What is the litigation takeaway from In re E.R.F.?

A nonsuit is a hard jurisdictional stop: if the opposing party has not already filed a live claim for affirmative relief, the case is over and the court cannot issue post-dismissal temporary custody/possession orders once plenary power runs. To preserve (or obtain) temporary relief, get an affirmative counterclaim on file before the nonsuit—or file a new SAPCR/parentage case. Void post-plenary orders are immediately mandamusable without proving an inadequate appellate remedy.

What is the summary of In re E.R.F.?

In a parentage action, the alleged father nonsuited his petition and the trial court signed an order granting the nonsuit. Because the mother had not filed any counterclaim or other pleading seeking affirmative relief at the time of the nonsuit, the nonsuit extinguished the case. Under Rule 329b, the trial court’s plenary jurisdiction expired 30 days after the signed nonsuit order. The mother later filed a motion for temporary orders and the trial court held a hearing and orally announced temporary possession-and-access rulings, later reducing them to a written temporary order. The Fourth Court of Appeals held the trial court lacked jurisdiction to issue any substantive temporary possession/access orders after plenary power expired; both the oral pronouncements and the later written temporary orders were void. The court granted mandamus relief and ordered the void temporary orders set aside.

In Texas civil cases, when does a plaintiff’s nonsuit become effective and end the case?

Under Texas Rule of Civil Procedure 162, a plaintiff may nonsuit at any time before introducing all of its evidence, and the nonsuit extinguishes the action the moment it is filed. If the defendant has not asserted a claim for affirmative relief, the plaintiff’s right to nonsuit is unqualified. See Tex. R. Civ. P. 162; Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).

Does a Texas trial court have jurisdiction to enter substantive orders after a case is nonsuited?

Generally no. Once a nonsuit is filed and no affirmative claims remain pending, the trial court’s authority is limited to collateral matters (like costs or attorney’s fees) within its remaining plenary power; substantive merits orders entered after plenary jurisdiction expires are void. See Tex. R. Civ. P. 329b(d); Goodyear Dunlop Tires N. Am., Ltd. v. Gamez, 151 S.W.3d 574, 593 (Tex. App.—San Antonio 2004, no pet.); State ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995).

How long does a Texas trial court retain plenary power after signing an order dismissing a case, and what happens when it expires?

Under Texas Rule of Civil Procedure 329b(d), the trial court generally retains plenary power for 30 days after the judgment (including an order granting a nonsuit) is signed. After plenary power expires, the judgment becomes final and any attempted modification or substantive ruling is a nullity and void. See Tex. R. Civ. P. 329b(d); Times Herald Printing Co. v. Jones, 730 S.W.2d 648, 649 (Tex. 1987) (per curiam); Goodyear, 151 S.W.3d at 593.

Can a defendant or responding party file a new motion for temporary orders after the petitioner nonsuits a SAPCR or parentage-related case in Texas?

Not in the extinguished cause once the nonsuit ends the action and the court’s plenary power has expired. If no affirmative claim for relief was on file at the time of the nonsuit, later-filed requests for substantive relief (including temporary orders) are outside the trial court’s post-nonsuit jurisdiction and any resulting orders are void. See Tex. R. Civ. P. 162; Tex. R. Civ. P. 329b(d); Travelers, 315 S.W.3d at 862.

What counts as a “claim for affirmative relief” that can keep a Texas case alive after a plaintiff nonsuits?

A plaintiff’s nonsuit under Texas Rule of Civil Procedure 162 is not absolute if the defendant has asserted a claim for affirmative relief; such a claim can remain pending and allow the court to proceed on it. Conversely, if no affirmative claims are on file when the nonsuit is filed, the case is extinguished and the court’s continuing authority is limited and time-bound. See Tex. R. Civ. P. 162; In re Greater Houston Orthopaedic Specialists, Inc., 295 S.W.3d 323, 325 (Tex. 2009) (quoting BHP Pet. Co. v. Millard, 800 S.W.2d 838, 840 (Tex. 1990)).

Is mandamus available in Texas to set aside a trial court order entered after the court loses jurisdiction?

Yes. Mandamus is proper when a trial court issues an order beyond its jurisdiction, because such an order is void ab initio; in that circumstance, the relator need not show an inadequate appellate remedy. See In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000); In re Panchakarla, 602 S.W.3d 536, 539 (Tex. 2020).

