Opinion
No. 09-09-00374-CV
Submitted on August 26, 2009.
Opinion Delivered August 31, 2009.
Original Proceeding.
Petition Denied.
Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
MEMORANDUM OPINION
Chad Davis seeks mandamus relief to compel the trial court to sign an order of non-suit in a forfeiture proceeding. Davis argues the order granting the State's motion for non-suit is void because the decretal portion of the order lacks express language of dismissal. In its response to the petition for writ of mandamus, the State attached a copy of a nunc pro tunc order signed on August 24, 2009. The nunc pro tunc order adds the language "is hereby DISMISSED WITHOUT PREJUDICE" to the order of non-suit.
"Courts should not give conclusive effect to the judgment's use or omission of commonly employed decretal words, but should instead determine what the trial court adjudicated from a fair reading of all the judgment's provisions." Wilde v. Murchie, 949 S.W.2d 331, 333 (Tex. 1997). "A judgment should be construed as a whole toward the end of harmonizing and giving effect to all the court has written." Point Lookout West, Inc. v. Whorton, 742 S.W.2d 277, 278 (Tex. 1987). Although there was an omission from the decretal portion of the order granting non-suit, there was no conflict between the recital and decretal portions of the order and the court's order may be ascertained from reading the whole document. Furthermore, the trial court subsequently denied all claims for relief in a final order signed July 31, 2008. We held that Davis failed to timely perfect an appeal from that order, which was the final judgment in the case. See 9 MM Taurus Model PT 111 Handgun Serial No. TTD 96410 v. State, No. 09-08-00526-CV, 2009 WL 89272 (Tex. App.-Beaumont Jan. 15, 2009, no pet.). Davis did not seek further review of the judgment and our mandate issued.
The only relief requested in the petition is the signing of a "proper order granting the [State's] motion for non-suit." A final judgment that disposed of all claims was signed on July 31, 2008, and it further appears that a proper order has been signed that corrects the order of non-suit through a nunc pro tunc order. Davis has not shown that he is entitled to mandamus relief. We deny the petition for writ of mandamus.