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737 S.W.2d 588

Docket No. 04-87-00356-CV.

Garza v. Gonzalez

Adriana Elisa GARZA, Relator, v. Honorable Charles A. GONZALEZ, Respondent.

Texas Court of Appeals, 4th District (San Antonio)

Decided July 15, 1987.

Texas Court of Appeals, 4th District (San Antonio) · decided 1987-07-15

Key passage — most relied on by later courts

“The following rules shall be applicable to motions for new trial and motions to modify, correct, or reform judgments ... [[Image here]] (c) In the event an amended or original motion for new trial or a motion to modify, correct or reform a judgment is not determined by written order signed within seventy-five days after the judgment was signed, it shall be considered overruled by operation of law on expiration of that period. (d) The trial court, ... has plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment within thirty days after the judgment is signed. (e) If a motion for new trial is timely filed by any party, the trial court, ... has plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment until thirty days after all such timely filed motions are overruled....”

quoted by 1 later decision, including Carrillo v. Fruehauf Corp.

“... that a judge cannot set aside an order granting a new trial and, by such action, reinstate the judgment which he has previously set aside. No statute or rule authorizes such action....”

quoted by 1 later decision, including Carrillo v. Fruehauf Corp.

Relies on Fulton v. Finch

Good law ✅— No negative treatment on recordhow we know

Decided 1987-07-15

How this case has been cited

Cited by 3 later decisions — most recently November 2001

3 state decisions

10198719902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1Rodolfo Munoz, San Antonio, for relator.

¶2Edel P. Ruiseco, San Marcos, for Jose and Cardina Valencia.

¶3Before CADENA, C.J., and CANTU, and REEVES, JJ.

¶4

OPINION

¶5REEVES, Justice.

¶6This is an original mandamus proceeding. Respondent, the Honorable Charles Gonzalez, Judge of Bexar County Court at Law Number 2, signed a final judgment on February 10, 1987, in a forceable entry and detainer suit in which relator, Adriana Elisa Garza, was plaintiff. That suit is styled Garza v. Valencia, and bears the trial court cause number 167,969. Relator filed a timely motion for a new trial which was granted by Judge Gonzalez in an order signed March 13, 1987. Seven days thereafter the defendants, Jose and Cardina Valencia, filed a motion for rehearing of relator's motion for new trial. On May 21, 1987, 100 days after final judgment had been signed, Judge Gonzales signed an order rescinding his March 13 order and reinstating his judgment of February 10.

¶7Relator seeks a writ of mandamus to compel Judge Gonzalez to set aside his order of May 21 on the ground that he had lost jurisdiction to enter it. The writ will conditionally issue.

¶8TEX.R.CIV.P. 329b(c) provides "in the event an original or amended motion for new trial—is not determined within 75 days after the judgment was signed, it shall be considered overruled by operation of Law." A court, after granting a motion for trial, cannot set aside the motion after the expiration of the 75 day period. Fulton v. Finch,162 Tex. 351, 346 S.W.2d 823, 826 (1961).

¶9The order of May 21 is void and must be disregarded. Therefore, the order of March 13 granting the motion for new trial is a valid and subsisting order which must be given the effect of reinstating the case upon respondent's docket. We are confident that Judge Gonzalez will vacate his May 21 order and proceed to try the case. The writ of mandamus will issue only if he fails to do so.

¶10CADENA, Chief Justice, concurring.

¶11I agree that a judge cannot set aside an order granting a new trial and, by such action, reinstate the judgment which he has *589 previously set aside. No statute or rule authorizes such action. Rule 329b(c) does no more than provide that if there is no action on a motion for new trial within the time specified, the motion will be considered overruled by operation of law. In this case the motion for new trial was determined within the 75-day period. It was granted. The 75-day provision of the rule is clearly inapplicable and irrelevant.

¶12CANTU, J., joins in this concurring opinion.

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