*1 new trial.108 for a the ease mand HERNANDEZ, Appellant, (Hernandez) Guadalupe LOPEZ
Maria Attorney The Office of Texas, Appellees.
General
No. 01-06-00901-CV. Texas, Appeals
Court Dist.). (1st
Houston
March trial, phase Lopez's would nei- punishment necessity for disposition 108. Our obviates analysis, nor cumulative harm ther add to our Lopez’s and fourth issue. discussion of second already greater than issues, Lopez any relief the denial of a afford which concern These herein. error at the afforded new trial and an motion for *2 implied finding order con- tained a clerical error.
On August we vacated the tri- al’s nunc pro leav- *3 ing original judg- intact the trial court’s January ment of 2004. The OAG rehearing. deny moved for the mo- We tion, opinion but withdraw the dated Au- 28, 2008, gust opinion and issue this in its stead. Our disposition re- main unchanged.
We vacate the tunc. History Facts and Procedural 16, 1986, child, C.L.H., On a George appellee, born to Maria Gua- Hernandez). dalupe Lopez (formerly, In Valdez, Goldsberry, Shari Laird San 1992, George begin paying was ordered to Leon, TX, Valdez, Laird, Stacey Holley in monthly support child for $260 C.L.H. Harris, Valdez, Goldsberry, & Tarlow Thereafter, George failed to make certain LLP, Houston, TX, Appellant. for support payments. child 21, 2004, Becker, On Attorney child-support D. Assistant
Michael General, hearing enforcement Worley, John B. Assistant Attor- was held before a General, Herrell, master. There is not a ney Rande K. Assistant record of that Austin, TX, General, hearing before in Attorney Appel- appeal. us this Howev- er, Maria, the record George, lees. shows that signed “Agreed
and the OAG an Order Panel consists of Justice Chief Enforcing Support Obligation” Child RADACK and Justices KEYES and Order”). (“Agreed HIGLEY. The Agreed Order contains a arrears, states, “The Court
OPINION ON REHEARING [George] FINDS and CONFIRMS that is $51,000.00 in in arrears the amount of HIGLEY, Justice. LAURA CARTER (Bold December emphasis 2004.” add- Hernandez, Appellant, George appeals ed.) On granted from signed adopting an order the master’s re- appellee, favor of the Office of the Attor- port Agreed and the Order. There not is (“the OAG”), ney of Texas General any hearing a record of at the time the which the trial court modified the arrear- trial court the order before us age support in a child enforcement order. appeal. issue, later,
In years what we construe as one Over two April George contends that the trial court erred OAG filed a motion for tunc, granting the OAG’s motion for alleging Agreed Order ment nunc pro tunc because the evidence contained a clerical error in the that date the trial arrearage Specifically, insufficient was confirmed. Decem- alleged the OAG date of At the close of hearing, court granted ber stated motion OAG’s for judg- In should have been December 2003. ment nunc ordering that the date addition, the OAG filed a “Motion to Con- of confirmation be firm Support Arrearage,” alleging changed Child from December 2004 to De- pay had failed to sum cember 2003. The court explained appended arrears. The to motion the OAG basis for its determination as follows: accounting statement from the OAG The court can that I yet observe have stating appellant owed as of see a Motion for Pro Nunc Tunc December make didn’t a substantive change to the *4 On August a hearing So, was held Order. I’ve found never the sup- the on motion for nunc tunc. posed distinction between clerical and OAG presented testimony the of Ma- any substantive errors to be help to the as ria its evidence that the date of Decem- in determining Trial Court these issues. ber 2004 had incorrectly been entered. They always change make some follows, testified, part: Maria in relevant affects the the substance of Order. Pre- sumably, nobody would be down here Q. you approach Did the with didn’t; requesting nunc if they tunes the Attorney your General and ex? think permissible but I it is for the court so, I yes, A. believe sir. to assume that the underlying court Q. you-all your Okay. And did recite not enter would a it had no agreement into the record? authority given to enter. And the testi- Yes, A. sir. the mony, Court is comfortable granting Q. agreed And upon stipu- was it the motion. lated on record that the the arrears This appeal ensued. 31st, as of December 2003 were $51,000? Jurisdiction Yes, A. sir.
