Most litigants are not happy with a Court’s ruling especially when a contested custody or property case is presented to a family law judge in Texas.
How much time do I have to file a Motion for a New Trial. A motion for a new trial must be filed before or within 30 days after the judgment or other order complained of is signed. Texas Rules of Civil Procedure Section 329b(a). Within that same time or 30 day period, a party may file one or more amended motions for a new trial without leave of court as long as the trial court has not already overruled an earlier motion for a new trial. Texas Rules of Civil Procedure Section 329b(b). With leave of the court, a party may file an amended motion even if th4e court has overruled an earlier motion for a new trial. However, this rule also applies to supplemental motions.
A court may not lengthen the period for taking any action under the Texas Rules of Civil Procedure relating to new trials except as stated in those rules. A court is without authority to grant leave to file an amended motion for new trial after this 30 day period. although a motion for new trial filed more than thirty days after the trial court signs its judgment is untimely, a trial court may, at its discretion, consider the grounds raised in an untimely motion and grant a new trial under its inherent authority before it loses plenary power.
A prematurely filed motion for a new trial is deemed to be filed on the date of, but subsequent to, the time that the court signs the judgment. The judgment date still serves as the date from which the appellate timetable begins.
The Texas Rules of Civil Procedure do require that a motion for a new trial be filed within 30 days of the judgment, however, the rules do not address the filing of a brief in support of the motion. Therefore, the attorney should consider filing such a brief if it is later determined that more detail or explanation is needed that was inadvertently omitted from the motion for a new trial.
What if I served the defendant with a citation by publication? A motion for a new trial after a citation by publication, if the defendant has not appeared, is timely if filed within 2 years after the judgment is signed. Texas Rules of Civil Procedure Section 329(a). However, the validity of an order terminating the parental rights of a person who is served by citation by publication is not subject to collateral or direct attack after the sixth month after the date the order was signed. Texas Family Code Section 161.211(b).
The Trial Court does have 30 days from the date a final order is signed, without a motion, to change any part of the order. Texas Rules of Civil Procedure Section 329b(d). This plenary power may be extended in certain instances. An order that purports to dispose of all issues and all parties is a final appealable order. Judicial action taken after the court’s jurisdiction over a cause has expired is a nullity. Only a motion for a new trial filed by a party of record automatically extends the trial court’s plenary power. A motion for a new trial filed by a nonparty is simply an unofficial plea to the trial court to exercise its discretion allowed under rule 320 to set aside the judgment during the court’s plenary power.
If a motion for a new trial is denied on the same day the judgment is signed, the trial court loses plenary power 30 days later unless another motion extending the plenary power is filed such as a motion to modify, correct, or reform the judgment.
The 30 day plenary power of the court is absolute in almost all cases. Litigants must be mindful that an appeal is not available for an indefinite time after a judgment is rendered by the trial court.