Opinion
NO. 01-17-00645-CV
12-12-2017
IN RE J. A., Relator
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
Relator, J. A., has filed a petition for a writ of mandamus seeking to compel the respondent juvenile district court judge to vacate his "Nunc Pro Tunc Order to Correct Judgment," signed on June 23, 2017, and his "Order on Motion to Dismiss for Lack of Jurisdiction and Motion for Entry Nunc Pro Tunc," signed on July 28, 2017, in this underlying juvenile delinquency proceeding. This Court requested and received a response by real party in interest The State of Texas. The Juvenile and Capital Advocacy Project filed an amicus brief and relator filed a reply. We conditionally grant the petition.
The underlying case is In the Matter of J. A., Cause No. 2015-056979J, in the 315th District Court, Harris County, Texas, the Honorable Michael Schneider presiding.
Background
J.A. was born on November 29, 1998, and was to turn nineteen on November 29, 2017. Real party in interest, The State of Texas, alleged in a grand-jury approved, determinate sentence petition that J.A. had committed delinquent conduct, namely first-degree aggravated robbery with a pellet gun, on September 27, 2015. On July 19, 2016, J.A., with counsel, signed a stipulation of evidence judicially confessing to aggravated robbery and entered a plea without an agreed recommendation, roughly four months shy of J.A.'s 18th birthday. When discussing possible sentences, J.A.'s counsel reminded the respondent, the Honorable Michael Schneider, that a determinate probation could continue in the juvenile court until J.A. reached the age of 19, and the court agreed, stating that it may have incorrectly stated 18 earlier at the hearing.
At the end of the July 19, 2016 hearing, the respondent orally ruled that the "[d]isposition will be an 8-year determinate probation, . . . and we're going to return every four to six months while this court has jurisdiction of [J.A.] to see if you know how to follow the rules or not." The court's oral ruling did not mention whether it would have jurisdiction of J.A. until J.A.'s 18th or 19th birthday. However, the sentence-portion of the judgment actually stated that J.A. "now comes under the jurisdiction of said Court and shall continue its care, guidance, and control from 7/19/2016 or until said Respondent becomes eighteen (18) years of age unless discharged prior to and subject to subsequent and additional proceedings. . . ."
On December 1, 2016, two days after J.A.'s 18th birthday on November 29, 2016, the State filed a petition to modify disposition alleging that J.A. had committed a terroristic threat on November 11, 2016, before J.A. turned 18. On June 13, 2017, J.A. filed a motion to dismiss the modification for want of jurisdiction, claiming that the probation terminated on J.A.'s 18th birthday. The juvenile court held a hearing on J.A.'s motion to dismiss on June 15, 2017. The parties made legal arguments over whether the court retained jurisdiction, and the State argued that the judgment contains clerical errors that can be corrected via a nunc pro tunc order. The court took the motion under consideration.
On June 16, 2017, the State filed a motion for nunc pro tunc claiming that clerical errors in the original judgment did not comport with the oral pronouncement of the disposition. On June 29, 2017, the juvenile court held an evidentiary hearing on J.A.'s motion to dismiss and the State's motion for nunc pro tunc. The State noted that J.A. had continued to appear throughout the probationary period including after J.A.'s 18th birthday, indicating that J.A. understood that the court would continue supervision until J.A.'s 19th birthday.
The State called Claudia Marquez, a district court clerk, as the only witness. Marquez testified that she had not read the reporter's record of the sentence, the judge had not told her to put the probation ends at "18 years" on the judgment, that their office used an outdated form judgment database, which had a 2013 revision date, and that the individual clerk has no power to change the judgment beyond adding certain information. Marquez also testified that their software had recently been updated due to this case, and that determinate judgments now show that the court has jurisdiction until a juvenile's 19th birthday.
At the end of the hearing, the respondent stated his personal recollections of his rendition that he understood he would supervise J.A. until J.A.'s 19th birthday, and the inclusion of "18 years" on the judgment was merely a clerical error because the judgment was generated by the individual clerk, not the judge. On June 23, 2017, the respondent signed a "Nunc Pro Tunc Order to Correct Judgment" that replaced the relevant references in the judgment from "18th birthday" with "19th birthday." On July 28, 2017, the respondent denied J.A.'s motion to dismiss and granted the State's motion for nunc pro tunc judgment by signing an "Order on Motion to Dismiss for Lack of Jurisdiction and Motion for Entry Nunc Pro Tunc."
