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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
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Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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On June 10,2013, Attorney received notice by telephone from

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On June 10,2013, Attorney received notice by telephone from Attorney General's Office that hearing set for tomorrow. Client & Attorney unable to attend b/c of short notice. Default judgmt obtained next day, June 11,2013. Motion for new trial set for Oct.29,2013.
Q: Won't Judge lose her penary powers by then, thus unable to make a ruling?
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

No, as long as there was a motion to vacate the default/new trial filed within the 10 days from entry of the judgment, the judge retains his powers to continue to hear the case. The issue is the date of filing of the pleadings objecting to the judgment.



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Customer: replied 3 years ago.


I believe one has thirty (30) days to file a motion for new trial. Are you saying that once a m/n/t has been timely filed the plenary powers time line will not apply?


 

Thank you for your response.

Once the motion was filed the plenary powers timeline is stopped until the motion is decided, that is correct.

The plenary power of the court can be extended by timely filing an appropriate post judgment motion, such as a motion for new trial or a motion to modify, correct, or reform the judgment. Lane Bank, 10 S.W.3d at 310. Filing such a motion extends the trial court's plenary power up to 75 days. Id.; TEX. R. CIV. P. 329b(c). "During this time, the trial court has plenary power to change its judgment."
Lane Bank, 10 S.W.3d at 310.

Filing a timeline-extending motion outside the court's plenary power does not revive or extend the court's plenary power. See Smith v. Comm'n for Lawyer Discipline, 42 S.W.3d 362, 363 (Tex. App.-Houston [14th Dist.] 2001, no pet.) (holding late-filed motion for new trial could not be considered by judge because plenary power had expired)
Customer: replied 3 years ago.


Is that 75 days from the date the m/n/t was filed?


Q: Isn't there an additional 30 day extension that can be added to the 75 days? If so, how does that come about?

Thank you for your response.

There is no additional 30 days. The 30 days is on the front end where there is 30 days to file the motion for new trial which extends the plenary power for "up to 75 days." So if the motion is filed on day 30 from the judgment, then the court has "up to 75 days" more, but if the motion is filed within 10 or 15 days of the judgment then the 75 days runs from that date of filing.

See:

RULE 329b. TIME FOR FILING MOTIONS
The following rules shall be applicable to motions for new trial and motions to modify, correct, or reform judgments (other than motions to correct the record under Rule 316) in all district and county courts:
(a) A motion for new trial, if filed, shall be filed prior to or within thirty days after the judgment or other order complained of is signed.
(b) One or more amended motions for new trial may be filed without leave of court before any preceding motion for new trial filed by the movant is overruled and within thirty days after the judgment or other order complained of is signed.
(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.
(d) The trial court, regardless of whether an appeal has been perfected, 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, regardless of whether an appeal has been perfected, 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, either by a written and signed order or by operation of law, whichever occurs first.
(f) On 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 Rule 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.
(g) A motion to modify, correct, or reform a judgment (as distinguished from motion to correct the record of a judgment under Rule 316), if filed, shall be filed and determined within the time prescribed by this rule for a motion for new trial and shall extend the trial court's plenary power and the time for perfecting an appeal in the same manner as a motion for new trial. Each such motion shall be in writing and signed by the party or his attorney and shall specify the respects in which the judgment should be modified, corrected, or reformed. The overruling of such a motion shall not preclude the filing of a motion for new trial, nor shall the overruling of a motion for new trial preclude the filing of a motion to modify, correct, or reform.
(h) If a judgment is modified, corrected or reformed in any respect, the time for appeal shall run from the time the modified, corrected, or reformed judgment is signed, but if a correction is made pursuant to Rule 316 after expiration of the period of plenary power provided by this rule, no complaint shall be heard on appeal that could have been presented in an appeal from the original judgment
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Customer: replied 3 years ago.


Thanks. So then it seems the 75 days begin to run on date the m/n/t was filed & not the date the judge signed the default judgment. Is this correct?

That is correct, the extra 75 days runs from the date the motion was filed for the rehearing or new trial.
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