Q. any testimony issue, Was there on the aAs the threshold OAG con any testimony
record—Was there
jurisdiction
tends that we do not have
to
that the agreement was 2004?
appeal
George’s
consider this
because
no
appeal
untimely
Specifi
tice of
filed.
No,
A.
sir.
cally,
OAG
the
because the
contends
cross-examination,
On
Maria testified that
tunc was
could
the
she
not recall
name of the
August
George’s
appeal
notice of
any
attorneys
of
the
involved.
by September
was due
2006. George
George,
appeared through
who
coun-
his
September
filed
notice of
appeal
his
sel, objected
to
the
2006, however,
not file a
and did
motion
contending that
requested
the
for extension of time.
change of date constituted a substantive
change
herein,
outside the trial court’s plenary
exceptions
With
not
applicable
period.
Specifically, George
appeal
contended
notice of
must
filed within
be
that the change of date would
in an
days
signed.
result
after the date the
is
Tex.R.App.
year
extra
of interest and would
appellate
vitiate
P. 26.1. An
court
parties agreement
may
be
file the
extend
time to
notice of
if,
confirmed at
as of
appeal,
days
December
within 15
after the deadline
filing
appeal,
party
for
the notice of
vertence). Hence,
jurisdiction over
appeal
our
notice of
files in the trial
established,
motion
turn to
appeal
court a
is
and we
appellate
files
10.5(b).
26.3.
rule
Id.
appeal.
with
the merits
complying
10.5(b)
that a motion for
requires
Rule
Judgment Nunc
Tunc
Pro
appeal
to file notice
extension of time
include,
alia,
to
“the facts relied on
inter
trial court
contends
the need for an exten-
reasonably explain
granting
erred
OAG’s motion
10.5(b)(2).
Id.
sion.”
the evi-
because
dence
insufficient
implied
of time is
An extension
or-
implied finding
faith,
acting
appellant,
good
an
when
Specifical-
contained a clerical error.
der
beyond the time
appeal
a notice of
files
ly, appellant
changing
contends
26.1,
by Rule
but before
permitted
arrearage cre-
confirming appellant’s
date
15-day period in Rule
expiration of the
obligation
pay
in his
ated
increase
Hanafin, 104 S.W.3d
26.3. See Hone v.
and therefore constituted a substantive
(Tex.2003)
(applying Verburgt
885-86
Appellant
change.
contends that
(Tex.1997));
Dorner,
*5
power make
plenary
court was without
to
Inc.,
Tech.,
Farming
v.
994
Coronado
change
judgment.
a substantive
to the
901,
(Tex.App.-Houston [1st
S.W.2d
901
1999,
However, rule 10.5
pet.).
no
Dist.]
Applicable
A.
of Review and
Standard
appellant
offer a rea
requires
still
that
Law
her
to time
explanation
sonable
failure
329b(d)
Pursuant
Rule
of
Texas
to
Tex.R.App.
appeal.
a
ly file
notice of
P.
Procedure,
Rules of Civil
886;
10.5(b)(2);
Hone, 104
at
S.W.3d
see
for 30
after a
plenary power
days
has
at 617.
Verburgt, 959 S.W.2d
grant
trial or
judgment
signed to
a new
Here,
shows that the
record
vacate,
correct,
modify,
to
or reform
signed
August
ment nunc
tunc was
on
329b(d).
P.
Once
judgment.
Tex.R.
Civ.
22,
of
George’s
2006 and therefore
notice
power
trial
it
plenary
expires,
21,
by September
was due
2006.
appeal
judgment
except by
set
a
cannot
aside
Septem-
George’s
appeal,
notice of
filed on
of review
bill
for sufficient cause. Tex.R.
2006,
22,
beyond
permit-
the time
ber
was
329b(f). However,
P.
court
Civ.
26.1,
expi-
Rule
was
ted
but
before
any
may at
time correct a clerical error
15-day period
ration of the
in Rule 26.3.
a
judgment by entering judgment
has also filed a factual
Because
329b(f);
316;
tunc.