On August 16, 2017, J.A. filed this mandamus petition contending, among other things, that the juvenile court's nunc pro tunc orders in a modification proceeding brought after J.A.'s probation period expired, when J.A. turned 18, should be vacated as void. J.A. further claims that, if this Court denies this petition, J.A. will have an inadequate remedy on appeal because the juvenile court may proceed on the State's petition to modify for the alleged violation of J.A.'s probationary terms, incarcerate J.A., and then the continuation of the modification action will be in the adult district court while the void orders would be from the juvenile court that no longer has jurisdiction.
With his petition, J.A. also filed a motion to stay all proceedings pending this Court's disposition of this petition because J.A. could have been subject to additional void orders or incarceration. This Court's August 22, 2017 Order granted J.A.'s motion to stay and requested a response from the State.
On September 11, 2017, the State filed its response, primarily contending that J.A. had an adequate appellate remedy for the nunc pro tunc judgment. The State also alleged that there was no abuse of discretion because the respondent's personal recollections supported the finding of clerical error.
On September 21, 2017, David R. Dow, of the Juvenile and Capital Advocacy Project of the University of Houston Law Center, filed an amicus brief. The amicus contends that, because the juvenile court lost jurisdiction over J.A. when the probation ended, it was without jurisdiction to modify the judgment because that was judicial error.
On November 10, 2017, the State filed a motion to reconsider this Court's grant of temporary relief, contending that the juvenile court will lose jurisdiction on November 28, 2017, because J.A. turns 19 the next day. This Court's November 20, 2017 Order granted the State's motion and lifted the stay to allow the juvenile court to conduct all proceedings, if any.
Standard of Review
Mandamus is an extraordinary remedy, available only when the relator can show both that: (1) the trial court clearly abused its discretion or violated a duty imposed by law and (2) there is no adequate remedy by way of appeal. In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). Mandamus relief is proper when the trial court issues a void order, and the relator need not demonstrate the lack of an adequate remedy by appeal. See In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding); In re Flores, 111 S.W.3d 817, 818 (Tex. App.—Houston [1st Dist.] 2003, orig. proceeding) (per curiam).
Discussion
A. The Respondent Clearly Abused His Discretion
The respondent clearly abused his discretion by signing the June 23, 2017 "Nunc Pro Tunc Order to Correct Judgment" and the July 28, 2017 "Order on Motion to Dismiss for Lack of Jurisdiction and Motion for Entry Nunc Pro Tunc." These nunc pro tunc orders were void because they corrected a substantive error that required judicial interpretation, which was a judicial error, not a clerical one.
A trial court generally retains jurisdiction over a case for thirty days after it signs a final judgment, during which time the trial court has plenary power to change its judgment. In re Patchen, No. 01-16-00947-CV, 2017 WL 976077, at *2 (Tex. App.—Houston [1st Dist.] Mar. 14, 2017, orig. proceeding) (per curiam) (mem. op.) (citing, inter alia, TEX. R. CIV. P. 329b(f)). "Nevertheless, a trial court may always correct clerical errors by using a judgment nunc pro tunc." In the Interest of A.M.R., 528 S.W.3d 119, 122 (Tex. App.—El Paso 2017, no pet.) (citing TEX. R. CIV. P. 316; 329b(f)). "A judgment nunc pro tunc allows a trial court to correct a clerical error, but not a judicial error, in the judgment after the court's plenary power has expired." Id. (citing, inter alia, Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex. 1986) and TEX. R. CIV. P. 316).
This Court has summarized the distinction between judicial and clerical errors:
A clerical error is a discrepancy between the entry of a judgment in the record and the judgment that was actually rendered. Barton [v. Gillespie, 178 S.W.3d 121, 126 (Tex. App.—Houston [1st Dist.] 2005, no pet.)]. Rendition occurs when the trial court's decision is officially announced either by a signed memorandum filed with the clerk of the court or orally in open court. Id.In re D & KW Family, L.P., No. 01-11-00276-CV, 2012 WL 3252683, at *5 (Tex. App.—Houston [1st Dist.] Aug. 9, 2012, orig. proceeding) (mem. op.) (internal quotation marks omitted).
