NO. 07-10-00481-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
MARCH 7, 2011
IN THE INTEREST OF A.P., A.P.,
A.N.P., AND A.M.P., CHILDREN
FROM THE 223RD DISTRICT COURT OF GRAY COUNTY;
NO. 35,607; HONORABLE PHIL N. VANDERPOOL, JUDGE
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
ORDER
Appellants T.P., the father, and D.P., the mother, appeal the trial court’s
termination of their parental rights. On our own motion, we abate the appeal and
remand the case to the trial court for consideration of its two orders signed November
22, 2010.
On May 14, 2009, the Texas Department of Family and Protective Services filed
suit against the father and the mother through a pleading denominated, “Original
Petition for Protection of a Child, for Conservatorship, and for Termination in Suit
Affecting the Parent-Child Relationship.” The petition alleges T.P. is the father of four
children subject to the proceeding. It further alleges that D.P. is the mother of two of the
children, A.N.P. and A.M.P., and that E.P. is the mother of the other two, whose initials
are the same, A.P., and to whom we will refer as the “older two children.” The
Department’s petition sought, inter alia, termination of the parent-child relationships
between the father and all four of the children, and the parent-child relationships
between the mothers D.P. and E.P. and their respective children.
The case was tried by jury beginning November 8, 2010. Responding to
questions, the jury found the parent-child relationships between the father and A.N.P.
and A.M.P., and the mother and A.N.P. and A.M.P., should be terminated. The jury
found E.P., the mother of the older two children, should be named their managing
conservator. The jury was not asked if the parent-child relationship between the father
and the older two children should be terminated. After the jury returned its verdict and
was discharged, the court orally rendered judgment. Consistent with the jury’s answers,
it ordered the parent-child relationships between the father and A.N.P. and A.M.P., and
the mother and A.N.P. and A.M.P., terminated. It named E.P. sole managing
conservator of the older two children. It made no oral pronouncement concerning the
father’s parent-child relationship with the older two children. These rulings were also
expressed in a docket sheet entry of November 10.
On November 22, 2010, the trial court signed two orders in the case. The first,
entitled “Order of Termination,” and the second, “Final Order in Suit Affecting the
Parent-Child Relationship.” In relevant part, the termination order recites the children to
the suit are A.N.P. and A.M.P. But the termination order also recites findings of best
interest and statutory predicate grounds, and expressly terminates the father’s parental
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rights, as to all four children.1 As to the father, the SAPCR order is inconsistent with the
termination order. It names E.P. permanent managing conservator of the older two
children and denies the father possession or access to the older two children.2
Importantly, however, the SAPCR order recognizes a parent-child relationship between
the father and those two children.
In short, now before us are two appealable orders affecting the parent-child
relationship between father and the older two children. The termination order purports
to terminate that relationship while the SAPCR order recognizes the relationship but
curtails the father’s access or possession of the older two children.
The father and the mother filed notice of appeal. The trial court found their
appellate points frivolous but appointed appellate counsel. The record was filed and on
1
This section of the termination order concludes with the decree: “IT IS
THEREFORE ORDERED that the parent-child relationship between [the father] and the
child (sic) [A.P., A.P., A.N.P., and A.M.P.] is terminated.” (Bolding and capitalization in
original).
2
This section of the SAPCR order, entitled “Parent Denied Possession or
Access,” decrees the father:
Is not appointed possessory conservator of the children, and shall
not have possession or access, because the Court finds such
appointment would not be in the best interest of the children and
that possession or access by this parent would endanger the
physical or emotional welfare of the children.
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February 24, 2011, appointed counsel filed a motion to withdraw from representation
supported by an Anders brief.3
From the discussion that follows, we believe the trial court can determine
whether it signed a judgment containing clerical errors or whether it changed its
judgment from that orally rendered in open court to the signed writing. Judgment in the
former case is correctable nunc pro tunc, even on the trial court’s own motion.
Judgment in the latter instance is not.
