Unreported / Non-Citable
Background
Johnny Partain, proceeding pro se, appealed a July 1, 2026 order in an underlying Hidalgo County case. That order vacated a July 29, 2025 order that had, among other things, granted Partain’s motion to dismiss his case as moot. The appellate clerk warned Partain that the July 1 order appeared unappealable and directed him to cure the jurisdictional defect within ten days, but he did not do so.
The court initially dismissed the appeal and vacated the July 1 order after concluding that it was void because the trial court had signed it outside its plenary power. On the State’s motion for rehearing, however, the court reconsidered that conclusion in light of Texas Rule of Civil Procedure 329b(f), which permits a trial court at any time to declare void a prior judgment or order signed after its plenary power expired. The court granted rehearing, withdrew its August 31, 2026 opinion and judgment, and issued a substitute opinion.
The Court’s Holding
The court held that the July 1 order was neither a final judgment nor an appealable interlocutory order. By vacating the prior order, it returned the parties to their pre-judgment positions and did not dispose of every pending claim and party. It also contained no language clearly and unequivocally disposing of all claims and parties.
The court further concluded that the July 1 order appeared to have been issued under Rule 329b(f). No statute authorizes an appeal from that type of order, and it does not constitute a final judgment. Because the court lacked appellate jurisdiction, it dismissed Partain’s appeal for want of jurisdiction without vacating the trial court’s order and dismissed all pending motions as moot.
Key Takeaways
- An order merely setting aside or vacating a prior judgment generally is not final because it restores the case to its pre-judgment posture.
- A vacatur order is not final unless it also clearly disposes of all claims and all parties.
- An order issued under Texas Rule of Civil Procedure 329b(f) is not independently appealable absent statutory authorization.
Why It Matters
The substitute opinion distinguishes between an appellate court’s jurisdiction over an appeal from a void order and a trial court’s authority under Rule 329b(f) to declare an earlier order void after plenary power has expired. That distinction changed the proper disposition from vacating the challenged order and dismissing the appeal to dismissing the appeal alone.
The decision also reinforces that parties cannot immediately appeal every order undoing an earlier judgment. Unless the order finally resolves the case or falls within a statute authorizing interlocutory review, appellate courts lack jurisdiction to consider it.