Unlike with clerical errors, the trial court cannot correct a judicial error after the expiration of plenary power by entering a judgment nunc pro tunc. Escobar, 711 S.W.2d at 231. A judicial error is one that arises from a mistake of law or fact that requires judicial reasoning to correct and it occurs in the rendering, rather than the entering of the judgment. Barton, 178 S.W.3d at 126. "Thus, even if the court renders incorrectly, it cannot alter a written judgment which precisely reflects the incorrect rendition." Escobar, 711 S.W.2d at 232. Stated another way, if the judgment entered is the same as the judgment rendered, regardless of whether the rendition was incorrect, a trial court has no nunc pro tunc power to correct or modify the entered judgment after its plenary [power] expires. Hernandez v. Lopez, 288 S.W.3d 180, 187 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (op. on rehearing) [(emphasis in original)]. A judgment rendered to correct a judicial error after plenary power has expired is void. Id. at 185 (citing Dikeman v. Snell, 490 S.W.2d 183, 186 (Tex. 1973)).
The party claiming clerical error must show, by clear and convincing evidence, that "the trial judge intended the requested result at the time the original judgment was entered." A.M.R., 528 S.W.3d at 122 (citation omitted). "This high burden insures that trial judges can correct their clerical mistakes" and prevents using a judgment nunc pro tunc as "a vehicle to circumvent the general rules regarding the trial court's plenary power if the court changes its mind about its judgment." Id. "The determination as to whether an error is clerical is a question of law, and the trial court's finding in this regard is not binding on an appellate court." In the Matter of M.A.V., No. 04-01-00533-CV, 2002 WL 662246, at *1 (Tex. App.—San Antonio Apr. 4, 2002, pet. denied) (citation omitted). When deciding whether an error in a judgment is clerical or judicial, the court must look to the judgment actually rendered and not the judgment that should have been rendered. A.M.R., 528 S.W.3d at 123 (citing, inter alia, Escobar, 711 S.W.2d at 232). "Evidence may be in the form of oral testimony of witnesses, written documents, previous judgments, docket entries, or the judge's personal recollection." Hernandez, 288 S.W.3d at 185 (citation omitted).
Here, because the respondent's June 23, 2017 "Nunc Pro Tunc Order to Correct Judgment" and corresponding July 28, 2017 "Order on Motion to Dismiss for Lack of Jurisdiction and Motion for Entry Nunc Pro Tunc" were both signed beyond the juvenile court's plenary power, which ended thirty days after the determinate sentencing judgment/order was signed on July 19, 2016, they were void unless they corrected clerical, not judicial, error. See Escobar, 711 S.W.2d at 231; Dikeman, 490 S.W.2d at 186 (judgment rendered to correct judicial error after plenary power has expired is void); see also In the Matter of R.G., 388 S.W.3d 820, 826 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (granting habeas relief because "juvenile court abused its discretion and exceeded its plenary power when it vacated its order granting relator habeas corpus relief more than six months after granting the relief").
At the nunc pro tunc hearing, the court heard testimony from Marquez, the individual district clerk that had generated the judgment, that the judge had not told her to put the probation ends at 18 on the judgment, that their office used an outdated form judgment database, that their software had recently been updated due to this case, and that determinate judgments now show the court's jurisdiction until the juvenile's 19th birthday. The respondent also stated his personal recollections of his rendition that he understood he would supervise J.A. until J.A.'s 19th birthday, and the inclusion of age 18 on the judgment was merely a clerical error because the judgment was generated by the individual clerk, not the judge. However, we are not bound by the trial court's clerical-error finding. See M.A.V., 2002 WL 662246, at *1.
As noted above, a "judicial error is one that arises from a mistake of law or fact that requires judicial reasoning to correct and it occurs in the rendering, rather than the entering of the judgment." Barton, 178 S.W.3d at 126. "Thus, even if the court renders incorrectly, it cannot alter a written judgment which precisely reflects the incorrect rendition." Escobar, 711 S.W.2d at 232. Here, the judgment changed the length of the court's supervisory term of J.A.'s probation, which is a substantive rather than a clerical change. See, e.g., Hernandez, 288 S.W.3d at 185, 188 (finding judgment nunc pro tunc's change of year of child support arrearage was substantive change, and thus judicial error, because it resulted in extra year of interest). A disposition with a probated sentence can extend supervision to any date within the range of the juvenile court's jurisdiction. Thus, a discussion that a juvenile court's jurisdiction to supervise probation can extend to age 19 is not a determination that jurisdiction to supervise that probation would extend to that duration.
