Opinion
No. 05-04-01411-CV
Opinion issued July 7, 2005.
On Appeal from the 44th Judicial District Court Dallas County, Texas, Trial Court Cause No. 03-07940-B.
Dismissed.
Before Justices WRIGHT, BRIDGES, and FITZGERALD.
MEMORANDUM OPINION
Van Lee Brewer attempts to appeal the September 21, 2004 order dismissing this bill of review proceeding for want of prosecution. After reviewing the record, we conclude appellant's notice of appeal was not timely, and we dismiss for want of jurisdiction.
In September 1989, appellant was convicted of sexual assault. In 2001, appellant filed a motion requesting forensic DNA testing of biological material pursuant to article 64.01 of the Texas Code of Criminal Procedure. After testing, the trial court held a hearing and determined that the results of the post-conviction DNA testing were not favorable to appellant. Appellant then filed suit against appellees alleging they negligently destroyed material that may have contained DNA and presented false evidence to the trial court. On April 23, 2003, the trial court granted appellees' plea to the jurisdiction and motion to dismiss and dismissed the case. Our record does not show appellant filed a motion for new trial or attempted to appeal from that dismissal order.
Nevertheless, on August 4, 2003, appellant filed this bill of review proceeding. On February 24, 2004, the trial court sua sponte dismissed the case for failure to comply with section 14.004 of the Texas Civil Practices and Remedies Code. Two months later, on April 21, 2004, the trial court sua sponte vacated its February 24th order and reinstated the case. In August, the trial court sent appellant a letter informing him the case was set on September 20, 2004 for dismissal. The trial court subsequently signed an order dismissing the case on September 21, 2004. Appellant attempts to appeal from that order.
Section 14.004 governs affidavits or unsworn declarations of inability to pay for inmate litigation. See Tex. Civ. Prac. Rem. Code Ann. § 14.004 (Vernon 2002).
A trial court retains jurisdiction over a case for thirty days after it signs a final judgment or order. Tex. R. Civ. P. 326b(d). During this period, the trial court has plenary power to modify or vacate its judgment or final order, but, after the thirty days expires, the trial court loses its plenary power and lacks jurisdiction to act in the matter. See Check v. Mitchell, 758 S.W.2d 755, 756 (Tex. 1988). Judicial action taken after the trial court's plenary power has expired is void. See State ex. rel Letty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995).
Here, the trial court dismissed appellant's bill of review on February 24, 2004. Appellant did not file a motion to reinstate or otherwise extend the trial court's plenary power. Thus, the trial court's plenary power expired on March 25, 2004. All judicial actions in this case after that time, including both the April 24, 2004 order reinstating the case and the September 21, 2004 order dismissing the case for want of prosecution, are void.
Because the final order in this case was signed February 24, 2004, appellant's notice of appeal was due by March 25, 2004. See Tex.R.App.P. 26.1(a) (if appellant does not file a motion for new trial, motion to modify, motion to reinstate, or a request for findings of fact and conclusions of law, notice of appeal must be filed within thirty days after the judgment or other appealable order is signed). Appellant's notice of appeal was filed on September 29, 2004, well outside the time allowed. A timely notice of appeal is essential to invoke our appellate jurisdiction. See Tex.R.App.P. 25.1(b); In re A.L.B., 56 S.W.3d 651, 652 (Tex.App.-Waco 2001, no pet.). If the notice is untimely, we can take no action other than to dismiss the proceeding. A.L.B., 56 S.W.3d at 652.
Accordingly, we dismiss this case for want of jurisdiction.