Opinion filed March 1, 2012

In The

Eleventh Court of Appeals 

__________

No. 11-11-00271-CV

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DONNIE SECHREST AND DONNIE 

SECHREST CONSTRUCTION, INC., Appellants

V.

PRYOR BLACKWELL, Appellee

On Appeal from the 259th District Court

Shackelford County, Texas

Trial Court Cause No. 2010-029

M E M O R A N D U M O P I N I O N

Donnie Sechrest and Donnie Sechrest Construction, Inc. appeal from a final summary 

judgment rendered in favor of the plaintiff, Pryor Blackwell. Upon reviewing the clerk’s record 

in this case, this court wrote the parties and informed them that the notice of appeal appeared to 

be untimely. We requested that appellants respond and show grounds to continue the appeal. 

Appellants filed a response urging that their notice of appeal was timely pursuant to TEX. R.

CIV. P. 306a and TEX. R. APP. P. 4.2. Because these rules are not applicable in this case, we 

dismiss the appeal for want of jurisdiction pursuant to TEX. R. APP. P. 42.3(a). 
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The record shows that the trial court entered a final summary judgment on March 21, 

2011. Appellants timely filed a motion for new trial on April 6, 2011. The trial court entered a 

written order denying the motion for new trial on May 26, 2011. On June 3, 2011, appellants 

filed an untimely amended motion for new trial and, alternatively, a motion to reconsider their 

motion for new trial. See TEX. R. CIV. P. 329b(a), (b). In a letter order dated July 1, 2011, the 

trial court granted a new trial. Then, on September 15, 2011, the trial court entered two orders 

that operated to vacate the July 1 order: one order granting Blackwell’s motion to reconsider and 

another order denying various motions filed by appellants, including the amended motion for 

new trial.

A trial court has plenary power to grant a new trial ―until thirty days after all such timelyfiled motions are overruled, either by a written and signed order or by operation of law, 

whichever occurs first.‖ TEX. R. CIV. P. 329b(e). Pursuant to Rule 329b(e), the trial court in this 

case lost plenary power thirty days after the May 26 written order denying the motion for new 

trial, which we calculate to be Monday, June 27, 2011. Therefore, the trial court had lost plenary 

power prior to entering the July 1 letter order granting a new trial and the subsequent orders of

September 15, and these orders are void. TEX. R. CIV. P. 329b(f); In re Brookshire Grocery Co., 

250 S.W.3d 66, 72 (Tex. 2008). Because these orders are void, they do not extend the time for 

filing a notice of appeal. Accordingly, appellants’ notice of appeal, which was filed on 

October 5, 2011, is untimely as it was due to be filed on or before June 20, 2011, ninety days 

after the final summary judgment was signed. See TEX. R. APP. P. 26.1(a). Absent a timely 

notice of appeal, this court is without jurisdiction to consider this appeal. See Wilkins v. 

Methodist Health Care Sys., 160 S.W.3d 559, 563 (Tex. 2005); Garza v. Hibernia Nat’l Bank, 

227 S.W.3d 233 (Tex. App.—Houston [1st Dist.] 2007, no pet.); see also Verburgt v. Dorner, 

959 S.W.2d 615, 617 (Tex. 1997). 

Appellants urge that Rule 306a and Rule 4.2 extend the timelines in this case because 

appellants did not receive notice of the trial court’s May 26 written order denying their motion 

for new trial. Their argument is that, because they did not receive notice of the written order, the 

thirty-day plenary-power period did not begin to run on May 26. If a written order had not been 

entered, the motion for new trial would have been overruled by operation of law on Monday, 

June 6, 2011; the trial court would have had plenary power for thirty days thereafter; and it 

would have been within the trial court’s plenary power to grant a new trial on July 1 and to 
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vacate that decision on September 15, which would make the date of final judgment 

September 15 and the notice of appeal timely. See In re Baylor Med. Ctr. at Garland, 280 

S.W.3d 227, 230–31 (Tex. 2008).

Rule 306a provides in part as follows: 

1. Beginning of periods. The date of judgment or order is signed as 

shown of record shall determine the beginning of the periods prescribed by these 

rules for the court’s plenary power to grant a new trial . . . and for filing in the 

trial court the various documents that these rules authorize a party to file within 

such periods . . . .

. . . .

3. Notice of judgment. When the final judgment or other appealable 

order is signed, the clerk of the court shall immediately give notice to the parties 

or their attorneys of record . . . .

4. No notice of judgment. If within twenty days after the judgment or 

other appealable order is signed, a party adversely affected by it or his attorney 

has neither received the notice required by paragraph (3) of this rule nor acquired 

actual knowledge of the order, then with respect to that party all the periods 

mentioned in paragraph (1) shall begin on the date that such party or his attorney 

received such notice or acquired actual knowledge of the signing, whichever 

occurred first, but in no event shall such periods begin more than ninety days after 

the original judgment or other appealable order was signed. 

Rule 4.2(a)(1) similarly provides additional time to file documents when ―a party affected by a 

judgment or other appealable order‖ has not received the notice required by Rule 306a. 

Appellants’ reliance on these rules is misplaced. The provisions of Rule 306a and 

Rule 4.2 specifically apply to final judgments and appealable orders. The May 26 written order 

denies a motion for new trial and is, therefore, not a final judgment or an appealable order. One 

of our sister courts has likewise rejected the contention that the lack of notice of an order 

overruling a motion for new trial extends a trial court’s plenary power. McClelland v. Partida, 

818 S.W.2d 453 (Tex. App.—Corpus Christi 1991, writ dism’d w.o.j.). The McClelland court 

stated: 

However, Parras [a plaintiff whose claims had been dismissed by an order 

of dismissal] apparently convinced the respondent trial court that its failure to 

provide him with timely notice of the overruling of his motion for new trial 

extended the trial court’s plenary power under the provisions of Tex.R.Civ.P. 

306a, which provides for an extension of the trial court’s plenary power over the 

judgment in certain cases, as follows:

[Rule 306a(4) was quoted here]
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The present order overruling the motion for new trial, however, is not a judgment 

or other appealable order. See Puckett v. Frizzell, 402 S.W.2d 148, 151 (Tex.

1966). Thus, regardless of the fact that Parras may not have had notice of the 

overruling of his motion, the trial court’s period of plenary power remained the 

same, unaffected by Rule 306a(4). We thus hold that the trial court’s attempt to 

grant a new trial and any further assertions of jurisdiction over the present case 

are null and void.

818 S.W.2d at 455–56 (footnote omitted). 

Appellants have also asked that we suspend the operation of the rules for good cause 

under TEX. R. APP. P. 2 and, alternatively, that we abate the appeal so that the trial court may 

enter a finding under Rule 306a. As discussed above, a finding under Rule 306a that appellants

did not receive notice of the May 26 order would not benefit appellants. Therefore, abatement is 

unnecessary. Furthermore, Rule 2, which allows for suspension of the rules, specifically 

provides that ―a court must not construe this rule . . . to alter the time for perfecting an appeal in 

a civil case.‖ We also note that TEX. R. CIV. P. 5 prohibits a court from ―enlarg[ing] the period 

for taking any action under the rules relating to new trials except as stated in these rules.‖ 

Appellants’ Motion to Suspend Operation of Rules and for Different Procedure and 

Alternative Motion to Abate is overruled, and the appeal is dismissed for want of jurisdiction.

PER CURIAM

March 1, 2012

Panel consists of: Wright, C.J.,

McCall, J., and Kalenak, J.