. Tex. R. Civ. P. 162. Rule 162 also provides, however, that a non-suit 

“shall not prejudice the right of an adverse party to be heard on a pending claim for 

affirmative relief.” Id. Here, Father requested attorney’s fees in his answer on the 

basis that Grandmother’s suit was “filed frivolously or is designed to harass”

Father. Grandmother does not argue that this pleading is not sufficient to give

notice of a claim for attorney’s fees1; instead, Grandmother argues that, because

the request was asserted in an answer as opposed to a counterclaim, the request did 

not survive Grandmother’s non-suit. However, “Texas courts have held that an 

affirmative claim, stated in an answer, for recovery of attorney’s fees for 

preparation and prosecution of a defense constitutes a counterclaim, and as such, 

survives a nonsuit.” Kelsall v. Haisten, 564 S.W.3d 157, 163 (Tex. App.—Houston 

[1st Dist.] 2018, no pet.) (quotations omitted) (collecting cases).

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Because Father’s claim for attorney’s fees was an affirmative claim for relief 

that was pending at the time the trial court signed the order that noted the non-suit 

of Grandmother’s case, we conclude the trial court’s plenary power did not expire 

31 days after it signed an order noting the non-suit of Grandmother’s case. See 

Tex. R. Civ. P. 162; Kelsall, 564 S.W.3d at 163. Accordingly, the trial court’s 

January 2021 order awarding Father attorney’s fees is not void due to expiration of 

1 Cf. Bellefonte Underwriters Ins. Co. v. Brown, 663 S.W.2d 562, 575 (Tex. App.—

Houston [14th Dist.] 1983) (plaintiff need only plead facts which entitle him to recovery of 

attorney’s fees and need not also specifically plead legal authority entitling him to recovery of 

attorney’s fees), aff’d in part, rev’d in part on other grounds, 704 S.W.2d 742 (Tex. 1986).

2 Grandmother argues the supreme court’s decision in University of Texas Medical

Branch at Galveston v. Estate of Blackmon ex rel. Shultz compels a different result. UTMB, 195 

S.W.3d 98 (Tex. 2006). UTMB, however, does not address a claim for attorney’s fees pleaded in 

an answer. Instead, the supreme court determined that a request for costs asserted in a plea to the 

jurisdiction, without more, did not survive a non-suit. See id. at 101 (explaining that UTMB “has 

not raised a claim for affirmative relief, but it did request costs in its plea to the jurisdiction”).

Accordingly, UTMB is factually distinguishable and does not control the disposition of this 

appeal.
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the trial court’s plenary power.

We overrule issue 1.

B. Basis for award of attorney’s fees

In issue 2, Grandmother argues the trial court erred by awarding attorney’s 

fees because Father pleaded his claim for fees on the basis that Grandmother’s suit

was “filed frivolously or is designed to harass” Father, and the trial court awarded

fees on a different basis that Father did not plead. The trial court’s order, however, 

does not state the basis for the fee award, and there are no findings of fact or 

conclusions of law in the record. Grandmother bases her argument on an unsigned 

docket entry stating in part that “[t]he court does not find that the suit was filed 

frivolously or designed to harass. However, the absence of that finding does not 

preclude the court from awarding Respondent a judgment for reasonabl[e]

attorney’s fees and expenses pursuant to TFC 106.002, whether Respondent is 

considered the ‘prevailing party’ or not.”

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“A docket entry may supply facts in certain situations, but it cannot be used 

to contradict or prevail over a final judicial order.” N-S-W Corp. v. Snell, 561 

S.W.2d 798, 799 (Tex. 1977) (citation omitted). Moreover, absent exceptional 

circumstances not present here, “[a]n appellate court may not consider docket 

entries since they are only made for the clerk’s convenience and are usually 

unreliable.” Rush v. Barrios, 56 S.W.3d 88, 95 (Tex. App.—Houston [14th Dist.] 

2001, pet. denied). Our court has explained that it is “especially inappropriate” to 

consider docket entries as findings of fact when the trial court has not filed such 

findings. Id. at 96.

3 Family Code section 106.002(a) provides, “In a suit under this title, the court may 

render judgment for reasonable attorney’s fees and expenses and order the judgment and 

postjudgment interest to be paid directly to an attorney.” Tex. Fam. Code Ann. § 106.002(a).
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Accordingly, we do not consider the docket entry relied on by Grandmother 

in determining the basis for the trial court’s award of attorney’s fees. Because the 

“finding” in the docket entry is the sole basis on which Grandmother argues the 

trial court awarded fees on an improper basis, we overrule issue 2.

II. CONCLUSION

Having overruled Grandmother’s two issues, we affirm the trial court’s final 

order as challenged on appeal.

/s/ Charles A. Spain

Justice

Panel consists of Chief Justice Christopher and Justices Bourliot and Spain.