P.
Tex.R. Civ.
he,
explanation indicating
good
Escobar,
230,
v.
711
231
Escobar
S.W.2d
faith,
that he filed on time
believed
(Tex.1986);
Gillespie,
v.
178
Barton
dates,
inadvertently
had
miscalculated the
121,
(Tex.App.-Houston
126
[1st
S.W.3d
time,
we
imply
we
an extension of
pet.).
Dist.]
George’s
appeal
conclude that
notice of
Hone,
discrepancy
at
A
error is
timely
filed. See
104 S.W.3d
clerical
a
885-86;
Baptist
judgment
of a
in the
Weik v. Second
Church
between
Houston,
actually
(Tex.App.-
judgment
record and
that was
S.W.2d
denied) (stat-
rendered,
judicial
pet.
Houston
does not arise from
[1st
Dist.]
Barton,
explanation”
reasoning
means
ing that “reasonable
determination.
Koch,
v.
any plausible
(citing
statement
circumstances
Andrews
(Tex.1986)).
judicial
indicating
timely
file was
A
that failure
hand,
error,
in the
on
occurs
not deliberate but was the result of inad-
the other
witnesses,
entering,
testimony
of a oral
written docu-
to the
rendering,
opposed
ments,
entries,
Escobar,
docket
previous judgments,
711 S.W.2d at
judge’s personal
or the trial
recollection.
of law or fact
from a mistake
It arises
Riner,
at 683.
976 S.W.2d
reasoning to correct.
judicial
requires
Inc.,
Airlines,
31 S.W.3d
Butler.
Cont’l
Analysis
B.
(Tex.App.-Houston [1st Dist.]
denied).
Here,
court
pet.
Agreed Order on
deciding whether an error
When
arrears,
judgment
stating,
a
on
included
look
judicial, the court must
is clerical or
“The Court FINDS and CONFIRMS
actually rendered and not
to the
in the
[George] is
arrears
amount
might
that should or
have
to the
$51,000.00 as of December
2004.” The
Escobar,
been rendered.
Feb
plenary power expired
trial court’s
can
correct the
231. The trial court
ruary
and the trial court was not
that in
a final written
entry of
judicial
error after
permitted
correct
actually ren
correctly
states
329b(d);
P.
that date. See Tex.R. Civ.
if the trial
at 231-32. Even
dered.
Id.
Dikeman,
Inc., conducted before hearing a (Tex.App.-Hous 976 S.W.2d 683 motion 1997, writ); family court master on the OAG’s but see Wit ton no [1st Dist.] Storie, n. enforcement. Subse- 3 for child tau v. S.W.3d Maria, the OAG George, pet.) (ap quently, no (Tex.App.-Fort Worth The Agreed Order. signed proposed plying legal and factual suffi traditional standards). were set forth Agreed Order may Evidence be from terms of ciency Agreed a by parties, Order ified motion for non-suit Bexar Coun- pro ty, requesting grant that the master submitted “the that the trial court
states a posed” Agreed Order to the trial court and “with prejudice.” non-suit Id. The trial approval. On recommended granting issued order the non-suit when the trial court “with prejudice.” plaintiff Id. When the adopting the master’s rec County, re-filed her suit in Maverick court, the order of the ommendation as defendant moved to dismiss based on the rendition of the occurred.1 See County Bexar trial court’s of non- (Tex. Fuselier, In re 56 S.W.3d prejudice.” suit plaintiff “with Id. The 2001, orig. pro App.-Houston [1st Dist.] moved for a nunc al- ceeding); see also Roman Catholic Dio leging erroneously that she had moved for County v. Tax cese Dallas Dallas “with” prejudice, non-suit rather than Collector, (Tex.App. motion, hearing “without.” Id. At a on the pet.) sign (explaining Dallas no plaintiffs counsel testified the re- ing agreed judgment submitted to quest prejudice” for a non-suit “with was a approval court for its constitutes rendition legal clerical error made his assistant. herein, judgment). error at issue if granted Id. The trial court the motion and any, rendering judg occurred changed the order of non-suit to reflect ment. that it “without prejudice.” was issued Id. The trial court signing concluded “the present
An error that is prejudice’ of the nonsuit ‘with awas minis- always rendition of is judicial act, required terial which rea- error, may not be corrected soning, and could thus be corrected America’s Fa tunc.” Id. at 877. Galvan, vorite Co. v. Chicken (Tex.App.-San 878-79 Antonio appeal On the court vacated denied) (citing writ Comet Aluminum Co. granting judgment court’s order (Tex. Dibrell, 58-59 tunc and reinstated the trial 1982)); Fuselier, 56 S.W.3d at (stating granting court’s order the plaintiffs mo- rendering judgment that error in judi tion prejudice. for non-suit with Id. at *7 error). cial 879. The court reasoned that Galvan, plaintiff only
