dissenting.
The facts show that on November 20, 1976, the surety, Marvin Miller, made six bail bonds for the principal, Lawrence Tatsch, causing Tatsch to be released from the custody of the sheriff of Bexar County. On February 21, 1978, the causes were called for trial, but Tatsch did not appear and the bail bonds were ordered forfeited. A judgment nisi subsequently issued to make the forfeiture final, the surety was served, and he filed a sworn answer to the State’s motion for summary judgment, alleging, inter alia, that the bail bonds were insufficient in law to warrant an adjudication of liability against him in favor of the State. See and compare Balboa v. State, Tex.Cr.App., 612 S.W.2d 553 (1981).
On March 20, 1979, the State filed a sworn motion for summary judgment, merely setting forth the prior events relating to the filing of the judgment nisi. A hearing was set for April 13, 1979. An amended judgment nisi was apparently filed on March 27,1979, correcting an erroneous date: the original judgment nisi alleged erroneously the date of November 20, 1976, which was, as noted, the date the bail bonds were made and not the date of the forfeitures. Another sworn pleading in answer thereto was filed on April 11, 1979, and the matter was reset for May 4, 1979, reset again for May 11, 1979, and was thereafter reset for July 27, 1979, but not heard.
On August 22, 1979, another amended motion for summary judgment was filed, but was not sworn to. A hearing was set for October 5, 1979. The surety filed a first amended answer to this pleading, alleging and swearing to what he had sworn to and alleged earlier. In addition, the surety filed a “Response to Amended Motion for Summary Judgment,” setting out why the State’s motion for summary judgment was insufficient under law, and also filed a sworn “Motion to Quash Notice and Setting for Summary Judgment.” On the hearing date, the attorney representing the State filed a sworn affidavit signed by D. Premont, who appears to be a secretary in the Bexar County District Clerk’s office, in support of his motion for summary judgment. The matter was then reset again until November 30, 1979.
On November 30, 1979, a “trial” was held before the Hon. H.F. Garcia, presiding judge of the 144th Judicial District Court of Bexar County. On December 6, 1979, Judge Garcia signed a “Final Judgment,” which was recorded in the minutes of the court. The “Final Judgment” states in pertinent part:
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It appearing to the Court after consideration of the pleadings and evidence herein that no sufficient cause is shown why Defendant, LAWRENCE TATSCH, did not appear in this Court on the 31ST DAY OF FEBRUARY, A.D., 1978, to answer THE STATE OF TEXAS on the charge by indictment herein filed and then pending, accusing Defendant of a felony, and that Judgment Nisi heretofore rendered against the said Defendant, LAWRENCE TATSCH, as Principal, and against MARVIN MILLER SURETY, on the bail bond of the said LAWRENCE TATSCH, should not be made final. However, certain equitable grounds exist for remission of part of the principal sum;
It is therefore, ORDERED, ADJUDGED AND DECREED that Plaintiff do have and recover of and from the said LAWRENCE TATSCH PRINCIPAL, the sum of TEN THOUSAND DOLLARS (10,000.00), with interest on such sum at the rate of 9 per cent per annum from date of judgment and cost of suit, for all of which let execution issue. (Emphasis added and supplied hereafter by the writer unless otherwise indicated.)
Thereafter, on December 14, 1979, the surety filed a motion for new trial, claiming the trial court erred in various ways at the “trial” on the motion for summary judg*590ment. An amended motion for new trial was later filed on December 28, 1979. Interestingly, these instruments make no reference to the principal, Lawrence Tatsch. As noted, by the “Final Judgement,” Judge Garcia stated therein, in part: “however, certain equitable grounds exist for remission of part of the principal sum.” To what or to whom this is directed is not shown by the “Final Judgment.” A hearing on the motions for new trial was set for January 18, 1980, but was then reset for February 22,1980. The attorney for the State filed a motion to deny the motion for new trial.
Finally, on February 22, 1980, a hearing was held and the trial court entered an order denying the amended motion for new trial. It provides, in part:
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It is therefore ORDERED that the Judgment entered in this cause on the 6th day of December, 1979, be and it is hereby final and that Surety Defendant’s Amended Motion for New Trial is hereby denied.
