Opinion
No. 13-04-639-CV
Delivered and Filed: May 18, 2006.
On Appeal from the County Court At Law No. 5 of Hidalgo County, Texas.
Before Justices HINOJOSA, YAÑEZ, and CASTILLO.
MEMORANDUM OPINION ON MOTION FOR REHEARING
This appeal was brought from a "judgment for permanent injunction" which issued on July 13, 2004, in a case where the trial court had already issued an interlocutory default judgment on March 8, 2004, followed by a final judgment dated May 13, 2004. We dismissed for want of jurisdiction. In our opinion, dated February 16, 2006, we concluded that no motion for new trial or other motion to extend the court's plenary power was filed and the trial court's jurisdiction expired in June 2004. Additionally, no bill of review was filed. Then, on July 2, 2004, Miguel Longoria filed a motion for injunctive relief. Although filed less than ninety days after the judgment, for the reasons set forth in our opinion that motion failed to satisfy the requisites of rule 306a and failed to extend the plenary power of the court. TEX. R. CIV. P. 306a.
Upon the expiration of the trial court±'s plenary power, a judgment cannot be set aside by the trial court except by bill of review for sufficient cause, filed within the time allowed by law. See TEX. R. CIV. P. 329b(f). A bill of review is an equitable action brought by a party to a prior action who seeks to set aside a judgment that is no longer appealable or subject to a motion for new trial. State v. 1985 Chevrolet Pickup Truck, 778 S.W.2d 463, 464 (Tex. 1989) (per curiam) (op. on reh'g); Mowbray v. Avery, 76 S.W.3d 663, 682 (Tex.App.-Corpus Christi 2002, pet. denied). To have the judgment set aside, the complainant must first meet certain pretrial burdens and then prevail on the merits. Baker v. Goldsmith, 582 S.W.2d 404, 406-07 (Tex. 1979); Kessler v. Kessler, 693 S.W.2d 522, 526 (Tex.App.-Corpus Christi 1985, writ ref'd n.r.e.).
Garcia v. Longoria, No. 13-04-639-CV, 2006 Tex. App. LEXIS 1292 (Tex.App.-Corpus Christi Feb. 16, 2006) (memorandum opinion).
We further observed that judicial action taken after the trial court's plenary power has expired is void, and that void or invalid trial court judgments rendered without jurisdiction are properly challenged by mandamus. In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998) (orig. proceeding) (holding that mandamus is the appropriate remedy to set aside an order granted after the court's plenary power has expired and that is, therefore, void); see also Dikeman v. Snell, 490 S.W.2d 183, 186 (Tex. 1973) (orig. proceeding).
See State ex. rel Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995); Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990) (defining a void judgment as one rendered when a court has no jurisdiction over the parties or subject matter, no jurisdiction to render judgment, or no capacity to act as a court).
Appellant points us to the order of this Court dated December 7, 2004, in which his petition for mandamus related to this same matter, Cause No. 13-04-00634-CV, was denied, based upon the pending appeal.
Because this appeal was taken from an order that issued without jurisdiction and which is therefore void, we cannot assert jurisdiction over this matter in this appeal. State ex. rel Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995). The motion for rehearing is denied. However, because of the circumstances presented, and because this Court has now determined there is no adequate remedy by appeal, this Court will entertain a newly-filed petition for writ of mandamus and a motion to transfer the records into the new cause.