Challenging Void Orders and Motion to Reinstate
Void orders of a trial court may occur in a number of different circumstances. The Corpus Christi Court of Appeals discusses one such circumstance in Silguero v. State.
The trial court dismissed the State's action for forfeiture for want of prosecution and the State timely filed a motion to reinstate, but the motion was not verified. More than 30 days after the dismissal, the trial court granted the motion to reinstate. The trial court subsequently rendered a judgment of forfeiture and the Silgueros filed an appeal as well as a petition for writ of mandamus, each asserting that the trial court's order of reinstatement was void.
The Court holds that the trial court's plenary power was not extended by the motion to reinstate because such a motion must either be verified or supported by an affidavit or other evidence serving as an adequate substitute (Note: the Court does not say what an adequate substitute might be). Because the State's motion did not satisfy this criteria, the motion did not extend plenary power and therefore the trial court did not have jurisdiction to sign its order of reinstatement, making the order void.
The Court also holds that a party affected by a void order may challenge the order by mandamus as the Silgueros did, but if the party also appeals, an appellate court may declare the order void in the appeal. The Court's opinion may be found at this link.
