In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-09-00494-CV
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9MM TAURUS MODEL PT 111 HANDGUN SERIAL NO. TTD 96410,
.45 CAL FIRESTAR HANDGUN SERIAL NO. 2168970,
SAVAGE MODEL 110-270 SERIAL NO. F723621, and
HI POINT MODEL 995 SERIAL NO. B8145087 (Chad Davis), Appellants
V.
THE STATE OF TEXAS, Appellee
San Jacinto County, Texas
Trial Cause No. CV10,907
In a forfeiture proceeding, the trial court signed an order granting the State's motion for non-suit and subsequently signed a judgment. Chad Davis filed a notice of appeal too late to perfect an appeal from the judgment dated July 31, 2008, and we dismissed the appeal. See 9MM 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.) (mem. op.). After our mandate issued, Davis filed a notice of appeal "from the Order denying Defendants Court Ordered Appearance, signed September 21, 2009." We questioned our jurisdiction, and Davis filed a response.
Davis contends that he filed a motion for attorney's fees on September 2, 2008, after the trial court signed the order that non-suited the case and required each party to bear its own costs. Davis contends that the trial court subsequently signed an order nunc pro tunc that stated the dismissal was without prejudice. See In re Davis, No. 09-09-00374-CV, 2009 WL 2750092 (Tex. App.--Beaumont Aug. 31, 2009, orig. proceeding) (mem. op.). Because the order nunc pro tunc was signed after Davis filed his motion for attorney's fees, Davis argues that his motion for attorney's fees was an outstanding claim for relief that the trial court effectively denied on September 21, 2009, when the trial court denied Davis's motion for a hearing on the motion for attorney's fees that Davis had filed the previous year.
When the trial court signs a corrected judgment after expiration of the trial court's plenary power, the period for changing or challenging the judgment run from the date of signing the corrected judgment "with respect to any complaint that would not be applicable to the original document." Tex. R. Civ. P. 306a(6). In this case, the order nunc pro tunc corrected a clerical error on the earlier order granting the State's motion for non-suit, not the later order on the Davis's motion for return of property. The judgment in Cause No. CV10,907 ordered each party to bear his own costs and did not award attorney's fees. The act of signing the order nunc pro tunc occurred after the trial court's plenary power over its original judgment expired. The trial court's act of signing an order nunc pro tunc neither revived its jurisdiction over the case nor caused the time for perfecting an appeal from the original judgment to recommence. See Mullins v. Wright, 772 S.W.2d 580, 581 (Tex. App.--Fort Worth 1989, orig. proceeding) (signing judgment nunc pro tunc did not revive trial court's jurisdiction to consider motion that could have been raised within thirty days of original judgment).
We lack jurisdiction over this attempted appeal. Accordingly, the appeal is dismissed.
APPEAL DISMISSED.
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CHARLES KREGER
Justice
Opinion Delivered December 10, 2009
Before McKeithen, C.J., Kreger and Horton, JJ.