Here, the trial court did not orally pronounce that the supervisory term of probation would conclude on J.A.'s 19th birthday during its rendering of the ruling, but if it had, then the judgment stating 18th birthday would have been a clerical error. See Barton, 178 S.W.3d at 126 (stating that clerical error is discrepancy between entry of judgment in record and judgment that was actually rendered). Instead, the juvenile court stated that the: "disposition will be an 8-year determinate probation, . . . and we're going to return every four to six months while this court has jurisdiction of [J.A.] to see if you know how to follow the rules or not." That statement requires interpretation in light of the original judgment—the court was to exercise its jurisdiction to the juvenile's 18th birthday. The State argues that the trial court meant "jurisdiction" in its most complete sense—that the juvenile court meant to impose a supervisory term coextensive with all the time it could have to exercise it. But neither the judgment nor the oral ruling clarify this meaning. The correction in the nunc pro tunc order changed the length of the term of supervision of probation rather than conforming it to any earlier oral pronouncement of sentence. To make that change in the length of the supervisory term of probation required judicial interpretation about what the judge meant by "jurisdiction"—an interpretation not found in the oral ruling of the disposition. See Barton, 178 S.W.3d at 126 (stating that judicial error is one that arises from mistake of law or fact that requires judicial reasoning to correct and it occurs in rendering, rather than entering, of judgment). Thus, the error was judicial and not clerical. Cf. A.M.R., 428 S.W.3d at 123 (finding trial court properly corrected clerical error in judgment nunc pro tunc because "trial judge did not, in its oral rendition of the judgment, stipulate the restriction would only remain in place if [parent] remained in El Paso County, Texas").
Consequently, because the two nunc pro tunc orders improperly corrected judicial errors in the July 19, 2016 determinate sentencing judgment/order, by changing the 18th-birthday-references to 19th-birthday-ones, they were void. Thus, the respondent clearly abused his discretion in signing these void orders.
B. Relator Lacks an Adequate Appellate Remedy
As discussed above, mandamus relief is proper when the trial court issues a void order, and the relator need not demonstrate the lack of an adequate remedy by appeal. See In re Sw. Bell Tel., 35 S.W.3d at 605; In re Flores, 111 S.W.3d at 818. In any event, a party can seek mandamus relief from a void judgment even if there is an adequate remedy by appeal. See Dikeman, 490 S.W.2d at 186 ("In view of our policy for at least a decade of accepting and exercising our mandamus jurisdiction in cases involving void or invalid judgments of district courts, Relator had every reason to expect relief from the void judgment in this case without first attempting an appeal."). Thus, even after J.A. turned nineteen on November 29, 2017, the juvenile court will continue to have jurisdiction to vacate any void orders that it may have signed. Here, because the respondent's June 23, 2017 "Nunc Pro Tunc Order to Correct Judgment" and July 28, 2017 "Order on Motion to Dismiss for Lack of Jurisdiction and Motion for Entry Nunc Pro Tunc" were void, J.A. need not demonstrate the lack of an adequate appellate remedy. See In re Sw. Bell Tel., 35 S.W.3d at 605; Dikeman, 490 S.W.2d at 186; In re Flores, 111 S.W.3d at 818.
Conclusion
We hold that the respondent abused his discretion in signing the "Nunc Pro Tunc Order to Correct Judgment" and the "Order on Motion to Dismiss for Lack of Jurisdiction and Motion for Entry Nunc Pro Tunc," and J.A. need not demonstrate an inadequate remedy by appeal because they were void. Accordingly, we conditionally grant the petition for writ of mandamus and order the respondent to vacate the June 23, 2017 "Nunc Pro Tunc Order to Correct Judgment," and the July 28, 2017 "Order on Motion to Dismiss for Lack of Jurisdiction and Motion for Entry Nunc Pro Tunc". We are confident the trial court will promptly comply, and our writ will issue only if it does not comply within 20 days of the date of this opinion.
Laura Carter Higley
Justice Panel consists of Chief Justice Radack and Justices Higley and Bland.