Torres, as the petitioner in the Texas court, had the burden to allege facts establishing the Texas court's subject-matter jurisdiction. See In re S.A.H., 465 S.W.3d 662, 666 (Tex. App.—Houston [14th Dist.] 2014, no pet.); Barajas v. Santiago, No. 01-10-00914-CV, 2012 WL 760921, at *3 (Tex. App.—Houston [1st Dist.] Mar. 8, 2012, no pet.) (mem. op.). In her petition, Torres pleaded that E.B. resided in Texas and "[n]o court had continuing jurisdiction" of E.B. and there were "no court-ordered conservatorships, court-ordered guardianships, or other court-ordered relationships affecting [E.B.]."
See In reVaishangi, Inc., 442 S.W.3d 256, 260-61 (Tex. 2014) (orig. proceeding); In re S.A.H., 465 S.W.3d 662, 665 (Tex. App.—Houston [14th Dist.] 2014, no pet.). Audrey also asserts that Craig's declaratory-judgment action and contractual defenses were impermissible collateral attacks on the property division stated in the 1998 decree, which Craig did not appeal and which was presumptively valid.
The trial court's order, however, is void because it was made while the trial court did not have subject-matter jurisdiction over the case. See In re S.A.H., 465 S.W.3d 662, 665 (Tex. App.-Houston [14th Dist.] 2014, no pet.) (stating that a trial court's order is void if made when the trial court lacked subject-matter jurisdiction.).
Once plenary power has expired, a trial court's jurisdiction to reform its judgment cannot be vested by party agreement or waiver. SeeIn re Vaishangi, Inc. , 442 S.W.3d 256, 260–61 (Tex. 2014) (orig. proceeding) (per curiam) ; see alsoIn re Russell , 556 S.W.3d 451, 454 (Tex. App.—Houston [14th Dist.] 2018, orig. proceeding) ; In re S.A.H. , 465 S.W.3d 662, 665 (Tex. App.—Houston [14th Dist.] 2014, no pet.). While a trial court cannot modify or set aside its judgment after its plenary power expires, it may at any time enter a nunc pro tunc judgment to "correct a clerical error in the record of a judgment."
We address the second issue first because if the trial court lacked subject-matter jurisdiction, the final order would be void. See PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 273 (Tex. 2012); In re S.A.H., 465 S.W.3d 662, 665 (Tex. App.—Houston [14th Dist.] 2014, no pet.); see also Rusk State Hosp. v. Black, 392 S.W.3d 88, 103 (Tex. 2012) (subject-matter jurisdiction can be raised at any time). Ramirez asserts that the Harris County trial court lacked jurisdiction because the case in Montgomery County was pending when the Harris County case was filed, the LaCombes did not have "actual care, control, and possession" of J.R. immediately preceding the filing of the original petition, and Harris County was an improper venue.
SeeIn re Vaishangi, Inc. , 442 S.W.3d 256, 260–61 (Tex. 2014) (orig. proceeding) (per curiam); In re S.A.H. , 465 S.W.3d 662, 665 (Tex. App.—Houston [14th Dist.] 2014, no pet.). After the trial court’s plenary power expires, it may not set aside its judgment except by timely bill of review.
Accordingly, although we presume the judgment is valid, "we may look beyond its face to determine whether the record affirmatively demonstrates that the trial court lacked jurisdiction." PNS Stores, Inc. , 379 S.W.3d at 273 ; see alsoAlfonso , 251 S.W.3d at 53–55 (reviewing affidavit and testimony from underlying proceeding in determining whether record affirmatively showed lack of jurisdiction); In re S.A.H. , 465 S.W.3d 662, 664–65, 667 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (looking beyond trial court’s finding that "it has jurisdiction of this case and of all the parties" to determine whether record affirmatively demonstrated trial court lacked subject-matter jurisdiction under UCCJEA). In this case, the trial court found in the agreed termination order that it had "jurisdiction of this case and of all the parties and that no other court had continuing, exclusive jurisdiction of this case."
