Appellees argue that First American's approval of the judgment means that it cannot appeal from the judgment because the judgment was entered by agreement and consent. The general rule is that a party may not attack a judgment to which he has agreed, absent allegation and proof of fraud, collusion, or misrepresentation. Bexar County Criminal Dist. Attorney's Office v. Mayo, 773 S.W.2d 642, 644 (Tex.App. — San Antonio 1989, no writ); Charalambous v. Jean LaFitte Corp., 652 S.W.2d 521, 525 (Tex.App. — El Paso 1983, writ ref'd n.r.e.). In this case, the question is whether a lawyer whose signature showed "APPROVED AS TO FORM AND SUBSTANCE" had agreed and consented to the judgment or approved the judgment only as to the form.
And our sister courts seem to agree that the phrase "Approved as to Form" does not create an agreed judgment. Cisneros v. Cisneros, 787 S.W.2d 550, 552 (Tex. App.—El Paso 1990, no writ) ("Approval as to form is a matter of professional courtesy not necessary to a valid judgment."); Johnson v. Rancho Guadalupe, Inc., 789 S.W.2d 596, 603 (Tex. App.—Texarkana 1990, writ denied) (op. on reh'g) (holding that if a judgment is approved as to form only it does not create an inference that the judgment was rendered by consent); Bexar Cty. Dist. Attorney's Office v. Mayo, 773 S.W.2d 642, 644 (Tex. App.—San Antonio 1989, no writ). As the San Antonio court explained, "One who approves a judgment as to form does not thereby give up the right to appeal.
In general, a party may not appeal from or attack a judgment to which he has agreed, absent allegation and proof of fraud, misrepresentation, or collusion. Henke v. Peoples State Bank of Hallettsville, 6 S.W.3d 717, 720 (Tex.App.-Corpus Christi 1999, pet dism'd w.o.j.); Bexar County Criminal Dist. Attorney's Office v. Mayo, 773 S.W.2d 642, 644 (Tex.App.-San Antonio 1989, no writ); Gillum v. Republic Health Corp., 778 S.W.2d 558, 562 (Tex.App.-Dallas 1989, no writ); Charalambous v. Jean Lafitte Corp., 652 S.W.2d 521, 525 (Tex.App.-El Paso 1983, writ ref'd n.r.e.). Therefore, absent allegation and proof of fraud, misrepresentation, or collusion, appellants would not be entitled to a new trial.
See First Nat'l Bank v. Fojtik, 775 S.W.2d 632, 633 (Tex. 1989); Casu v. Marathon Refining Co., 896 S.W.2d 388, 389-90 (Tex.App.-Houston [1st Dist.] 1995, writ denied) (op. on reh'g). In response to TCH's argument, appellant cites Oryx Energy Co. v. Union Nat'l Bank of Tex., 895 S.W.2d 409, 417 (Tex.App.-San Antonio 1995, writ denied); First Am. Title Ins. Co. v. Adams, 829 S.W.2d 356, 364 (Tex.App.-Corpus Christi 1992, writ denied); Bexar County Criminal Dist. Attorney's Office v. Mayo, 773 S.W.2d 642, 644 (Tex.App.-San Antonio 1989, no writ); Hill v. Bellville Gen. Hosp., 735 S.W.2d 675, 678 (Tex.App.-Houston [1st Dist.] 1987, no writ); Sigma Sys. Corp. v. Elec. Data Sys. Corp., 467 S.W.2d 675, 677 (Tex.Civ.App.-Tyler 1971, no writ); and Consol. Cas. Ins. Co. v. Jackson, 419 S.W.2d 232, 239 (Tex.Civ.App.-Houston [14th Dist.] 1967, writ ref'd, n.r.e.). We conclude appellant's reliance on these cases is misplaced.
To have a valid consent judgment, each party must explicitly and unmistakably give its consent. First Am. Title Ins. Co. v. Adams, 829 S.W.2d 356, 364 (Tex.App. — Corpus Christi 1992, writ denied); Bexar County Criminal Dist. Attorney's Office v. Mayo, 773 S.W.2d 642, 644 (Tex.App. — San Antonio 1989, no writ). Consent must exist at the very moment the trial court makes an agreement the judgment of the court. Sohocki v. Sohocki, 897 S.W.2d 422, 424 (Tex.App. — Corpus Christi 1995, no writ); Adams, 829 S.W.2d at 364.
The appellant has waived any right he may have had to complain about this procedure because the final judgment, approved by the appellant's counsel, specifically states that the court considered the bail bond. By approving the form of the order, the appellant has indicated that the written judgment accurately sets forth the court's ruling. Bexar County Criminal Dist. Atty. v. Mayo, 773 S.W.2d 642, 644 (Tex.App. — San Antonio 1989, no writ). But these actions do not foreclose his right to appeal; he may still disagree with the ruling and appeal it. Id.
Among those holding that approving a judgment as to form and substance creates a consent judgment that cannot be appealed are DeLee v. Allied Finance Co. of Dallas, 408 S.W.2d 245 (Tex.Civ.App.-Dallas 1966) ; Cisneros v. Cisneros, 787 S.W.2d 550, 552 (Tex.App.-El Paso 1990, no writ) (“Approval as to substance of a judgment is tantamount to an agreement by the signatory that the judgment meets all of the essential requirements. By Appellant's approval of the substance of the judgment we hold that Appellant has waived any error in the judgment ....”); Bexar County Criminal Dist. Attorney's Office v. Mayo, 773 S.W.2d 642, 644 (Tex.App.-San Antonio 1989, no writ) (“Consent must be explicitly and unmistakably given. The notation ‘Approved,’ standing alone, is too indefinite to justify declaring as a matter of law that a judgment is a consent judgment.
By Appellant's approval of the substance of the judgment we hold that Appellant has waived any error in the judgment . . . ."); Bexar County Criminal Dist. Attorney's Officev. Mayo, 773 S.W. 2d 642, 644 (Tex. App.--San Antonio 1989, no writ)("Consent must be explicitly and unmistakably given. The notation 'Approved,' standing alone, is too indefinite to justify declaring as a matter of law that a judgment is a consent judgment.
A statute which incorporates another statute by reference retains its scope even when the incorporated law expires or is repealed. Bexar County Crim. Dist. Attorney's Office v. Mayo, 773 S.W.2d 642, 643-44 (Tex.App. — San Antonio 1989, no writ); Falkner v. Allied Fin. Co., 394 S.W.2d 208, 214 (Tex.Civ.App. — Austin), writ ref'd n.r.e. per curiam, 397 S.W.2d 846 (Tex. 1965). Therefore, any court ordered supervisions which would have satisfied the terms of article 55.01 before the repeal of article 42.13 would satisfy article 55.01 after the repeal.
He simply indicates that the written judgment accurately sets forth the court's ruling; he may disagree with that ruling and may want to appeal it." Bexar Cnty. Crim. Dist. Attorney's Off. v. Mayo, 773 S.W.2d 642, 644 (Tex. App. 1989) (citation omitted). This Court recognized this point in Klein v. McIntyre, 966 So.2d 1252, 1256-57 (¶15) (Miss. Ct. App. 2007), holding that an order signed by counsel as "Approved as to Form Only" was not a consent judgment.