The surety gave notice of appeal on February 28, 1980, posted a cost bond, and actively pursued his appeal until April 15, 1980, at which time he filed an instrument entitled “Motion to Discontinue Appeal,” stating therein that “inasmuch as the court did not render Judgment against him personally in the above numbered and entitled cause, he has no standing to appeal said judgment.” The attorney for the State thereafter filed an application to enter a judgment nunc pro tunc alleging, among other things: “That a judgment was subsequently prepared from a dictation form book by a clerical employee of the Bexar County District Attorney’s Office.” “As a result of clerical error the name of the defendant-surety Marvin Miller was omitted from the judgment.” “This judgment was given to a clerical employee of the Bexar County District Clerk’s Office who took it to the Judge of the 144th Judicial District Court for signature.” “As a result, the judgment that was signed and entered on the 6th day of December 1979 is at variance with the judgment that was actually rendered.” Interestingly, another allegation made is that it was the day before the surety moved to dismiss his appeal that the attorneys for the State learned of the omission. The surety filed an objection and a supplemental objection to the entry of a judgment nunc pro tunc alleging, among other things, that “the State cannot hide behind the skirts of a secretary.”
A hearing on the State’s motion was then set for May 2, 1980, then reset for July 2, 1980, again reset for July 17, 1980, and finally held on September 8, 1980, at which time a “Judgment Nunc Pro Tunc” was prepared and signed by Judge Edward C. Prado, the then presiding judge. Notice of appeal was thereafter given by the surety on September 10, 1980, and a supersedeas bond was posted. Due to objections to the judgment nunc pro tunc, an amended judgment nunc pro tunc was entered, signed and filed on September 23, 1980.
A transcription of the “trial” held on November 30, 1979, reveals, in pertinent part, the following:
THE COURT: All right. Then, in reviewing the motions for summary judgments filed by the State in all of these cases, the Court is going to grant the State’s motion for a summary judgment in each one of these cases. The State will prepare a judgment accordingly.
MR. VALDEZ: The Defendant objects to the ruling of the Court and notes its exception and states that there are several fact issues which are not resolved which the Court should have taken into consideration. I have been advised by the State that they plan to file a motion for a new trial as soon as the judgment is entered.
There is also a transcription of the hearing held on July 17, 1980 in the record. At that hearing, it was shown that the attorney for the State, after the hearing that day, returned to his office, wrote on the file, “Summary Judgment Granted,” gave it to a Ms. Stella Garcia, his secretary, “and told her to type up the judgments on them *591... I just dumped them on her desk and said make me some judgments on them ... She is a paralegal ... She is a secretary in the office and she knew what was going on ... I mean, I assume that she knew what was going on ... But I don’t know what happened to them after I gave them to Stella.” Stella Garcia testified that the nature of her work in the District Attorney’s Office is “Clerical” in nature. She testified that the attorneys would “bring me the file and write the instructions in the file ... I do whatever is written on the file ... He would hand me the file and tell me what had happened, and tell me what I was supposed to do.” In this instance, the file reflects: “On 11-30-79, judgment granted, H.C.,” which refers to Hippolito Canales, who was then attorney for the State. When she received the file, she would then “write that down on a tablet and turn that into the typing center.” When the “typing center” got through, she would take the final instruments to the District Clerk’s bond forfeiture secretary and give them, usually, to Ms. Dee Pre-mont, see supra, or one of her assistants. Apparently, no one proofread what was typed at the “typing center” to see if errors of any kind had occurred. Judge Garcia also testified and, over objection, stated, regarding the hearing on the judgment nisi, that it was his “intent” that the judgment was to be against both the principal and the surety. Judge Garcia testified that when the judgment was presented to him for signature, he did not mistakenly sign it. “I signed that judgment.” “They brought me the wrong judgment.” As far as Judge Garcia was concerned, the overruling of the motion for new trial on February 22, 1980 ended the matter.
The majority construes the error mentioned above as one of “clerical error” not “judicial error” and, relying on Alvarez v. State, 605 S.W.2d 615 (1980), holds that the actions below were proper and upholds, by affirming the trial court, the entry of the nunc pro tunc judgment.
Alvarez, supra, is simply not in point to the issue before the Court. In Alvarez, the record showed that, due to an error in preparation by the Deputy District Clerk of Tarrant County, the final judgment recited the wrong court in which the judgment nisi had been made final. This was held to be clerical error. Even though 30 days had passed after the entry of the final judgment, the trial court retained the power to enter a nunc pro tunc order correcting this “clerical error.” That is a far cry from the facts here, as there the erroneous entry regarding which court had heard the case is most assuredly “clerical error,” and not “judicial error.”