In court could amend the final initially sued the written in Bexar County. defendant at order if there some S.W.2d was evidence that it had, Subsequently, plaintiff 876. point decided to at some the order was before entered, bring the lawsuit in Maverick County rendered prej- “without that, recognize pursuant 201.007(a)(10) 1. We § to Fami- Texas sion at Tex. Fam.Code Ann. 201.007(a)(14), ly (Vernon 2008)). Here, Code section "an associate the record reflects (14) judge may: sign: ... render and a final judge precisely that the associate did that— writing to in as to both form and his order states that he “recommends” parties” substance all and that such action proposed adopted judg- "the order be as referring "constitutes an order of the court.” added.) (Emphasis ment of the court.” R.S., Leg., Act See 78th ch. Moreover, complained because the error § 2003 Tex. Gen. Laws appeared in in this case the associate (amended (current 2007) version at Tex. Fam recommendation, judge’s even if the 201.007(a)(14), (c) (Vernon associ- § Code Ann. 2008)) added). ate had chosen to make (emphasis his recom- Pursuant to section rendition, however, 201.007(a)(10), appellees mendation a cannot an associate may prevail opt instead to "recommend an order to because the error would then have (current in a appeared be rendered case.” See id. ver- in his rendition. regard Id. at 878. to udice.” Without Order was in error and that she showing plaintiff at- evidence for the date to intended have been Decem- Galvan, to re-file her tempted suit and therefore ber 2003. See 897 S.W.2d at Here, there, logically request must have intended to 876. there is no evidence prejudice, appellate non-suit “without” the record that the trial court intended court concluded that the trial court never to do anything grant other than the motion stated in the record that it had to exactly parties intended as the requested, and there prejudice. render without Id. at is no evidence in the record before us with judg- regard 877. The court concluded any prior to rendition of judgment. if ment entered is the same Galvan, as the See id. Again, as without such rendered, regardless record, whether rendi- evidence in the it is of no conse- incorrect, tion was a trial quence court has no may date Maria have intend- tunc power modify correct or ed in the Agreed Order that she plenary entered after whether this Court can agree that the date power expires. Id. simply is, There was no that Maria now asserts as a matter of logic, evidence that the trial court intended to everyone do the date who signed the anything grant other than the motion ex- Agreed prior presenting it to the actly as the plaintiff requested. had Id. at trial court must have intended. Galvan, As the court concluded in if judgment entered is the same as Here, the OAG contends that rendered, regardless ment whether the George’s that the parties agreed assertion incorrect, rendition was a trial court has 2004 to set the no tunc power to correct or modi- as of December illogi fy the entered after its plenary Indeed, definition, cal. to be “ar jurisdiction expires. rears” is to be payment “behind of a Escobar, S.W.2d (applying at 877 discharge obligation.” debt or the of an 232); S.W.2d at see Cherry, also In re (7th ed.1999). Dictionary Law Black’s 333 (Tex.App.-Austin An “arrearage” unpaid is an or overdue pet.) (explaining that “a nunc However, debt. Id. if even order can be used to make corrections incorrectly judgment, it cannot to ensure that the conforms with alter a written precisely what already determined and not what reflects the incorrect rendition. See Esco determined”). should have been bar, 711 232. We must look to judgment actually rendered and not Even an incorrect or unintend *8 judgment that should have been ren ed rendition of judgment does not consti dered. Id. at 231. tute an recording error in the of Nothing in the record sug- judgment before us that can by be corrected gests that judge applied per- Escobar, the trial judgment pro his nunc tunc. 711 232; sonal recollection of the surrounding facts at Whaley, 794 Alford Agreed 920, Order to determine motion S.W.2d 922 (Tex.App.