Summary
holding that judgment suspending lawyer from practicing law for three years with "first thirty days being active suspension" that also provided specific dates of active suspension spanning total of thirty-one days was properly corrected by nunc pro tunc to specify that active suspension period was actually thirty-one days, to harmonize with dates of suspension "clearly specified" in original judgment
Summary of this case from Thomas & Lewin Assocs., Inc. v. Tex. Health & Human Servs. Comm'nOpinion
No. 05-02-01636-CV
Opinion issued April 16, 2003
On Appeal from the 134th District Court, Dallas County, Texas, Trial Court Cause No. 00-00529-G
Before JUSTICES JAMES, BRIDGES, and RICHTER
DISMISSED
MEMORANDUM OPINION
By its "Judgment of Partially Probated Suspension" dated March 2, 2001, the trial court, among other things, suspended Rowena Daniels from the practice of law for three years, with the first thirty days being active suspension and the remaining thirty-five months being probated. The judgment specifically provided that the period of active suspension would begin on March 5, 2001 and continue through April 4, 2001. In addition, the judgment imposed certain terms and requirements during the period of probated suspension.
On July 2, 2001, the Commission for Lawyer Discipline filed a motion to revoke Daniels' probation. On July 11, 2001, Daniels filed a motion for judgment nunc pro tunc in which she argued the March 2, 2001 judgment contained a clerical error: the judgment stated Daniels was actively suspended for thirty days but then indicated the active suspension was to last from March 5, 2001 and continue through April 4, 2001, a period of thirty-one days. See Footnote 1 On September 20, 2001, the trial court entered an order revoking Daniels' probation and imposing a three-year suspension. Appellant did not appeal from either the September 20, 2001 order or the prior judgment entered March 2, 2001. Instead, Daniels persisted by various means in her attempt to obtain a judgment nunc pro tunc. Finally, on November 15, 2002, the trial court signed a "Judgment Nunc Pro Tunc Vacating Prior Judgment and Correcting Clerical Errors" in which it vacated the March 2, 2001 judgment and entered judgment nunc pro tunc specifying a thirty-one-day period of active suspension. This appeal followed.
The Commission filed a motion to dismiss this appeal for lack of jurisdiction in which it argues Daniels' appeal should be dismissed because she is attempting to appeal from a judgment nunc pro tunc entered outside the trial court's plenary power. The Commission notes Daniels is complaining about matters related to her suspension from the practice of law even though she did not bring a direct appeal from either the March 2, 2001 judgment or the September 20, 2001 order. In her brief, Daniels argues the November 15, 2002 judgment nunc pro tunc vacated the trial court's March 2, 2001 judgment, and any orders based on that judgment, namely, the September 20, 2001 order, also ceased to exist. Daniels further argues the trial court had an additional thirty-day period of plenary power after signing the judgment nunc pro tunc. We disagree.
After a judgment has become final, the trial court may only correct clerical errors by nunc pro tunc judgment and may not correct judicial errors. Andrews v. Koch, 702 S.W.2d 584, 585 (Tex. 1986). A clerical error is one which does not result from judicial reasoning or determination. Id. When a prior judicial determination is evidenced, but the signed judgment inaccurately reflects the true decision of the court, the error is clerical and may be corrected. Id. at 586. Whether an error is clerical or judicial is a question of law. Tex. Dep't Pub. Safety v. Moore, 51 S.W.3d 355, 358 (Tex.App.-Tyler 2001, no pet.).
Here, whether or not Daniels relied on the erroneous "thirty-day" language or mistakenly thought she could file suit on behalf of a client on the thirty-first day following her suspension, we conclude the "thirty-day" language was a clerical error not the result of judicial reasoning or determination. See Andrews, 702 S.W.2d at 585. Although the judgment referred to "thirty days," the judgment clearly specified the period of active suspension would begin on March 5, 2001 and continue through April 4, 2001. Therefore, the trial court had the power to enter a judgment nunc pro tunc correcting the clerical error outside the period of its plenary power. See Guteirrez v. Gutierrez, 86 S.W.3d 721, 726 (Tex.App.-El Paso 2002, no pet.) (purpose of judgment nunc pro tunc is to correct clerical error in judgment after court's plenary power has expired).
However, the trial court lacked the power to vacate or otherwise alter its former judgment. See id. at 726-27. As a result, the trial court's November 15, 2002 judgment nunc pro tunc effectively corrected the "thirty-day" clerical error but, to the extent it purported to vacate any prior order or judgment, was of no effect. Because appellant did not timely appeal from the court's original March 2, 2001 judgment or the September 20, 2001 order, we lack jurisdiction over this appeal. See Tex.R.App.P. 26.1.
Accordingly, we GRANT the Commission's motion to dismiss, and we DISMISS this appeal for lack of jurisdiction. See Tex.R.App.P. 42.1(a).