In Re Alejandro Velasquez v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: April 9, 2025
• Docket: 04-25-00091-CV
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas

MEMORANDUM OPINION No. 04-25-00091-CV

IN RE Alejandro VELASQUEZ

Original Mandamus Proceeding 1

Opinion by: Lori Massey Brissette, Justice

Sitting: Rebeca C. Martinez, Chief Justice Lori I. Valenzuela, Justice Lori Massey Brissette, Justice

Delivered and Filed: April 9, 2025

PETITION FOR WRIT OF MANDAMUS DENIED

Relator Alejandro Velasquez filed a petition for writ of mandamus challenging the trial

court’s order granting, in part, a new trial following a bench trial in a matter involving his divorce

from Real Party in Interest Jessica Vedia. Because we hold the trial court’s order is not void and

decline to extend mandamus review to orders granting a new trial after a bench trial, we deny the

petition for writ of mandamus.

BACKGROUND

This matter involves a divorce between Velasquez and Vedia. After a two-day bench trial,

the trial court issued a Final Decree of Divorce on August 9, 2024. On September 9, 2024, Vedia

filed a motion for new trial asking for a new trial. The trial court held a hearing on the motion for

This proceeding arises out of Cause No. 2023FLA001862C3, styled Vasquez v. Vedia, pending in the 1

County Court at Law No 2, Webb County, Texas, the Honorable Victor Villarreal presiding. 04-25-00091-CV

new trial on September 26, 2024. On November 14, 2024, Vedia filed a motion for entry of

judgment and request for expedited hearing. The docket sheet shows that this motion was “sent to

court coordinator for further process.” On November 15, 2024, Vedia filed a proposed order on her

motion for new trial which reflected the agreements read into the record by the parties at the

September hearing. This proposed order was again “sent to court coordinator for further process.”

Velasquez represents in his petition that in late December 2024, he sold the home at 201 Vintage

Lane in reliance on the trial court’s failure to take action on the new trial motion and his belief the

trial court no longer had plenary power to rule on it. Then, on January 7, 2025, Vedia filed a second

motion for entry of judgment, which again was “sent to court coordinator for further process.”

Finally, on January 13, 2025, the trial court filed its order granting, in part, the motion for new

trial. The order itself shows it was signed October 18, 2024 and filed on January 13, 2025 with the

district court clerk.

Velasquez urges on appeal that the trial court’s order was entered after plenary power

expired and is, therefore, void. He further argues the trial court abused its discretion by granting a

new trial without adequately explaining its reasoning. Finally, Velasquez contends the trial court

abused its discretion by granting a new trial on a claim that was not pleaded or tried by consent.

ORDER NOT VOID

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, 70

(Tex. 2008) (orig. proceeding); In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998) (orig.

proceeding). Where the trial court has issued a void order, a relator need not show he lacks an

adequate remedy by appeal, and mandamus relief is appropriate. Dickason, 987 S.W.2d at 571.

Under Texas Rule of Civil Procedure 329b, a new trial motion is overruled by operation of

law if it “is not determined by written order signed within seventy-five days after the judgment

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was signed.” TEX. R. CIV. P. 329b(c). Further, the trial court retains plenary power to grant a new

trial for thirty days after the new trial motion is overruled “either by a written and signed order or

by operation of law.” TEX. R. CIV. P. 329b(e).

Here, the final decree of divorce was signed on August 9, 2024. The motion for new trial

was timely filed September 9, 2024. And, the trial court’s order granting, in part, a new trial was

signed on October 18, 2024, within the trial court’s plenary power. See TEX. R. CIV. P. 329(b).

Velasquez points to the fact that the order was not filed with the clerk until January 2025.

But, Rule 329b refers to the signing of the order, not the filing of it with the clerk. See TEX. R.

