Motion for Judgment Nunc Pro Tunc in Texas

What Is a Motion for Judgment Nunc Pro Tunc?

Background

“The Latin phrase ‘nunc pro tunc’ means ‘now for then’ and describes the inherent power a court possesses to make its records speak the truth. In other words, use of a judgment nunc pro tunc permits the court to correct now what the record reflects had already occurred at a time in the past.” (Silva v. State (1988) 989 S.W.2d 64, 66; State v. Garza (1992) 824 S.W.2d 324, 325.)

“The purpose of a nunc pro tunc order is to correctly reflect in the records of the trial court the judgment it actually made, but which for some reason did not enter of record at the proper time.” (Smith v. State (2000) 15 S.W.3d 294, 298-99 citing Creeks v. State (1991) 807 S.W.2d 853, 854.) Therefore, >before a judgment nunc pro tunc may be entered, there must be proof the proposed judgment was actually rendered or pronounced at an earlier time. (Smith v. State (2000) 15 S.W.3d 294, 298-99 citing Jones v. State (1990) 795 S.W.2d 199, 201; see also Wilson v. State (1984) 677 S.W.2d 518, 521.)

How to Structure the Motion

Tex. R. Civ. P. Ann. 316 (Supp. 1988) allows a trial court to correct clerical mistakes in the entry of judgment by entry of a judgment nunc pro tunc. (SLT Dealer Group, Ltd. v. AmeriCredit Financial Services, Inc. (2011) 336 S.W.3d 822, 832.)

The court can correct a clerical error in the judgment at any time, even after it loses plenary power over the judgment. (Tex. R. Civ. P. 316.) A clerical error is a mistake that prevents the judgment, as entered, from accurately reflecting the judgment as actually rendered. (Universal Underwriters Ins. Co. v. Ferguson (1971) 471 S.W.2d 28, 29-30.) In contrast, a judicial error arises from a mistake of law or fact that requires judicial reasoning or determination to correct. (Butler v. Cont'l Airlines, Inc. (2000) 31 S.W.3d 642, 647.) Determining whether the error is judicial or clerical is a question of law. (Escobar v. Escobar (1986) 711 S.W.2d 230, 232.)

Errors Futher Defined

A judgment nunc pro tunc may correct only clerical errors in a judgment, not judicial omissions or errors. (State v. Gobel (1999) 988 S.W.2d 852, 853; Jiminez v. State (1997) 953 S.W.2d 293, 295.) A clerical error is defined as one that does not result from judicial reasoning or determination. (State v. Bates (1994) 889 S.W.2d 306, 309.) Whether the error is judicial or clerical depends on the nature of the error, not on who made the error. (Jiminez, 953 S.W.2d at 295; Curry v. State (1986) 720 S.W.2d 261, 262.)

Thus, the correction of a clerical error only involves a process to insure that the record truthfully reflects what actually occurred. This “correction process” does not allow for or permit re-adjudication or the reopening of a controversy. (Smith v. State (1991) 801 S.W.2d 629, 633.) The determination of whether an error is clerical or judicial in nature is a question of law. Thus, the trial court's findings and conclusions are "not binding on an appellate court." (Smith, 801 S.W.2d at 633.) “A judicial error is an error which occurs in the rendering as opposed to the entering of a judgment.” (Escobar v. Escobar (1986) 711 S.W.2d 230, 231.)

Proper Use of Judgment and Limits

A judgment nunc pro tunc is improper when it has the effect of making a new or independent order. (Ex parte Dickerson (1986) 702 S.W.2d 657, 658.) The nunc pro tunc entry may be made to correct a judgment to properly reflect the actual order but may not be used to modify or add provisions to an order previously entered. (Id.) A correction can be made to reflect what actually happened at trial by entry of a nunc pro tunc judgment, “but correction can be only as to what was done and not as to what should have been done.” (Ex parte Dopps (1986) 723 S.W.2d 669, 671; Chaney v. State (1973) 494 S.W.2d 813, 814 n. 1.)

The Court’s Decision

In determining the timing concerning errors, it is well established that “[t]he judicial or clerical question becomes a question of law only after the trial court factually determines whether it previously rendered judgment and the judgment's contents.” (Escobar v. Escobar (1986) 711 S.W.2d 230, 232.)

In deciding the question of jurisdiction for an appeal of a judgment nunc pro tunc, it is well established that “no statute vests the [Appeals] Court with jurisdiction over an appeal from an order denying a request for judgment nunc pro tunc. (Everett v. State (2002) 82 S.W.3d 735 citing State v. Ross, 953 S.W.2d 748, 751-52 (Tex.Crim.App. 1997). Thus, such a case must be dismissed this appeal for want of jurisdiction. (Id.)

In determining the correct action to take when a judgment nucn pro tunc is issued for a judicial error instead of a clerical error, it is well established that “[a] judgment rendered to correct a judicial error after plenary power has expired is void.” Morris v. O'Neal (2015) 464 S.W.3d 801, 808 citing Rawlins v. Rawlins (2010) 324 S.W.3d, 852, 855.)