Opinion
NUMBER 13-17-00659-CV
08-24-2020
TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. LEROY TORRES, Appellee.
On Appellee's Motion for Correction of Mandate and Judgment.
ORDER
Before Chief Justice Contreras and Justices Benavides and Longoria
Order Per Curiam
This cause is before the Court on appellee Leroy Torres's unopposed "Motion for Correction of Mandate and Judgment." We issued our opinion and judgment in this appeal on November 20, 2018. See Tex. Dep't of Pub. Safety v. Torres, 583 S.W.3d 221, 232 (Tex. App.—Corpus Christi-Edinburg 2018, pet. denied) (finding trial court lacked jurisdiction because "DPS's immunity to Torres's suit has not been validly abrogated by Congress or waived by the Texas Legislature"). Our judgment assessed costs of the appeal against appellee. See TEX. R. APP. P. 43.4. ("The court of appeals' judgment should award to the prevailing party costs incurred by that party related to the appeal, including filing fees in the court of appeals and costs for preparation of the record."). Appellee filed a motion for en banc reconsideration, which this Court denied on December 19, 2018. After the Texas Supreme Court denied appellee's petition for review, the clerk of this Court issued a mandate, in accordance with our judgment, on August 7, 2020. See TEX. R. APP. P. 18.1. In his "Motion for Correction of Mandate and Judgment," filed on August 17, 2020, appellee asks us to "correct" the judgment and mandate to reflect that appellee is exempt from paying appeal costs under the federal Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). See 38 U.S.C.A. § 4323(h)(1) ("No fees or court costs may be charged or taxed against any person claiming rights under [USERRA].").
We lack jurisdiction to grant the requested relief. Our plenary power over the appeal expired on January 18, 2019, which is thirty days after appellee's motion for en banc reconsideration was denied. See TEX. R. APP. P. 19.1(b). After our plenary power expires, we may "issue and recall" our mandate as provided by rule, and we may "correct a clerical error" in the judgment, but we may not "vacate or modify" the judgment. TEX. R. APP. P. 19.3(a), (b). Appellee's "Motion for Correction of Mandate and Judgment" essentially asks us to modify our judgment to provide that appellee is exempt from paying appeal costs. See id.; see also Westerburg v. W. Royalty Corp., No. 07-15-00082-CV, 2016 WL 5786980, at *1 (Tex. App.—Amarillo Sept. 21, 2016, no pet.) (mem. op.) (concluding that appellant's "Motion to Clarify Mandate," which asked the court to modify the mandate to "reflect an apportionment of appellate costs between the parties," was in essence a request for modification of the judgment over which the court lacked jurisdiction because plenary power expired). But because our plenary power has now expired, we have no jurisdiction to do so. See TEX. R. APP. P. 19.3.
Rule 43.4 states that any provision in a judgment purporting to "require the payment of costs by a party who was entitled to proceed without payment of costs under Rule 20.1" is void. TEX. R. APP. P. 43.4. The record does not show that appellee was exempt from costs under Rule 20.1, which concerns indigent parties. See TEX. R. APP. P. 20.1. Accordingly, even if appellee is correct that he is exempt from appellate costs under USERRA, our judgment's assessment of costs is not void.
The appellate rules require our clerk to issue a mandate that is "in accordance with the judgment." TEX. R. APP. P. 18.1. The mandate issued in this case strictly conforms to the judgment. Accordingly, we hereby DISMISS the motion for want of jurisdiction.
We note that appellee did not contest the judgment's assessment of costs in either his motion for en banc reconsideration, his petition for review, or his brief before the Texas Supreme Court.
IT IS SO ORDERED.
PER CURIAM Delivered and filed the 24th day of August, 2020.