CIV. P. 329b(c) (“In the event an original or amended 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.”); see also TEX. R. CIV. P. 306a (“The date of judgment or order is signed as shown

of record shall determine the beginning of the periods prescribed by these rules for the court’s

plenary power to grant a new trial . . . .”); cf. In re M & O Homebuilders, Inc., 516 S.W.3d 101,

109 (Tex. App.—Houston 2017, orig. proceeding) (concluding amended order correcting judicial

error void and abuse of discretion where order signed after plenary power expired); Jauregui

Partners, Ltd. v. Grubb & Ellis Com. Real Est. Servs., 960 S.W.2d 334, 335 (Tex. App.—Corpus

Christ-Edinburg 1997, pet. denied) (concluding order signed and issued after trial court lost

plenary power of no effect). Further, the trial court made it clear what occurred here in its

scheduling order, issued on the same date as its new trial order—January 13, 2025—explaining:

“The Court . . . having reviewed the casefile and procedural history it became apparent to the Court

that the Court’s October order—although ruled, signed, and ordered—was not filed.” Thus, this is

no more than an inadvertent delay in filing the order with the clerk and does not change the fact

that the order was signed prior to the motion being overruled by operation of law. See In re Taylor,

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113 S.W.3d 385, 393 (Tex. App.—Houston [1st Dist.] 2003, orig. proceeding) (holding trial court

could sign new order after plenary power expired because original order signed within plenary

power was lost).

Based on the record before us, we hold the trial court’s order, signed within plenary power

but filed with the clerk after plenary power had expired, is valid and not void.

NO MANDAMUS REVIEW FOR NEW TRIAL ORDER AFTER A BENCH TRIAL

Velasquez also urges this court to grant mandamus relief because the trial court failed to

set forth its reasons for granting a new trial. He further argues that mandamus relief is appropriate

because the trial court improperly granted a new trial. Both arguments beg the question of whether

mandamus relief is proper when a trial court grants a new trial after a bench trial, as opposed to a

jury trial.

For a very long time, there was no real opportunity to review an order granting a new trial

other than when the order was void or when jury answers to special issues were in conflict. See,

e.g., Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 563 (Tex. 2005); Johnson v. Fourth

Court of Appeals, 700 S.W.2d 916, 918 (Tex. 1985). But, in 2009, the Texas Supreme Court

expanded this review by granting mandamus relief and directing the trial court to set forth its

reasoning for granting a new trial “in the interests of justice and fairness” after a jury trial. In re

Columbia Medical Center of Los Colinas, 290 S.W.3d 204, 206, 215 (Tex. 2009). The Columbia

court began its opinion by saying, “The Texas Constitution provides that the right of a trial by jury

‘shall remain inviolate.’” Id. at 206 (quoting TEX. CONST. art. 1, § 15). It reiterated that concern

when it held, “[o]n balance, the significance of the issue—protection of the right to jury trial—

convinces us that the circumstances are exceptional and mandamus review is justified.” Id. at 209

(citing In re Prudential, 148 S.W.3d 124, 136 (Tex. 2004)). Finally, the Columbia court recognized

trial courts have significant discretion in granting new trials, but stated, “such discretion should

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not, and does not, permit a trial judge to substitute his or her own views for that of the jury without

a valid basis.” Columbia, 290 S.W.3d at 212.

Following Columbia, the Texas Supreme Court set forth the standard a trial court must

meet when setting aside a jury’s verdict, rejecting the mere recitation in the order that the jury’s

finding was “against the great weight and preponderance of the evidence.” In re United

Scaffolding, Inc., 377 S.W.3d 685, 688–89 (Tex. 2012) (providing reasons set forth by trial court

must be legally appropriate and specific enough to indicate trial court did not parrot pro forma

template). Finally, in In re Toyota Motor Sales, the Texas Supreme Court allowed a merits-based

review of the trial court’s reasoning in granting a new trial after a jury verdict. 407 S.W.3d 746,

758 (Tex. 2013) (providing appellate courts must be able to conduct merits-based review of new

trial orders because if trial court’s articulated reasons not supported by underlying record, new trial

order cannot stand).

