law-nunc-pro-tunc-NPT-order | What type of error supports correction via motion and order nunc pro tunc (NPT)?
APPELLATE CASE LAW ON NUNC PRO TUNC ORDERS
- CORRECTION OF CLERICAL VS. JUDICIAL MISTAKES
Clerical mistakes in a judgment may be corrected in open court, and the trial court may render judgment nunc pro
tunc according to the truth or justice of the case. Tex. R. Civ. P. 316. This may be done even after the expiration
of the court's plenary power. Tex. R. Civ. P. 329b(f). Judicial errors, however, may not be corrected after a trial
court's plenary jurisdiction expires. Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex. 1986). “A clerical error is a
mistake occurring in the reduction of the judgment to writing, the correction of which does not result from 'judicial
reasoning or determination,' but rather an examination of whether the writing properly reflects the judgment as
actually rendered." Burgess v. Burgess, 834 S.W.2d 538, 540 (Tex. App.-Houston [1st Dist.] 1992, no writ) (citing
Andrews v. Koch, 702 S.W.2d 584, 585 (Tex. 1986)). Judicial error is error that occurs in the rendering, as
opposed to the entering, of a judgment. Escobar, 711 S.W.2d at 231. A trial court may only correct by judgment
nunc pro tunc entry of a final written judgment that incorrectly states the judgment actually rendered. Id. A
judgment is “rendered" when the trial court's decision is announced either orally in open court or by memorandum
filed with the clerk. Reese v. Piperi, 534 S.W.2d 329, 330 (Tex. 1976); Delaup v. Delaup, 917 S.W.2d 411, 413
(Tex. App.-Houston [14th Dist.] 1996, no writ). A judge's docket notes or entries are some evidence of a rendered
judgment and its contents. Escobar, 711 S.W.2d at 231, 232 (considering judge's docket entry as some evidence
of a rendered judgment and its contents); see also Rush v. Barrios, 56 S.W.3d 88, 95-96 (Tex. App.-Houston [14th
Dist.] 2001, pet. denied) (stating that consideration of notes entered on docket sheets is appropriate in nunc pro
tunc proceedings).
In Interest of MV, MV and EV (Tex.App.- Houston [14th Dist.] Sep. 1, 2009)(Yates)
(child support arrearage based on nunc-pro-tunc judgment, amount of child support had not been filled in on the
original order) (effective date of nunc pro tunc judgment as to support amount) (clerical error vs. judicial error,
NPT order adding monthly amount to blank space on decree not deemed judicial error) (void judgments and
orders)
AFFIRMED: Opinion by Justice Brock Yates
Before Chief Justice Hedges, Justices Brock Yates and Frost
14-08-00418-CV In the Interest of M.V, M.V. and E.V.
Appeal from 311th District Court of Harris County
Trial Court Judge: DOUGLAS C. WARNE
Here, the original divorce decree ordered Valencia to pay monthly child support beginning June 1, 1994, but left
the space for the monthly amount owed blank. The judge's docket sheet notation - “C/S $500.00 per mo[.] beg[.]
June 1st, 94.” - is some evidence that the court actually rendered judgment ordering Valencia to pay $500 per
month in child support beginning June 1, 1994, which is the start date stated in the decree. See Escobar, 711 S.
W.2d at 231, 232. That evidence supports the trial court's implicit finding that the failure to fill in the space for the
amount of monthly child support was a mistake made in reducing the rendered judgment to a decree, i.e. a clerical
error, and not the result of judicial reasoning or determination. See Andrews v. Koch, 702 S.W.2d 584, 585 (Tex.
1986); see also Delaup, 917 S.W.2d at 412-13 (affirming judgment nunc pro tunc where evidence of judgment
actually rendered showed that “several key aspects" of the agreed settlement were omitted from the final divorce
decree). Because the evidence shows that the nunc pro tunc divorce decree corrected a clerical error in the
decree originally entered, the trial court did not err in granting the nunc pro tunc divorce decree. See Escobar,
711 S.W.2d at 231; Delaup, 917 S.W.2d at 412-413.
[1] Though the parties do not challenge the validity of the nunc pro tunc divorce decree, we will address this issue
as it is jurisdictional. See Barton v. Gillespie, 178 S.W.3d 121, 126 (Tex. App.-Houston [1st Dist.] 2005, no pet.)
(stating that a judgment nunc pro tunc correcting a judicial error after the trial court's plenary power has expired is
void) (citing Dikeman v. Snell, 490 S.W.2d 183, 186 (Tex. 1973)); Waite v. Waite, 150 S.W.3d 797, 800 (Tex. App.-
Houston [14th Dist.] 2004, pet. denied) (stating that appellate court has no jurisdiction over void judgment;
appellate court must simply declare such a judgment void and dismiss the appeal).
A court always has jurisdiction to determine its own jurisdiction. Houston Mun. Employees Pension Sys. v. Ferrell,
248 S.W.3d 151, 158 (Tex. 2007).
Hernandez v. Hernandez (Tex.App.- Houston [1st Dist.] Mar. 26, 2009)(Higley)
(OAG suit, child support, nunc pro tunc judgment vacated)
VACATE TC JUDGMENT AND DISMISS CASE: Opinion by Justice Higley
Before Chief Justice Radack, Justices Keyes and Higley
01-06-00901-CV George Hernandez v. Maria Guadalupe Hernandez
Appeal from 311th District Court of Harris County
Trial Court Judge: Hon. Doug Warne
Dissenting Opinion by Justice Keyes
Whitmire v. Lilly (Tex.App.- Houston [14th Dist.] Aug. 28, 2008)(Boyce)
(nunc pro tunc, NPT, void order vacated)
REVERSED AND RENDERED: Opinion by Justice Boyce
Before Chief Justice Hedges, Justices Brown and Boyce
14-07-00993-CV R.O. Whitmire v. Oran A. Lilly, Jr
Appeal from 155th District Court of Waller County
Trial Court Judge: Hon. Dan R. Beck
In Re Kenefick (Tex.App.- Houston [14th Dist.] Aug. 19, 2008)(Seymore)
(mandamus in family court case, order on post-divorce motion for clarification void, motion to compel)
GRANTED IN PART AND DENIED IN PART: Opinion by Justice Charles Seymore
Before Justices Fowler, Frost and Seymore
14-08-00203-CV In Re Brian Kenefick
Appeal from 308th District Court of Harris County
We conditionally grant the petition for a writ of mandamus with respect to the clarification order and direct the trial
court to vacate its February 14, 2008 clarification order. We deny the petition for writ of mandamus, without
prejudice, with respect to the order granting the motion to compel.
Trial Court Judge: Judge Georgia Dempster
Concurring Opinion by Justice Frost in In Re Kenefick (re: clarification order)