Full Opinion (html_with_citations)

                                Fourth Court of Appeals
                                        San Antonio, Texas

                                   MEMORANDUM OPINION
                                            No. 04-14-00804-CV

           IN RE BEXAR COUNTY CRIMINAL DISTRICT ATTORNEY'S OFFICE,
                          Jonathan Watkins and Thomas Velez

                                     Original Mandamus Proceeding 1

PER CURIAM

Sitting:         Catherine Stone, Chief Justice
                 Marialyn Barnard, Justice
                 Rebeca C. Martinez, Justice

Delivered and Filed: December 31, 2014

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

           On November 19, 2014, relators Jonathan Watkins, Thomas Velez, and the Bexar County

Criminal District Attorney’s Office filed a petition for writ of mandamus, complaining of the trial

court’s orders requiring relators, jointly and severally, to pay sanctions to opposing counsel for

submitting an application for protective order which the trial court found to be groundless and filed

for the purpose of harassment. See TEX. CIV. PRAC. & REM. CODE ANN. § 10.001, .004 (West

2002). We conclude the trial court’s orders were entered after the expiration of plenary power and

are void. Therefore, we conditionally grant mandamus relief.




1
  This proceeding arises out of Cause No. 2014-CI-05810, styled State of Texas for the Protection of Janessa Brown
v. Stephen F. Brown Jr., pending in the 131st Judicial District Court, Bexar County, Texas, the Honorable Solomon
Casseb III presiding.
                                                                                    04-14-00804-CV


                                        BACKGROUND

       The State of Texas, through the Bexar County District Attorney’s office, filed three

applications for protective orders in three separate proceedings on behalf of Janessa Brown, a

victim alleging family violence by her former spouse, real party in interest Stephen F. Brown Jr.

The first, filed in May 2013 in Cause No. 2013-CI-07299, was dropped by the State at the victim’s

request and dismissed.

       Alleging Stephen was continuing to harass her, Janessa later returned to the district

attorney’s office seeking assistance in obtaining a protective order. The second application for

protective order, filed in August 2013 in Cause No. 2013-CI-13417, was based on the same factual

allegations as the first, and was denied by the trial court. While declining to grant the requested

protective order, the trial court did issue temporary orders and admonished Stephen to stay away

from Janessa or risk entry of a protective order.

       Janessa contacted the district attorney’s office again concerning additional acts allegedly

committed by Stephen on or about April 5, 2014. The third application for protective order, filed

April 10, 2014 in the suit underlying this mandamus proceeding, contained the same conduct

alleged in the first two, as well as allegations concerning the recent incident. Stephen filed his

original answer on April 21, which was a general denial. The trial court entered an ex parte

protective order and scheduled the matter for a full hearing on the merits.

       At the April 29 hearing on the State’s third application, after conferring with senior

prosecutors regarding potential criminal charges pending against Stephen, Watkins and Velez

advised the trial court that the State wished to drop the setting on the third application or,

alternatively, nonsuit the proceeding, as long as it was without prejudice to refiling. Counsel for

Stephen interjected that she would not accept a dismissal unless it was “with prejudice,” and that

she had affirmative claims for relief on file on behalf of Stephen. Counsel represented that an
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amended answer containing a claim for frivolous filing and request for sanctions had been filed

that morning, which needed to be set for hearing. The trial court signed an order granting the

State’s request for nonsuit and dismissing the third application for protective order without

prejudice. The order notes that Stephen, as the respondent, had a motion seeking affirmative relief

on file. The docket sheet reflects that on May 2, Stephen’s counsel filed a “motion to set affirmative

claims.”

       After a hearing on June 2, the trial court signed an order on June 12, in which it found the

State’s third application for protective order was “filed in an effort to harass the Respondent, to

cause unnecessary delay and to needlessly increase the cost of litigation.” The court ordered

relators to pay sanctions to opposing counsel in the amount of $1,950.00. The order recites that

the June 2 hearing was on “Respondent’s Motion to Set Respondent’s Affirmative Claims.”

       Relators filed a motion for new trial following the sanctions order and the trial court

subsequently issued an order on September 16 modifying the June order. The September order

contained additional findings and included the same award of $1,950.00 in attorney’s fees as

sanctions for filing a groundless application for the purpose of harassment. Relators challenge

these two orders in this mandamus proceeding.