-Houston [1st Riner, writ). judgment pro 1990, nunc tunc. See judgment Dist.] “The as Galvan, 976 S.W.2d at 683. Like in which entered judgment must differ from the as rendered; plaintiffs counsel testified that language pro judgment a nunc tune will presented in the motion to the trial court serve to judgment ensure that the as error, here, inwas Maria testified that the actually rendered is entered of record.” 31, Galvan, date of December 2004 stated the See at (applying 231). Here, Escobar, respectfully like in its I continue to stead. 711 S.W.2d Galvan, judgment in the record shows that I would hold that the nothing dissent. 22, judg August between the on discrepancy signed by the there is a judgment as judgment pro nunc tunc that ment rendered was as id.; Barton, 178 S.W.3d entered. See corrected a clerical error in the final enforcing arrearages against 126. agreed by Hernandez rendered Appellant George sign- court’s that the trial We conclude 21, January the associate on 27, January on ing of the Order by referring trial court on entered of its rendition 2004 constituted Therefore, I would af- January 2004. at 878. Because See pro firm tunc in favor judgment nunc present in the complained the error of (Her- Lopez appellees Guadalupe of Maria rendition of on trial court’s nandez) Attorney and the Office of the error, day, any, judicial if constituted (OAG). General of Texas error in the rendition error. Because an error, judicial we always George appeals from a nunc tunc trial court erred conclude that on judgment signed by the trial court Au- motion for granting the OAG’s gust judg- 2006. The nunc tunc tunc. We hold ment corrected the date is void it constitutes because was found to be child correct a error after attempt to December support payments plenary trial court’s expiration of the from the date of December 2004 recit- power. January ed in the court’s Accordingly, George’s we sustain issue. January ment.. That entered of the referring as Conclusion “Agreed Enforcing court an Child vacate the trial court’s We Order”) Support Obligation” (“Agreed leaving intact signed by had been asso- original judgment ciate the court on 2004. pursuant former section 201.007(a)(14)(A) Family Code. KEYES, dissenting. Justice R.S., Leg., Act of 78th ch. (cur- 1, § 2003 Tex. Gen. Laws 1742 OPINION DISSENTING rent version at Tex. Fam.Code Ann. REHEARING ON 201.007(a)(14)(A)(Vernon 2008)) (confer- § KEYES, Justice. EVELYN V. ring power judges family on associate opinion except I courts to render final orders my dissenting withdraw dated referral).1 opinion as orders of August 2008 and substitute limited evidence; (8) 201.007(a)(14)(A), findings effective of fact on Former section make law; September provided part: (9) in relevant formulate conclusions of referral, (a) Except limited an order of *9 judge may: (14) sign: associate render and (1) hearing; conduct (A) agreed writing order in as to final evidence; (2) hear par- both form and substance all evidence; (3) compel production of relevant . ties evidence; (4) admissibility rule on the hearing, Q. you approach judge Did January In the with the Attorney your heard evidence of the General and ex? judge associate Agreed Order and parties’ terms of the so, A. I yes, believe sir. “Agreed them in the written
transcribed Q. Okay. you-all your And did recite Maria Appellant appellees and Order.” agreement into record? then initialed the transcribed and the OAG Yes, A. sir. judge the associate Agreed Order and Q. agreed upon And was it and stipu- stated, in Agreed Order signed it. The lated on the that the record arrears and part, “The FINDS relevant Court as of December 2003 were George Everardo Her- that CONFIRMS $51,000? amount of nandez is in arrears Yes, A. sir. 31st, $51,000.00 2004”—a as of December Q. any testimony Was there on the then eleven months the future— date any testimony record—Was there including unpaid support any “all child that the agreement was 2004? previously on confirmed ar- balance owed No, A. sir. judgments rearages support or retroactive George did not (Bold present contrary