# Tomas Gonzalez v. Department of Family and Protective Services > Texas Court of Appeals, 1st District (Houston) · May 3, 2012 URL: https://www.frixlaw.com/law-library/cases/3123598 ## Case - **Court:** Texas Court of Appeals, 1st District (Houston) - **Decided:** May 3, 2012 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3123598 ## Opinion text Opinion issued May 3, 2012 In The Court of Appeals For The First District of Texas ———————————— NO. 01-11-00205-CV ——————————— Tomas Gonzalez , Appellant V. Department of Family & Protective Services, Harris County Attorney's Office & William S. Cox , Appellees On Appeal from the 311th District Court Harris County, Texas Trial Court Case No. 2009-00394 MEMORANDUM OPINION This is a divorce case in which the Department of Family and Protective Services (DFPS) intervened, seeking sole managing conservatorship of three minor children based on allegations of abuse and neglect against their father, appellant Tomas Gonzalez. At issue here is whether the trial court retained plenary power more than thirty days after the final divorce decree was signed to adjudicate appellant’s request for sanctions against DFPS. We conclude that the trial court lacked plenary power to rule on request for sanctions, and we lack jurisdiction over appellant’s appeal. We therefore vacate the trial court’s order and dismiss this appeal. BACKGROUND Gonzalez moved to strike DFPS’s intervention in the divorce proceeding and moved for sanctions against DFPS, alleging that its pleadings against him were frivolous. On June 22, 2010, the trial court signed an order dismissing DFPS’s suit. On July 19, 2010, the trial court signed an agreed judgment adjudicating the issues in the underlying divorce proceedings. That judgment contained the following language: IT IS ORDERED AND DECREED that all relief requested in this case and not expressly granted is denied. This is a final judgment, for which let execution and all writs and processes to enforce this judgment issue. This judgment finally disposes of all claims and all parties and is appealable. Gonzalez signed this agreed judgment, expressly approving “as to both form and substance.” On August 16, 2010, the trial court held a hearing on Gonzalez’s motion for sanctions against DFPS, which it then adjourned until September 17, 2010. DFPS filed a plea to the jurisdiction alleging that the court lacked of plenary power and argued that the DEPS defendants were immune from suit under the doctrines of sovereign, official, and prosecutorial immunity. Gonzalez filed a response in opposition to the immunity plea to the jurisdiction and a motion for entry of judgment nunc pro tunc “to correct the clerical error in including the [finality] language relied upon now by [DFPS] to argue lack of jurisdiction.” The sanctions hearing was again continued and then reconvened on February 10, 2011. At that hearing, the trial court explained that, despite its jurisdictional concerns, it had allowed the parties to put on their evidence because it wanted the parties to have a complete record on appeal of the sanctions issues in case the court was wrong about its lack of jurisdiction. At that hearing, the court granted the plea to the jurisdiction, and denied Gonzalez’s request for judgment nunc pro tunc. Gonzalez filed an appeal “from the final judgment signed by th[e] Court on February 10, 2011.” JURISDICTION A. Finality of the Divorce Decree We review a trial court’s subject-matter jurisdiction de novo. Tex. Dep’t of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 226 (Tex. 2004). The issue of whether a judgment is final and appealable rests on the application of the principles announced in Lehmann v. Har-Con Corp. : [I]n cases in which only one final and appealable judgment can be rendered, a judgment issued without a conventional trial is final for purposes of appeal if and only if either it actually disposes of all claims and parties then before the court, regardless of its language, or it states with unmistakable clarity that it is a final judgment as to all claims and all parties. 39 S.W.3d 191 , 192 – 93 (Tex. 2001). In other words, “the language of an order or judgment may make it final, even though it should have been interlocutory, if that language expressly disposes of all claims and all parties.” Kleven v. Tex. Dep’t of Criminal Justice-I.D. , 69 S.W.3d 341, 344 (Tex. App.