Johnny Partain v. the State of Texas
CourtTexas Court of Appeals, 13th District
Date FiledOctober 30, 2026
Docket13-26-00577-CV
StatusPublished
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Full Opinion
NUMBER 13-26-00577-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JOHNNY PARTAIN, Appellant,
v.
THE STATE OF TEXAS, Appellee.
ON APPEAL FROM THE 332ND DISTRICT COURT
OF HIDALGO COUNTY, TEXAS
MEMORANDUM OPINION
Before Chief Justice Tijerina and Justices Silva and Cron
Memorandum Opinion by Justice Silva
On August 31, 2026, we handed down our memorandum opinion and judgment in
this cause, which dismissed pro se appellant Johnny Partain’s appeal and vacated the
trial court’s order he appealed. See Partain v. Guerra, No. 13-26-00577-CV, 2026 WL
2593698, at *1 (Tex. App.—Corpus Christi–Edinburg Aug. 31, 2026, no pet. h.) (mem.
op.). The trial court’s order being appealed vacated a prior order from the trial court. See
id. at *2. We held that the trial court’s order being appealed was void because it was
rendered outside its plenary power. See id. at *3. We further held we lacked jurisdiction
over the order being appealed because it was void. See id. (“When a party attempts to
appeal a void order, the appellate court must vacate the order and dismiss the appeal.”).
Thereafter, appellee the State of Texas filed a motion for rehearing requesting, among
other things, that we grant rehearing, withdraw our August 31, 2026 memorandum opinion
and judgment, and issue a substitute opinion dismissing Partain’s appeal without vacating
the order being appealed.
In its motion, the State argued, in part, that the trial court had the power to vacate
an order that was rendered outside its plenary power. See Metro. Transit Auth. v.
Jackson, 212 S.W.3d 797, 801 (Tex. App.—Houston [1st Dist.] 2006, pet. denied) (“A trial
court may not set aside a judgment after the period of plenary power has expired,
unless . . . the court signed the judgment after plenary power over the parties expired, as
provided by [Texas Rule of Civil Procedure] 329b(f).”); TEX. R. CIV. P. 329b(f) (providing
that a trial court “may at any time correct a clerical error in the record of a judgment and
render judgment nunc pro tunc under Rule 316, and may also sign an order declaring a
previous judgment or order to be void because signed after the court’s plenary power had
expired”). We requested and received a response to the State’s motion for rehearing from
Partain. See TEX. R. APP. P. 49.2. The State then filed a supplemental brief replying to
Partain’s response.
After examining and fully considering the State’s motion for rehearing, Partain’s
response, and the State’s reply to Partain’s response, the Court is of the opinion that, in
the interests of justice, the State’s motion for rehearing should be granted. Accordingly,
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we withdraw our August 31, 2026 memorandum opinion and judgment, and we substitute
the following memorandum opinion and accompanying judgment in its place.
This matter is before the Court on its own motion. On August 7, 2026, Partain filed
a notice of appeal attempting to appeal an order entered on July 1, 2026, in trial court
cause C-0929-12-F. On August 14, 2026, the Clerk of the Court notified Partain that it
appears he has attempted to appeal an order which is unappealable. Partain was further
notified that if the defect was not cured within ten days, the appeal would be dismissed.
See id. R. 42.3. The Clerk instructed Partain to cure the defect within ten days. See id.
Partain failed to cure the defect.
A final judgment or other appealable order becomes appealable on, and an
appellant’s timetables run from, the date such a judgment or order is signed. See id. R.
26.1; Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1995) (per curiam) (“The
appellate timetable does not commence to run other than by signed, written order, even
when the signing of such an order is purely ministerial.”). Upon review of the documents
before the Court, 1 it appears that the order from which this appeal was taken is not an
appealable interlocutory order or a final appealable judgment. “[A] judgment is final either
if ‘it actually disposes of every pending claim and party’ or ‘it clearly and unequivocally
states that it finally disposes of all claims and all parties.’” Bella Palma, LLC v. Young,