Can a Texas appellate court review the merits of a void trial court order?

No. When an order is void for lack of jurisdiction, appellate courts generally do not reach the underlying merits; the proper remedy is to declare the order void and set it aside. See Freedom Communications, Inc. v. Coronado, 372 S.W.3d 621, 624 (Tex. 2012).

In re E.R.F. | Texas Family Law Powerhouse

In re E.R.F., 04-26-00142-CV, March 25, 2026.

On appeal from 45th Judicial District Court, Bexar County, Texas

Synopsis

The Fourth Court of Appeals held that once the relator nonsuited his parentage action and no counterclaim for affirmative relief was pending, the case was extinguished and the trial court’s plenary jurisdiction expired 30 days after the nonsuit order. Temporary possession-and-access rulings issued after that point—including oral pronouncements later reduced to writing—were void for lack of jurisdiction and were set aside by mandamus.

Relevance to Family Law

This decision is a jurisdictional tripwire for Texas family-law litigators because it confirms that “temporary orders” are not a free-standing vehicle once the live controversy is gone. In SAPCRs, parentage actions, and divorce cases with conservatorship issues, a nonsuit (or other case-ending event) can collapse the court’s power to enter substantive custody/possession orders unless an opposing party has a pending claim for affirmative relief that survives the nonsuit. If you are trying to preserve temporary relief, you must ensure a live pleading is on file before the nonsuit—otherwise, post-dismissal temporary orders are not merely erroneous; they are void and mandamusable.

Case Summary

Fact Summary

Relator filed a petition to adjudicate parentage of the child in March 2025. On June 27, 2025, he filed a nonsuit; the trial court signed an order granting the nonsuit on July 3, 2025. At the time the nonsuit was filed and granted, the child’s mother (real party in interest) had not asserted any claim for affirmative relief—no counterpetition, no SAPCR counterclaim, and no independent request that would survive dismissal of relator’s petition.

After the nonsuit, Mother filed a motion for temporary orders on August 7, 2025. The trial court conducted a hearing on September 10, 2025, heard testimony, admitted evidence, and announced oral temporary orders addressing possession and access. The court later signed written temporary orders on October 20, 2025, reflecting those substantive rulings.

Relator sought mandamus relief, arguing that the nonsuit extinguished the case and that the trial court’s plenary power lapsed 30 days after the nonsuit order—making the later temporary orders void.

Issues Decided

Whether the trial court retained plenary jurisdiction to issue temporary possession and access orders after relator nonsuited his parentage action when no counterclaim for affirmative relief was pending.
If plenary jurisdiction had expired, whether the trial court’s post-nonsuit temporary orders (oral and written) were void and subject to mandamus.

Rules Applied

Tex. R. Civ. P. 162 (Nonsuit): A plaintiff’s right to nonsuit is “unqualified and absolute” absent a pending claim for affirmative relief by the opposing party.
Effect of nonsuit: A case is extinguished when the nonsuit is filed. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).
Plenary power: Trial court plenary jurisdiction generally expires 30 days after the judgment/order is signed. Tex. R. Civ. P. 329b(d).
Post-plenary actions are void: Orders entered after plenary jurisdiction expires are void and a nullity. Times Herald Printing Co. v. Jones, 730 S.W.2d 648, 649 (Tex. 1987) (per curiam); State ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995).
Mandamus for void orders: Mandamus is proper for orders beyond jurisdiction; an adequate appellate remedy need not be shown when the order is void. In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000); In re Panchakarla, 602 S.W.3d 536, 539 (Tex. 2020).

Application

The Fourth Court treated the nonsuit as case-extinguishing because no claim for affirmative relief was pending when the nonsuit was filed or when the court signed the nonsuit order. That mattered: absent a surviving affirmative claim, there is no live controversy in which to anchor new substantive rulings.

From that procedural posture, the court moved directly to plenary power. With the nonsuit order signed July 3, the trial court retained only limited post-judgment jurisdiction for a short period, and its plenary jurisdiction expired 30 days later. Mother’s temporary-orders motion was not filed until August 7—after plenary power had already lapsed—so the trial court had no jurisdiction to entertain it. Because jurisdiction was lacking at the time of the September hearing and the October signed order, both the oral temporary rulings and the later written temporary orders were void ab initio. The court emphasized that it could not reach the merits of void orders; the only proper relief was to declare them void.

