NO. 74,334




Keasler, J., filed this concurring opinion joined by Keller, P.J., and Hervey, J.


I join the Court's opinion but write separately to elaborate some on the notion of "plenary jurisdiction."

The trial court relied on Rule 329b(d) of the Rules of Civil Procedure as the source for its "plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment within thirty days after the judgment is signed." (1) We have previously recognized that Rule 329b(e) is "inapplicable" in a criminal case, (2) and the same should certainly be true for Rule 329b(d).

But we have also recognized that trial courts do have "plenary power" to alter their orders. (3) The question is, what does this "plenary power" encompass, how long does it last, and does it apply in this case, where the trial court attempted to vacate its previous dismissal order after Donaldson's probation had already expired?

In State v. Bates, we acknowledged former Rules of Appellate Procedure 30, 33, and 36, which permitted a trial court "to modify, correct or set aside judgments and orders through motions for new trial, motions to arrest judgment and motions for judgment nunc pro tunc." (4) We noted that Rule 36 in particular vested a court "with the authority to correct mistakes or errors in a judgment or order after the expiration of the court's plenary power, via entry of a judgment nunc pro tunc." (5) The substance of those rules is now located in Rules 21, 22 and 23. Though the phrase "plenary power" is no longer used, the concept is the same: the trial court has some power to act in a case after judgment is entered. But that "plenary power," under the Rules, exists for a limited time.

In Cobb, the judge argued that he could grant a motion for new trial outside the 75-day time limit provided in the Rules because of his "plenary power." (6) We rejected this contention, explaining that the former Rule 31(e) required that if a motion for new trial was not ruled on within 75 days, it was overruled by operation of law. (7) Similarly, we held in Awadelkariem v. State that a judge may "freely rescind" its ruling on a motion for new trial as long as he acts within the 75-day time limit provided by the Rules of Appellate Procedure. (8) Cobb and Awadelkariem make clear that, to the extent that a judge has plenary power over a proceeding, that power is limited by the Rules of Appellate Procedure and by statute. Plenary power does not create jurisdiction where none exists under the law; instead, it is a phrase used to describe "a court's full and absolute power over the subject matter and the parties in a case," (9) which only exists as defined by statute or rule.

In this case, no statute or rule conferred any jurisdiction on the trial court. The trial court's jurisdiction over Donaldson ceased once Donaldson's probation expired. (10) The judge could not create "plenary jurisdiction" where none existed. As a result, the judge lacked jurisdiction to vacate the prior dismissal order, and Donaldson is entitled to habeas relief.

Finally, even if a trial court's "plenary jurisdiction" could create jurisdiction where none exists and could give a judge authority to rule in a criminal case after the defendant's probation had expired, that jurisdiction would, at the very least, be limited to the trial court's term. In Williams v. State, (11) we stated that a trial court has full power over its orders during the term of court in which they are made and may correct or modify them during that term. (12) In Cardwell v. State, (13) we stated "that the trial court has jurisdiction of its orders, judgments, and decrees during the term of court during which the orders, judgments, and decrees were entered, with the power to dispose of them as right and justice might suggest."

So the trial court's power to vacate its order, if it had the power at all, was required to be exercised within the same "term of court." In this case, however, the court's attempt to vacate the dismissal order was not within the same term of court. The dismissal order was entered on April 14, 1999. The Government Code stipulates that in the 31st Judicial District Court of Wheeler County, a new term of court begins on the fourth Monday in April. (14) In this case, then, a new term of court began on April 26, 1999. The trial court's attempt to vacate its dismissal order occurred on May 12, 1999, after the new term of court had begun. As a result, even if the court had plenary power to enter this order, which I doubt, those powers expired on April 25, two and a half weeks before the judge tried to vacate the order.

With these comments, I join the Court's opinion.

DATE DELIVERED: October 2, 2002


1. Tex. R. Civ. Pro. 329b(d).

2. State ex rel. Cobb v. Godfrey, 739 S.W.2d 47, 49 (Tex. Crim. App. 1987).

3. State v. Bates, 889 S.W.2d 306, 309 (Tex. Crim. App. 1994).

4. Id.

5. Id.

6. Cobb, 739 S.W.2d at 48.

7. Id. at 48-49.

8. 974 S.W.2d 721, 728 (Tex. Crim. App. 1998).

9. Black's Law Dictionary 689 (7th ed. abridged 2000).

10. See Ex parte Fulce, 993 S.W.2d 660, 662 (Tex. Crim. App. 1999); Art. 42.12.

11. 170 S.W.2d 482, 145 Tex. Crim. 536 (1943).

12. Williams, 170 S.W.2d at 486.

13. 44 S.W.2d 681, 682, 119 Tex. Crim. 186 (Tex. Crim. App. 1931).

14. Tex. Gov't Code 24.133(b)(5).