evidence. emphasis specified as of the date.” added.). Agreed The final Order pro At the close of the nunc tunc hear- judgment against George in amount ing, granted mo- OAG’s finding and on the basis of that tunc, judgment tion for ordered judgment stated that “[t]he that the confirmation date judgment.” is a cumulative The amount changed be from December 2004 to findings also contained Agreed Order December finding and wrote that court-ordered child George pay failed to the August into 2006 nunc tunc in 2003. specific on four dates respect January to the With entered the referring signed The commented, the court judgment, Agreed final Order as the of the permissible “I think it is for the court to January court on underlying assume that court would authority not enter a it had no The moved for subsequently OAG I enter.” construe the court’s comment as contending ment nunc authority that it had no determination agree- not reflect the Agreed did 28, to enter a parties ment of the but contained a clerical reflect the terms of accurately that did not error, namely finding by the Agreed the final Order rendered cumulatively arrears as of December judge 2004 and associate At the rather than December 2003. was, therefore, a clerical the error hearing, presented the OAG mistake testimony in the of Maria’s evidence form ren- not a error in the judge that the associate heard the terms of dered. “Agreed open Order” court and purpose of December 2004 was incor- of a date in a in tunc is to correct a clerical error rectly transcribed the associate plenary power after the court’s the written Order: R.S., (c) Leg., ... 78th ch. An rendered and Act of (current (a) § ver- an associate under Subsection 2003 Tex. Gen. Laws 1742 201.007(a)(14)(A) § referring constitutes an order of the court. sion at Tex. Fam.Code Ann. (Vernon 2008)). *10 190 (Tex. Jenkins, McCandless, 170, 37 173-74 v. 16 S.W.3d expired.
has Jenkins denied) 2000, 473, 2001, (Tex.App.-El Paso writ App.-Houston Dist.] 482 [1st S.W.3d Arledge, E.K. Hawk v. pet.); no see also (agreeing Samples, finding with but 05-01-01144-CV, Inc., 2002 WL No. agreement incomplete settlement 6, 1225917, June (Tex.App.-Dallas *2 was neither read into record nor admitted denied) 2002, (mem.op.) (purpose pet. exhibit). tunc is to make written
judgment is, contrast, by A “a clerical mistake accurately reflect trial judgment record of in mistake or omission the final written ordered). Thus, and relief court’s decision judgment prevents accurately it from provides rule that “cleri the nunc reflecting judgment actually ren- any judgment record of cal mistakes in the Hawk, 1225917, dered.” 2002 WL at *2. in by open may be corrected Thus, judgment justice truth or according court to the judgment entered must differ the motion therefor the case after notice of rendered, judgment actually from the so in parties to the interested given has been tunc serves P. A judgment.” such Tex.R. Civ. to ensure rendered to correct plenary power trial court has Id.; actually is entered of record. see also pro tunc a clerical error judgment nunc America’s v. Favorite Chicken Co. entering judgment, in a final but it made 874, (Tex.App.-San 897 879 S.W.2d Antonio error in judicial cannot correct a made denied); Ex parte Hogan, writ 916 v. rendering final Escobar Es (Tex.App.-Houston S.W.2d [1st (Tex.1986); cobar, 230, 231 711 S.W.2d writ) (trial juris- no court had Dist.] Jenkins, at 482. 16 S.W.3d typographical diction to correct obvious er- judicial act “Rendition is support pay- rors dates of missed child declares the decision court settles and in contempt ments order nunc tunc to matters at upon of the law issue.” make speak written truth of Dibrell, v. Comet Aluminum Co. judge actually rendered (Tex.1970) (quoting S.W.2d Coleman court). verbally in Zapp, 105 Tex. 151 S.W. (Tex.1912)). agreed judgment or, An — an error Whether case, a rendered final order-—-is judicial clerical is a question or of law. officially an- “whenever the trial Escobar, Escobar v. ... open court nounces his decision (Tex.1986). However, whether a court guidance for his official capacity his official pronounced judgment orally and what the orally whether memorandum written pronouncement