Holding

The court granted mandamus relief because the relator’s nonsuit extinguished the parentage action and no affirmative claims were pending that could keep the case alive. As a result, the trial court’s plenary jurisdiction expired 30 days after the nonsuit order, leaving it without jurisdiction to issue substantive temporary possession-and-access orders thereafter.

The court declared void all substantive orders entered after plenary power expired—expressly including the trial court’s oral temporary orders pronounced at the September hearing and the subsequent written temporary orders signed in October. The consolidated companion proceeding was dismissed as moot in light of the voidness ruling and mandamus grant.

Practical Application

For Texas family-law litigators, In re E.R.F. is less about “temporary orders” and more about pleading posture and jurisdictional sequencing. A nonsuit can be an efficient off-ramp in parentage actions and SAPCR-adjacent disputes, but it is also a hard stop for the trial court’s power to make substantive custody/possession decisions—unless another party has already placed an affirmative claim on file that survives dismissal.

Common litigation scenarios where this matters:

Parentage actions filed strategically to obtain temporary possession/access: If the petitioner nonsuits to avoid an adverse ruling (or to change venue/timing), the court’s power to impose a post-nonsuit possession schedule evaporates absent a surviving counterpetition.
Divorce cases with custody issues: If one spouse nonsuits a petition (or the case is dismissed) and no counterpetition for divorce/SAPCR affirmative relief remains, the court cannot later “clean things up” with temporary conservatorship orders; those orders are vulnerable to immediate mandamus as void.
SAPCR modifications and enforcement-adjacent maneuvering: A party cannot rely on a later-filed motion for temporary orders to revive a case that has been extinguished. The affirmative claim must exist at the time of nonsuit (or the court’s dismissal) to preserve post-dismissal jurisdiction.
Oral pronouncements are not a safe harbor: Even if the court hears evidence and announces relief, if jurisdiction is absent, the oral orders and the later written order are both nullities.

Strategically, the opinion arms relators with a clean mandamus path: when the court acts outside plenary jurisdiction, you do not need to fight about harm, adequacy of appeal, or the merits of the schedule—voidness does the work.

Checklists

Preserve Jurisdiction Before a Nonsuit Lands

File a counterpetition/counterclaim that seeks affirmative relief (not merely defensive pleadings) before the nonsuit is filed or granted.
Confirm the affirmative pleading is on file (accepted by the clerk) and not merely circulated or tendered.
Ensure the pleading requests relief that would keep the controversy alive (e.g., SAPCR conservatorship/possession/support relief; divorce counterpetition; parentage-related affirmative requests).
If you anticipate a nonsuit, request an expedited hearing to address whether any claims remain live and to clarify the court’s jurisdictional posture on the record.

Challenge Post-Nonsuit Temporary Orders (Mandamus Readiness)

Calendar the plenary-power deadline: 30 days from the signed nonsuit order (absent any extending motions).
Obtain the docket sheet, nonsuit filing, and signed nonsuit order to prove the extinguishing event and timing.
Pin down the dates of the complained-of actions (hearing date for oral orders; signing date for written orders).
Frame the issue as jurisdictional voidness (not “abuse of discretion” on the merits), citing Sw. Bell, Panchakarla, and Latty.
Request a declaration that the orders are void and a writ directing the trial court to vacate them.

Avoid the “Late Temporary Orders” Trap

Do not assume a post-dismissal “temporary orders” motion can create a new case; it cannot.
If you need immediate custody/possession relief after a dismissal, file an appropriate new SAPCR or parentage action (or ensure an existing live case) rather than moving in an extinguished cause.
Treat oral rulings skeptically: if jurisdiction is questionable, press the issue immediately because “reducing it to writing later” will not cure the defect.
When negotiating agreed temporary orders, confirm there is a live pleading and jurisdiction—an agreed void order is still void.

Citation

In re E.R.F., Nos. 04-25-00570-CV & 04-26-00142-CV (Tex. App.—San Antonio Mar. 25, 2026) (mem. op.) (orig. proceeding) (per curiam).

Full Opinion

Read the full opinion here

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In re E.R.F.

Litigation Takeaway