Concerning the ability of a trial court to correct clerical errors nunc pro tunc, the
Texas Supreme Court in Coleman v. Zapp long ago explained:
The judgment of a court is what the court pronounces. Its rendition is the
judicial act by which the court settles and declares the decision of the law
upon the matters at issue. Its entry is the ministerial act by which an
enduring evidence of the judicial act is afforded. The failure of the minute
entry to correctly or fully recite what the court judicially determined does
not annul the act of the court, which remains the judgment of the court
notwithstanding its imperfect record. Hence it is that from the earliest
times the power of correcting or amending their records, by nunc pro tunc
entry, so as to faithfully recite their action, has been possessed and
exercised by the courts as an inherent right, independent of any statute,
and, in the absence of express provision, unaffected by limitation. . . . If a
court is made aware that, through mistake or omission, its records do not
recite its judgment as actually rendered, we do not doubt that it is not only
the right but the duty of the court, of its own motion and after due notice to
the parties, to order the proper entry. The nature of a judicial record, the
accuracy of which is the peculiar concern of the court and which for that
reason and to that extent remains within the court’s control, forbids that its
correctness as an expression or evidence of judicial action should depend
3
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); In re
A.W.T., 61 S.W.3d 87, 88 (Tex.App.--Amarillo 2001, no pet.) (per curiam) (finding
Anders procedures applicable to appeals of orders terminating parental rights).
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upon the inauguration of a proceeding by the parties, and it is therefore
plain that such a proceeding only invokes an authority which the court may
exercise of its own accord.
105 Tex. 491, 494, 151 S.W. 1040, 1041 (Tex. 1912) (citations omitted).
When confronting the question whether a judgment may be modified by an order
nunc pro tunc a trial court must determine if the change from the judgment first
announced was a clerical error or a judicial modification. Kostura v. Kostura, 469
S.W.2d 196, 198 (Tex.Civ.App.--Dallas 1971, writ ref’d n.r.e.). A clerical error is a
discrepancy between the entry of a judgment in the record and the judgment that was
actually rendered. Andrews v. Koch, 702 S.W.2d 584, 585 (Tex. 1986) (per curiam).
On the other hand, a judicial error arises from a mistake of law or fact that requires
judicial reasoning to correct. Butler v. Continental Airlines, Inc., 31 S.W.3d 642, 647
(Tex.App.--Houston [1st Dist.] 2000, pet. denied). A judgment nunc pro tunc allows a
trial court to correct a clerical error in the judgment after expiration of the trial court=s
plenary power. Escobar v. Escobar, 711 S.W.2d 230, 231-32 (Tex. 1986); Tex. R. Civ.
P. 316. But such power does not extend to correction of a judicial error made in
rendering a final judgment. Escobar, 711 S.W.2d at 231. Following expiration of its
plenary power, a trial court may only correct the entry of a final written judgment that
incorrectly states the judgment actually rendered. Id. at 231-32.
In Truelove v. Truelove, this court considered the sufficiency of a trial court’s
nunc pro tunc correction of a judgment that stated a material proposition contrary to the
trial court’s announcement of judgment. 266 S.W.2d 491 (Tex.Civ.App.--Amarillo 1953,
writ ref’d). Truelove was a will contest. A jury found the will was executed and procured
by undue influence. On this finding, the trial judge announced judgment for the
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contestants. The court, however, inadvertently signed the wrong form of judgment
which effectively set aside the jury finding and admitted the will to probate. The
judgment was filed and entered of record. On subsequent motion for entry of judgment
nunc pro tunc, the trial court set aside the erroneous judgment and signed a judgment
denying probate of the will. Id. at 492. Instructed by Coleman, this court concluded the
erroneous judgment was properly correctable by judgment nunc pro tunc. Id. at 493-94.
The supreme court refused an application for writ of error in Truelove and later followed
the decision in Andrews. 702 S.W.2d at 585.
We abate the appeal and remand the cause to the trial court. Tex. R. App. P.
44.4. On remand, the trial court shall, on proper notice and as soon as practicable,
conduct a hearing to determine whether either or both the termination order or the
SAPCR order incorrectly reflect the judgment of the court and, if so, whether the
mistake is a clerical error subject to correction nunc pro tunc. If the trial court concludes
either or both orders are incorrect and the mistake is a clerical error, then it shall sign an
order or orders nunc pro tunc correctly reflecting the judgment of the court.
Following the hearing, the trial court shall prepare findings of fact and
conclusions of law regarding all matters it considered in conjunction with this order. The
hearing shall be transcribed and included in a supplemental reporter’s record. The trial
court’s findings of fact and conclusions of law as well as any orders made in compliance
with this order and any orders or judgments nunc pro tunc, should such be signed by
the trial court, shall be included in a supplemental clerk’s record. The supplemental
reporter’s record and supplemental clerk’s record shall be filed with the clerk of this
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court on or before March 28, 2011. Should additional time be needed to perform these
tasks, the trial court may request same on or before March 28, 2011.
The appeal will remain abated until further order of this court. We take no action
at this time on the pending motion to withdraw filed by appointed appellate counsel for
the father and the mother.
It is so ordered.
Per Curiam
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