terms of the were are mat- by him in pronounced the sentence of law ters of fact. Id. “The or clerical any Samples cause.” Exterminators v. question question becomes a of law only (Tex.1982) Samples, 640 S.W.2d factually after the trial court determines Aluminum, 450 (quoting Comet it previously whether holding parties after had judgment’s ap- and the contents.” Id. An approval voiced their of settlement dictat- pellate may review the trial court’s court, open ed in “the trial court rendered regarding factual determinations rendi- them to judgment by ordering sign legal tion of and factual suffi- agreement”); follow the see also Patel v. ciency of the evidence. Id. Clinic, Inc., Eagle Pediatric Health Pass 201.007(a)(14)(A) (Tex.App.-Corpus Under former section Code, family pet.); Family Christi accord Noorian v. of the an associate *11 judge authority was given to render a ed to the associate judge at the January 21, 21, agreed final order. See Act of 2004 hearing. See Tex.R. P. 316. Civ. 2003, 476, R.S., 1,§ Leg., 78th ch. 2003 The trial court testimony heard (current Tex. Gen. Laws version at tunc hearing under the 201.007(a)(14)(A) § terms of the Agreed Order as recited to Tex. Fam.Code Ann. (Vernon 2008)). Here, the judge associate court, in judge open associate George authority by hearing exercised that $51,000.00 was in in arrears the amount of court, terms of agreement open 31, 2003, not, as of December as incorrect- them, transcribing ordering par- and ly transcribed in the associate judge’s sign ties to the agreement and follow handwritten findings, 2004. This testimo- they whose agree- terms had recited —an ny was not disputed. enforcing against George ment the arrear- I would hold the evidence at the ages payments his child support accu- nunc pro tunc hearing legally was 31, mulated as of December 2003. Act See factually sufficient to support 21, 2003, R.S., 476, of May Leg., 78th ch. implied factual determination that 1, (current § 2003 Tex. Gen. Laws the confirmation arrearage date of record- version Tex. Ann. Fam.Code ed in its January 2004 judgment did (14)(A) (Vernon 2008)). 201.007(a)(1), (2), § not accurately reflect the terms of the final However, judge mistakenly the associate Agreed Order recited to the associate arrearages transcribed the as of December judge open January on 31, 2004, a date then 12 months in the the confirmation date future. Agreed The Order then was incorrectly was by transcribed the associ- to the referring transmitted court for en- ate judge, George and that actually was try as the of the court. See $51,000 arrears in the amount of as of 201.007(c) former section (providing, “An December as the record shows- ... signed by rendered and not December (a) an associate under Subsection constitutes referring order of the probative Because there is evidence to court.”). entry Thus the trial court’s the trial court’s determination that Agreed final Order as its on the judgment of the referring court en- January 2004 was not the rendition of on January tered 2004 did not accu- judgment, purely but the ministerial act of rately Agreed reflect the final ren- Order entry Webster, Serna by dered associate on 490 (Tex.App.-San Antonio 21, 2004, I would hold that the sentence of 1995, no pet.) (signing of formal order or pronounced law par- was that to which the trigger is essential to appropri- ties testified at the nunc hearing, timetable, ate appellate but is otherwise namely arrears in the ministerial, merely act); mechanical see amount of as of December also Tex.R. P. (providing Civ. pay arrearages and that he should of judgment to determine beginning pe- from that time—and not from December rules). prescribed by riods one, a date testified evidence, purpose contrary testimony, to the August of the trial court’s hearing appellees’ logic, appearing only in the incor- Rule 316 motion for judgment transcription par- tunc was to rect handwritten of the determine Agreed whether the entered final ties’ the associate 2004 accurately judge, subsequently reflected which was entered the terms of the final Order recit- the referring court as the *12 judg the Thus, after the trial court had entered hold that the trial I would
court.
