In re A.M.C.
491 S.W.3d 62
Tex. App.2016Background
- Depeau and Colen divorced in 2013; Colen later moved to enforce possession/access and the trial court found Depeau in contempt, imposing a 180-day jail sentence with 165 days probated.
- At the commitment hearing the trial judge signed an enforcement order containing handwritten probation conditions, but when the order was scanned into the court’s electronic record the bottom portion (the conditions) was truncated and not fully captured.
- Colen filed a motion for judgment nunc pro tunc asking the trial court to correct the electronic record to include the omitted handwritten probation conditions requiring Depeau to comply with the divorce decree and appear at compliance hearings.
- The trial court held hearings, could not locate an original paper copy, credited evidence and counsel’s statements that the judge had signed the complete order, and signed a nunc pro tunc enforcement order and a later reformed order including the omitted conditions.
- Depeau appealed, arguing the nunc pro tunc correction improperly added conditions that were not part of the original enforcement order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court properly entered a nunc pro tunc enforcement order after its plenary power expired | Depeau: the nunc pro tunc added conditions that were not in the original order and thus was improper | Colen: the omitted language was part of the judgment as rendered but was lost in scanning; nunc pro tunc corrects clerical omission | The court held the nunc pro tunc was proper because the omission was clerical (scanner error) and the judge’s factual finding that the original included the conditions was supported by some probative evidence |
| Whether the error was clerical or judicial | Depeau: addition amounted to correcting a judicial mistake (not permitted after plenary power expired) | Colen: omission was clerical — a transcription/scanner failure that made the electronic record differ from the rendered judgment | The court concluded the error was clerical (failure to scan the full page) and thus correctable nunc pro tunc |
| Whether the trial court had plenary power to modify the order when it signed the corrected order | Depeau: plenary power had expired (signed months later) so the order modifying terms is void | Colen: relief sought was correction of clerical entry, which Rule 316 permits at any time | The court acknowledged plenary power had expired but held correction via nunc pro tunc is permissible for clerical errors |
| Standard of proof for nunc pro tunc relief | Depeau: argued presumption of judge’s recollection should not apply because judge didn’t expressly rely on personal recollection | Colen: pointed to transcript, counsel statements, and scanned exhibit to support that the judge had rendered the complete order | The court applied Escobar’s standard: factual finding reviewed for some probative evidence and presumes the judge’s recollection if same judge rules; found sufficient evidence |
Key Cases Cited
- Escobar v. Escobar, 711 S.W.2d 230 (Tex. 1986) (distinguishes clerical vs. judicial errors; nunc pro tunc may correct clerical errors)
- Rawlins v. Rawlins, 324 S.W.3d 852 (Tex.App.-Houston [14th Dist.] 2010) (evidence types for supporting nunc pro tunc and judge’s recollection presumption)
- SLT Dealer Group, Ltd. v. AmeriCredit Fin. Servs., Inc., 336 S.W.3d 822 (Tex.App.-Houston [1st Dist.] 2011) (affirming nunc pro tunc to correct obvious clerical omission)
- Morris v. O’Neal, 464 S.W.3d 801 (Tex.App.-Houston [14th Dist.] 2015) (discusses Rule 316 and limitations on post-plenary modifications)