601 S.W.3d 799, 801 (Tex. 2020) (quoting Lehmann v. Har-Con Corp., 39 S.W.3d 191,
1 The current cause is not the first appeal involving the parties or the underlying trial court cause.
See Partain v. Compass Bank, Nos. 13-21-00038-CV, 13-21-00039-CV, 13-21-00040-CV, 13-21-00041-
CV, 13-21-00042-CV, 13-21-00043-CV, 13-21-00044-CV, 2021 WL 2149825, at *1 (Tex. App.—Corpus
Christi–Edinburg May 27, 2021, no pet.) (mem. op.). We take judicial notice of the appellate record of
Partain’s prior appeals. See Douglas v. Am. Title Co., 196 S.W.3d 876, 877–78 n.1 (Tex. App.—Houston
[1st Dist.] 2006, no pet.) (citation omitted) (“We may take judicial notice of our own records involving the
same parties and subject matter.”).
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205 (Tex. 2001)).
The July 1, 2026 order being appealed vacated a prior order entered by the trial
court on July 29, 2025, which, among other things, granted Partain’s motion to dismiss
his case as moot. 2 “An order setting aside or vacating a judgment returns the parties to
the position they occupied before rendition of the judgment and leaves the case as if no
judgment had been entered.” Curry v. Bank of Am., N.A., 232 S.W.3d 345, 351 (Tex.
App.—Dallas 2007, pet. denied). Thus, such an order does not actually dispose of every
pending claim and party. See Bella Palma, LLC, 601 S.W.3d at 801. “To ensure parties
are not made to guess what action a trial judge has taken concerning an order, courts
have held that such an order is not a final judgment unless it also specifically includes
language disposing of all the issues and parties in the case.” Curry, 232 S.W.3d at 351
(citation modified); see Bella Palma, LLC, 601 S.W.3d at 801.
The July 1, 2026 order contains no language disposing of all the issues and parties
in the case, and is thus not a final, appealable judgment. See Bella Palma, LLC, 601
S.W.3d at 801; Curry, 232 S.W.3d at 351. Furthermore, the July 1, 2026 order appears
to be one issued pursuant to Rule 329b(f), which allows a trial court to declare, at any
time, that its previous judgment or order was void because it was issued outside its
plenary power. See TEX. R. CIV. P. 329b(f). “The Legislature has not provided a method
2 We note that both orders appear to have been rendered outside the trial court’s plenary power
over the parties. However, the Rules of Civil Procedure permit a trial court to set aside a previous judgment
that was rendered outside its plenary power at any time. See TEX. R. CIV. P. 329b(f); Metro. Transit Auth.
v. Jackson, 212 S.W.3d 797, 801 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). Thus, the July 1, 2026
order is not void if rendered outside the trial court’s plenary power, but potentially voidable. See Freedom
Commc’ns, Inc. v. Coronado, 372 S.W.3d 621, 623 (Tex. 2012) (per curiam). (“[A]ppellate courts do not
have jurisdiction to address the merits of appeals from void orders or judgments; rather, they have
jurisdiction only to determine that the order or judgment underlying the appeal is void and make appropriate
orders based on that determination.”).
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to appeal from [orders issued under Rule 329b(f)], nor [do] th[ese] type[s] of order[s]
constitute a final judgment.” In re Marriage of Trice, No. 06-00-00165-CV, 2001 WL
256323, at *2 (Tex. App.—Texarkana Mar. 16, 2001, no pet.) (dismissing appeal involving
an order issued under Rule 329b(f) for lack of jurisdiction). We have not identified any
statute permitting an interlocutory appeal of the July 1, 2026 order. See Harley
Channelview Props., LLC v. Harley Marine Gulf, LLC, 690 S.W.3d 32, 37 (Tex. 2024).
(“An appellate court has no jurisdiction to review an interlocutory order unless review is
conferred by statute.”).
Absent an appealable interlocutory order or final judgment, this Court has no
jurisdiction over this appeal. Ogletree v. Matthews, 262 W.S.3d 316, 319 n.1 (Tex. 2007).
Having considered the documents on file and Partain’s failure to correct the jurisdictional
defect in this matter, we dismiss the appeal for want of jurisdiction. 3 See TEX. R. APP. P.
42.3(a).
CLARISSA SILVA
Justice
Delivered and filed on the
30th day of October, 2026.
3 All pending motions are dismissed as moot.
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