In all of these cases, though, the court reiterates “the considerable discretion afforded trial

judges in ordering new trials.” United Scaffolding, 377 S.W.3d at 687; Columbia, 290 S.W.3d at

210; see also Johnson, 700 S.W.2d at 917. “That rule has both jurisprudential justifications (trial

judges actually attend the trial and are best suited to evaluate its deficiencies), and practical

justifications (most trial judges are understandably reluctant, after presiding over a full trial, to do

it all over again).” United Scaffolding, 377 S.W.3d at 687. However, nothing in those cases give

any indication that the holdings providing for review of a new trial order after a jury trial apply to

a trial court’s decision to set aside its own decision after a bench trial. In fact, Justice Lehrmann,

in her concurrence to the majority in Toyota, explained:

In affirmatively answering that question and conditionally granting mandamus relief to require such specificity, we recognized the significant departure from our longstanding mandamus jurisprudence, which had to that point “approved the practice of trial courts failing to specify reasons for setting aside jury verdicts” and “preclude[d], for the most part, appellate review of orders granting new

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trials.” [Columbia, 290 S.W.3d] at 208. Both Columbia and our subsequent opinion in In re United Scaffolding, Inc., 377 S.W.3d 685 (Tex. 2012), focused on transparency in the context of setting aside jury verdicts, noting the importance of ensuring that trial courts do not impermissibly substitute their judgment for that of the jury. [United Scaffolding, Inc., 377 S.W.3d] at 688; Columbia, 290 S.W.3d at 214. This concern, however, is not present with respect to new-trial orders that do not set aside a jury verdict, such as orders issued after a bench trial or setting aside a default judgment. Accordingly, in my view, the Columbia line of cases does not apply to such orders.

407 S.W.3d at 762-63 (Lehrmann, J. concurring) (citations omitted).

Following that reasoning, other Texas courts of appeals have refused to allow merits-based

review of orders granting a new trial after a bench trial. See, e.g., In re Foster, No. 05–15–00179–

CV, 2015 WL 682335, at *1 (Tex. App.—Dallas Feb. 18, 2015, orig. proceeding) (mem. op.)

(declining to extend mandamus review to grant of new trial order after bench trial); In re Cort, No.

14–14–00646–CV, 2014 WL 4416074, at *2 (Tex. App.—Houston [14th Dist.] Sept. 9, 2014, orig.

proceeding) (mem. op.) (declining to extend Columbia Medical to bench trial); In re Old Am.

County Mut. Fire Ins. Co., No. 13–13–00644–CV, 2014 WL 1633098, at *10 (Tex. App.—Corpus

Christi-Edinburg Apr. 23, 2014, orig. proceeding) (mem. op.) (holding “the necessity to safeguard

the constitutional right to a trial by jury” which constitute exceptional circumstances warranting

mandamus review is not at issue in a case involving a bench trial); see also In re Procesos

Especializados en Metal, S.A. de C.V., 2014 WL 4347724, at *3 (Tex. App.—San Antonio Sept. 3,

2014, orig. proceeding) (mem. op.) (declining to extend mandamus review to include review of

orders granting new trial after a default judgment).

In the absence of further direction from the Texas Supreme Court expanding mandamus

review to orders granting new trials rendered after bench trials, we decline to conduct a merits-

based review of a trial court’s order granting a new trial in a bench trial. See Foster, 2015 WL

682335, at *1; Cort, 2014 WL 4416074, at *2; Procesos Especializados en Metal, S.A. de C.V.,

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2014 WL 4347724, at *3; Old Am. County Mut. Fire Ins. Co., 2014 WL 1633098, at *10; see also

Toyota Motor Sales, 407 S.W.3d at 762-63 (Lehrmann, J. concurring).

For these reasons, we deny Velasquez’s petition for writ of mandamus.

Lori Massey Brissette, Justice

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