Even after the expiration of plenary power over a judgment, a trial court still may sign an order declaring the judgment to be void because the trial court lacked subject-matter jurisdiction to render the judgment. See In re Martinez, 478 S.W.3d 123, 126 (Tex. App.—Houston [14th Dist.] 2015, orig. proceeding); In re S.A.H., 465 S.W.3d 662, 665-667 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (affirming order in which the trial court declared that its prior final judgment was void for lack of subject-matter jurisdiction based on a collateral attack filed in same case more than five years after rendition of judgment). The Supreme Court of Texas also has indicated that a collateral attack is available if there was "a complete failure or lack of service" that violates due process.
See Tugman, 106 U.S. at 122-23, 1 S. Ct. at 60-61 (stating that, even if a party participates in state court proceedings without objecting to the state court's lack of subject-matter jurisdiction because of a removal to federal court and no remand, the party has not waived its complaint that the state court lacked jurisdiction); In re Crawford & Co., 458 S.W.3d 920, 928, n.7 (Tex. 2015) (holding that a party cannot waive a complaint regarding the trial court's lack of subject-matter jurisdiction); Glassman v. Goodfriend, 347 S.W.3d 772, 783 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) (en banc) (stating that subject-matter jurisdiction cannot be conferred by consent or waiver); Univ. of Tex. Health Science Center at Houston v. Cheatham, No. 14-14-00628-CV, 2015 WL 3878111, at *2, n.4 (Tex. App.—Houston [14th Dist.] June 23, 2015, no pet.) (holding that prerequisites to subject-matter jurisdiction of the trial court are never presumed and cannot be waived) (mem. op.); In re S.A.H., 465 S.W.3d 662, 665 (Tex. App.—Houston [14th Dist.] 2014, no pet) (stating that subject-matter jurisdiction is essential to a court's power to decide a case and cannot be conferred by consent, estoppel, or waiver). If the trial court fails to note its lack of subject-matter jurisdiction and no one raises the issue until long after substantial litigation, the court and the litigants may have lost valuable time and resources, but the loss does not change the result — the proceedings are void for lack of subject-matter jurisdiction.
g the judgment to be void because the trial court lacked subject-matter jurisdiction to render the judgment. See Tex. R. Civ. P. 329b(f) (stating that “[o]n expiration of the time within which the trial court has plenary power, a judgment cannot be set aside by the trial court except by bill of review for sufficient cause, filed within the time allowed by law; provided that the court may at any time correct a clerical error in the record of a judgment and render judgment nunc pro tunc under [Texas] Rule [of Civil Procedure] 316, and may also sign an order declaring a previous judgment or order to be void because signed after the court's plenary power had expired”); Middleton, 689 S.W.2d at 213–14 (stating that, notwithstanding the language of Rule 329b(f), a trial court may declare a prior judgment void and set it aside, after expiration of plenary power and without using the bill-of-review procedure, if the trial court lacked subject-matter jurisdiction to render the prior judgment); In re S.A.H., 465 S.W.3d 662, 665–667 (Tex.App.–Houston 14th Dist. 2014, no pet.) (affirming order in which the trial court declared that its prior final judgment was void for lack of subject-matter jurisdiction based on a collateral attack filed in same case more than five years after rendition of judgment); In re Stern, 436 S.W.3d 41, 43–48 (Tex.App.–Houston 14th Dist. 2014, orig. proceeding [mand. dism'd] ) (denying mandamus relief as to order in which trial court declared that its prior final judgment in the case was void based on the court's lack of subject-matter jurisdiction, after expiration of the trial court's plenary power and without using the bill-of-review procedure); Parker v. Dennis, No. 14–12–00085–CV, 2013 WL 5346417, at *1–3 (Tex.App.–Houston 14th Dist. Aug. 27, 2013, no pet.) (mem.op.)