                                            ANALYSIS

       Mandamus is an extraordinary remedy, available only when a trial court has clearly abused

its discretion and a party has no adequate remedy by appeal. In re Prudential Ins. Co. of Am.,
148 S.W.3d 124, 135-36
 (Tex. 2004) (orig. proceeding); Walker v. Packer,
827 S.W.2d 833, 839-40

(Tex. 1992) (orig. proceeding). Mandamus is appropriate where a trial court has issued an order

after the expiration of its plenary power because such orders are void. In re Brookshire Grocery

Co.,
250 S.W.3d 66, 68
 (Tex. 2008) (orig. proceeding) (citing In re Sw. Bell Tel. Co.,
35 S.W.3d 602, 605
 (Tex. 2000) (orig. proceeding)). When the trial court’s orders are void, mandamus relief
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is available regardless of whether there is an adequate remedy by appeal. Sw. Bell Tel. Co.,
35 S.W.3d at 605
; In re Mask,
198 S.W.3d 231, 233-34
 (Tex. App.—San Antonio 2006, orig.

proceeding).

       Pursuant to Rule 162 of the Texas Rules of Civil Procedure, ordinarily, a dismissal of one

party’s claims does not prejudice another party’s right to have a pending claim for affirmative

relief, such as a request for sanctions or attorney’s fees, heard and determined by the court. TEX.

R. CIV. P. 162. However, the other party’s request for affirmative relief must be “pending at the

time of dismissal” in order to survive a nonsuit. Id.; see Crites v. Collins,
284 S.W.3d 839, 842-43

(Tex. 2009) (motion for sanctions filed before order of dismissal remains pending after nonsuit).

Here, the clerk’s record provided to this court does not reflect that Stephen had any affirmative

claim for relief pending prior to the order of dismissal signed on April 29, 2014. Although counsel

represented that a claim for affirmative relief was contained in Stephen’s amended answer, there

is no file-stamped copy in the record and the trial court’s docket sheet does not reflect the filing of

an amended answer on behalf of Stephen.

       If there are no other affirmative claims for relief pending on behalf of another party when

the trial court grants a nonsuit and orders dismissal, the nonsuit is effective immediately and the

trial court’s dismissal order constitutes a final order. See Lehmann v. Har-Con Corp.,
39 S.W.3d 191, 200
 (Tex. 2001) (order determining the last pending claim is final). Because the record in this

case does not reflect any claims for relief pending prior to the State’s nonsuit being granted, the

April 29 order constitutes a final judgment. See Lehmann,
39 S.W.3d at 195
 (judgment disposing

of all pending parties and claims constitutes a final judgment); see also Park Place Hosp. v. Estate

of Milo,
909 S.W.2d 508, 510
 (Tex. 1995) (finality can be achieved by dismissal).

       Generally, a trial court retains jurisdiction over a case for only thirty days after the entry of

a final judgment, absent the filing of certain post-judgment motions which may extend the trial
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court’s plenary power. See TEX. R. CIV. P. 329b; Lane Bank Equip. Co. v. Smith S. Equip. Co.,
10 S.W.3d 308, 310
 (Tex. 2000). The court’s plenary power runs from the date the trial court signs

its final order. TEX. R. CIV. P. 329b(d), (e); Unifund CCR Partners v. Villa,
299 S.W.3d 92, 96

(Tex. 2009).

       The trial court’s April 29 order unequivocally dismisses the case from the trial court’s

docket. The record fails to reveal that any party filed any motion that would extend the trial court’s

plenary power within thirty days of the April 29 dismissal order. Therefore, the trial court’s

judgment of dismissal became final and the trial court lost plenary power over the parties and the

case thirty days later, on May 29. See TEX. R. CIV. P. 329b(d); Lane Bank Equip. Co.,
10 S.W.3d at 310
. After May 29, the trial court lacked jurisdiction to enter the orders challenged by this

mandamus proceeding.

       Because the challenged orders were entered after the expiration of plenary power, they are

void. Sw. Bell Tel. Co.,
35 S.W.3d at 605
; Scheel v. Alfaro,
406 S.W.3d 216, 226
 (Tex. App.—San

Antonio 2012, pet. denied) (no power to assess sanction after the expiration of plenary power).

Because our determination of this issue is dispositive of the relators’ right to mandamus relief, we

need not address the remaining arguments asserted in relators’ petition.

                                          CONCLUSION

       Based on the foregoing analysis, we hold the challenged orders awarding sanctions against

relators are void. Accordingly, we conditionally grant the petition for writ of mandamus and direct

the trial court to vacate its June 12 and September 16, 2014 orders in their entirety. The writ will

issue only if the trial court fails to comply within fifteen days from the date of this court’s order.

                                                   PER CURIAM




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