suit,
requested
the
she
correcting
the arrear- ment and dismissed
not err
court did
judgment
pro
the
“nunc
tunc”
August
date in
correction of
confirmation
age
would,
tunc,
prejudice,”
and I
“without
pro
reflect dismissal
judgment
therefore,
2006 nunc
for a non-suit “with
August
claiming
request
the
the
affirm
Escobar, 711
a clerical error made
judgment.
prejudice”
tunc
was
pro
judgment nunc
(affirming
897 S.W.2d
legal
at 232
her counsel’s
assistant.
when,
hearing
however,
on motion for
pro
question,
tunc
There is no
at 876.
tunc, district court
pro
dismissing
a suit
judicial ruling
that a
orally-
partial judgment
evidence of
prayer
heard
to the
prejudice”
response
“with
presiding judge
rendered
different
upon
a declaration of the law
party
of a
is
from
that differed
complex proceedings
the matters at issue. See Comet Alumi
on all claims in
judgment entered
Co.,
written
(defining
at 58
rendi
num
450 S.W.2d
later and court heard evi
years
case four
Therefore,
disagree
I
judgment).
tion of
partial judgment,
oral
dence of contents of
case, in
applicable
to this
that Galvan
supported
evidence
trial
and some record
judi
not a
which the error corrected was
judgment).
to correct
court’s decision
a
ruling
transcription
cial
but
mistake.
however, holds that rendi-
majority,
The
Diocese,
Likewise, in Roman Catholic
occurred on
tion of
was submitted to the
agreed judgment
an
the
adopted
the trial court
when
pursuant
compromise
a
trial court
report, consisting
final
judge’s
associate
mistake in the declaration of the substan- problem essential majori with the tive law into a clerical mistake. ty’s holding that “rendition” of a final Fuselier,
In
heard,
In re
as in
transcribed,
signed
dismissing
court
an order
a non- signed by an
family
associate
judge occurs
prejudice.”
suited case “with
56 S.W.3d at when the referring court enters the final
signed
266. The order was
“approved”
order
as the
of the court is
by counsel for the movant.
Id.
267. with
holding,
clerical errors in the
plaintiff subsequently
When the same
transcription
filed
of the
agreed
terms
an
issue,
a second suit on the same
her new final order recited
an
family
associate
counsel discovered the
prej
judge
dismissal with
under the authority
by
conferred
201.007(a)(14)(A)
udice and
of an
sought
order nunc
former section
are auto
pro tunc changing the dismissal to
matically
one
transformed into
ju
substantive
with
prejudice
ground
Hence,
without
on the
that
dicial errors.
the intent of section
original
mistakenly
201.007(a)(14)(A),
order was
submit
that associate judges of
by
plaintiffs
ted
former attorney.
Id.
the family court be empowered to render
order,
signed
The trial court
orders,
but the
final agreed
except
by
as limited
appeals
referral,
nullified,
court
it
the ground
vacated
orders of
and there
the original
correctly
order
reflected the
can never
be a nunc
tunc correction of
judgment actually rendered.
Id. at 267-
agreed
a final
order rendered
an associ
Again,
sought
family
mistake that was
ate
judge pursuant
to section
by judgment
201.007(a)(14)(A),
be corrected
“nunc
tunc”
no matter how absurd or
was a mistake in the declaration of
obvious a
mistake is made in transcribing
law,
agreement.
substantive
not a clerical
the terms of the
I
mistake.
believe that
holding
is inconsistent both
201.007(a)(14)(A)
Former section
plain
with the
language
purpose
Family
plainly
Code
both
states
that an
201.007(a)(14)(A)
section
pur
and with the
associate
has the authority to hold
rule,
pose
of the nunc
as well as
evidentiary hearing
an
on the terms of an
with
Samples,
Comet Aluminum and
agreed order and to render a
final
approve
the correction of clerical
order in accordance with those terms and
in judgment
errors
tunc. See
any
such
is “rendered and
875;
Samples, 640 S.W.2d at
Alu
Comet
signed by
an associate
under Sub-
minum,
ciate judge who heard its terms recited in
open parties, transcribed
them, order, the final but is