in Re Dilley Independent School District and Dr. Jack R. Seals, Jr.

No. 04-00-00120-CV In Re DILLEY INDEPENDENT SCHOOL DISTRICT and Dr. Jack R. Seals, Jr. Original Proceeding Related Trial Court No. 98-11-00315CVF From the 81st Judicial District, Frio County, Texas Honorable Olin B. Strauss, Judge Presiding(1) Opinion by: Paul W. Green, Justice Concurring opinion by: Alma L. López, Justice Sitting: Alma López, Justice Paul W. Green, Justice Sarah B. Duncan, Justice Delivered and Filed: June 28, 2000 WRIT OF MANDAMUS CONDITIONALLY GRANTED In this original proceeding, Relators, Dilley Independent School District (DISD) and Dr. Jack R. Seals, Jr., seek to vacate the trial court's judgment placing an expelled student in the DISD alternative education program during the period of his expulsion. DISD contends (1) the Amended Final Judgment is void because the court lost plenary power as soon as the motion for new trial was withdrawn, and (2) the trial court has no authority to order DISD to place a student in the alternative education program after the student is expelled pursuant to Tex. Educ. Code Ann. § 37.007 (Vernon Supp. 2000). We conditionally grant the writ of mandamus. Background Jose Sanchez was accused of setting fire to a school bus in the DISD bus yard. After a meeting with Jose's parents, Superintendent Jack R. Seals, Jr. expelled Jose from school pursuant to Tex. Educ. Code Ann. § 37.007(a)(2)(B). Jose and his parents appealed to the DISD Board. After a hearing, the Board upheld the expulsion. Domingo Sanchez, the real party in interest, then filed suit on behalf of Jose Sanchez (hereinafter referred to collectively as "the Sanchezes") with the district court in Frio County, appealing the decision of the DISD Board. On November 23, 1999, the Honorable Ron Carr signed a judgment upholding the DISD Board's decision. The Sanchezes filed a motion for new trial, arguing the Board failed to prove Jose's presence in the classroom threatened the safety of students or teachers or would be detrimental to the educational process, as required under § 37.006(d)(2). At a hearing on February 18, 2000, the Sanchezes' counsel withdrew the motion for new trial and made an oral motion for Judge Carr to modify the judgment and order Jose to alternative school under § 37.006. Judge Carr granted the oral motion and amended the prior judgment to include an order for DISD to admit Jose to the alternative education program. Standard of Review Mandamus issues only to correct a clear abuse of discretion or a violation of a duty imposed by law when there is no other adequate remedy at law. See Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). The trial court abuses its discretion when it fails to properly apply the law to the undisputed facts, when it acts arbitrarily or unreasonably, or when its ruling is based on factual assertions unsupported by the record. See Microsoft Corp. v. Manning, 914 S.W.2d 602, 607 (Tex. App.­Texarkana 1995, writ dism'd). Mandamus is available to challenge a void order of the trial court entered after its plenary jurisdiction has expired. J.A. Bitter & Assoc. v. Haberman, 834 S.W.2d 383, 384 (Tex. App.­San Antonio 1992, orig. proceeding). Trial Court Plenary Power DISD argues the trial court had no jurisdiction to modify the judgment after counsel for the Sanchezes withdrew the motion for new trial. We agree. If a party withdraws a motion for new trial, the period of time for the trial court's plenary power reverts back to thirty days from the date the judgment is signed. See Rogers v. Clinton, 794 S.W.2d 9, 11 (Tex. 1990, orig. proceeding) (interpreting Tex. R. Civ. P. 329b). The withdrawal of a motion for new trial is treated like a notice of nonsuit. It does not have to be approved or granted by the trial court; the withdrawal is effective immediately. See Rogers, 794 S.W.2d at 11. In this case, upon return from an off-the-record discussion in chambers, the trial judge recognized counsel for the Sanchezes, who stated, on the record: Your Honor, at this time I'd like to go ahead and withdraw the motion for a new trial and ask that the original order which was pursuant to Section 37.006 ­ Section (d)(1) and (2) be applied in this case, your Honor. And I'm asking that this Court go ahead and order that my client, Jose Domingo Sanchez, be removed from regular classroom and placed in alternative education program, Your Honor. When counsel for the Sanchezes withdrew the motion for new trial on the record in open court, the trial court lost plenary power to amend the judgment. The oral motion to modify could not extend the trial court's plenary power beyond thirty days from the date of judgment because the motion was neither in writing nor was it timely filed within thirty days of the date of judgment. See Tex. R. Civ. P. 329b(g). Conclusion Because the motion for new trial was withdrawn more than thirty days from the date the judgment was signed, the trial court had no jurisdiction to modify or amend the final judgment. We need not address whether the trial court had the authority to order DISD to admit Jose Sanchez into its alternative education program. We expect the district court will vacate the Amended Final Judgment within ten days. The writ will issue only if the court refuses to do so. PAUL W. GREEN, JUSTICE PUBLISH 1. The Honorable Olin B. Strauss is the proper respondent because he is the permanent judge of the 81st Judicial District Court, Frio County, Texas. See In re Acevedo, 956 S.W.2d 770, 772 n.1 (Tex. App.--San Antonio 1997, orig. proceeding). Relator, however, complains about the Visiting Judge, the Honorable Ron Carr, who presided over the case below.