—Texarkana 2002, no pet.) (citing Lehmann , 39 S.W.3d at 195 ). “The intent to finally dispose of the case must be unequivocally expressed in the words of the order itself.” Id . “If the intent to dispose of the case is clear from the order, the order is final and appealable.” Id . “A judgment that grants more relief than a party is entitled to is erroneous and subject to reversal, but it is not, for that reason alone, interlocutory.” Id . The July 19, 2010 judgment in this case states that it is “a final judgment” and that it “finally disposes of all claims and all parties and is appealable.” While Gonzalez complains that the judgment cannot be final because it does not dispose of his claim for sanctions, we have expressly recognized that a judgment need not resolve a pending sanctions motion to be final. In re T.G. , 68 S.W.3d 171 , 179 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (citing Lane Bank Equip. Co. v. Smith S. Equip., Inc. , 10 S.W.3d 308, 312 (Tex. 2000)). Moreover, under Lehmann , this judgment is final because it states “with unmistakable clarity that it is a final judgment as to all claims and all parties.” 39 S.W.3d at 192 – 93. B. Plenary Power A trial court retains jurisdiction over a case for 30 days after it signs a final judgment or order. Tex. R. Civ. P. 329b(d). During this period, the trial court has plenary power to modify its judgment but, after the 30 days run, the trial court loses its plenary power and lacks jurisdiction to act in the matter. See generally Check v. Mitchell , 758 S.W.2d 755, 756 (Tex. 1988). [1] C. Order Granting Plea to the Jurisdiction “After a trial court loses plenary power . . . it has no authority to award sanctions.” Martin v. Tex. Dep’t of Family & Protective Servs. , 176 S.W.3d 390, 392 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (citing Scott & White Mem’l Hosp. v. Schexnider , 940 S.W.2d 594, 596 (Tex.1996)). The trial court’s February 10, 2011 order granting DFPS’s plea to the jurisdiction was signed more than thirty days after the court’s July 19, 2010 final judgment. It was thus signed after the trial court’s plenary period expired. “Judicial action taken after the trial court’s plenary power has expired is void.” Martin , 176 S.W.3d at 393 (citing State ex. rel Latty v. Owens , 907 S.W.2d 484, 486 (Tex.1995)). “An appellate court should declare post-plenary-power orders void and dismiss any appeal.” Id . at 394. The trial court correctly determined that it lacked jurisdiction over Gonzalez’s request for sanctions, but erred by entering an order granting the DFPS defendants’ plea to the jurisdiction after its plenary power had expired. That order is void. D. Order Denying Request for Nunc Pro Tunc Judgment Although the single issue statement in Gonzalez’s brief complains only about the trial court granting DFPS’s plea to the jurisdiction, an argument section of his brief is dedicated to the alternative argument that there is a clerical error in the judgment which, if corrected, would restore to the trial court the power to hear his request for sanctions. To the extent this is a complaint about the trial court’s denial of Gonzalez’s request for judgment nunc pro tunc, we lack jurisdiction to review that order. An order denying a motion for judgment nunc pro tunc is not a final, appealable order, Shadowbrook Apartments v. Abu-Ahmad , 783 S.W.2d 210, 211 (Tex. 1990); nor does it create an interlocutory appeal. Emerson v. Emerson , No. 03-04-00231-CV, 2004 WL 1066352 , at *1 (Tex. App.—Austin May 13, 2004, no pet.) (mem. op.); see also Tex. Civ. Prac. & Rem. Code Ann . § 51.014 (Vernon 2012). CONCLUSION The trial court’s order granting DFPS’s plea to the jurisdiction was entered outside the trial court’s jurisdiction and is thus void. We thus vacate the order and dismiss the appeal. Sherry Radack Chief Justice Panel consists of Chief Justice Radack and Justices Higley and Brown. [1] The trial court’s plenary power can be extended by the timely filing of an appropriate postjudgment motion. Tex. R. Civ. P. 329b. No such motion was filed in this case. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3123598. Public record. Not legal advice.