Judge Davis, the author of the majority opinion, remarked years ago in a footnote:
A correction can be made to reflect what actually occurred at trial by entry of nunc pro tunc judgment, but correction can be only as to what was done and not as to what should have been done. Chaney v. State, 494 S.W.2d 813, 814 (1973).
The majority’s holding allows the State to make a correction to show what should have been done, not what was done at the hearing on the motion for summary judgment. Where is there “clerical error” to warrant a judgment nunc pro tunc in this cause?
The State filed an “Amended Motion for Summary Judgment,” praying merely: “Wherefore, Plaintiff prays that Summary Judgment be entered in its favor for the sum of TEN THOUSAND DOLLARS ($10,-000.00), and costs, and for whatever other relief to which it may show itself entitled,” without naming either Tatsch or Miller or for whom or against whom the judgment, if granted, was to run. Defendant Miller filed an answer setting out what he alleged to be fact issues. However, after a hearing, the trial court judge told the state’s attorney, “The State will prepare a judgment accordingly,” after ruling that: “The Court is going to grant the State’s motion for a summary judgment in each of these cases.” Interestingly, when the court made this statement, counsel for Miller said: “I have been advised by the State that they plan to file a motion for a new *592trial as soon as the judgment is entered.” Defendant Miller did file a motion for new trial, a hearing was held thereon, and it was overruled. But, after the hearing on the motion for summary judgment, what happened? The attorney for the State went back to his office, gave his “clerk,” “secretary” or “para-legal” a scribbled note, whereupon she took the note and the file to the “typist center,” a final judgment was typed up, delivered to a clerk-secretary-para-legal, who then took ⅜ to another clerk-secretary-para-legal, who then took it to the trial judge who signed it, and it was filed of record for all the world to see. A hearing on the motion for new trial was held, almost 10 weeks after the judgment was signed and entered, but no complaint was ever made about the form or contents of the final judgment. The only complaint was that the trial court had ruled incorrectly on the State’s motions for summary judgment. It was seven weeks later that an attorney for the State, realizing finally that the final judgment did not read satisfactorily to him, filed a motion for a judgment nunc pro tunc upon the ground that the omission in the final judgment was a “clerical error.”
There should be no question that if the attorney representing the State had filed a bill of review, he would be poured out of court.
But, whether we call this a bill of review or a nunc pro tunc proceeding, what the majority overlooks is that principle of law that it is fundamentally important in the administration of justice that some finality be accorded to judgments and the rules are not to be relaxed merely because it may appear in some particular case that an injustice has been done. Compare Alexander v. Hagedorn, 220 S.W.2d 196 (Tex.Civ.App.—Austin 1949), rev’d 226 S.W.2d 996 (Tex.1950).
I find that on March 20, 1979, the attorney for the State filed a motion for summary judgment, stating nothing more than: “This motion is based upon certain instruments,” without naming anyone either in the introductory paragraph or in the prayer. The same is true of the amended motion for summary judgment filed on August 22, 1979. At the hearing, the only thing Judge Garcia said that is pertinent to our discussion was “All right. Then, in reviewing the motions for summary judgments filed by the State in all of these cases, the Court is going to grant the State’s motion for a summary judgment in each one of these cases.” “The State will prepare a judgment accordingly.” And the State did, but the final judgment goes only to the principal and not the surety, Miller. From December 6, 1979, until April 14, 1970, not one single person, including the attorney for the State, his “clerk,” or the judge challenged the validity of that judgment. The only person who took any affirmative action toward the judgment was Miller.
If we are to let the parties or the trial court judge later challenge, under such facts as are here shown, the validity of a final judgment, then we might as well throw away the book on judgments, for almost any trial attorney or, for that matter, almost any trial judge will admit, if given a later opportunity, there is not a judgment in this world that cannot be improved in both its wording and its contents.
I would find that the acts here constitute that of a judicial function, i.e., the exercise of judicial function or office, and not clerical error, as that term is defined by law. The office of nunc pro tunc is not to supply omitted action, or to show “intent,” but is rather to supply an omission in the record of the action really had but omitted through inadvertence or mistake.
A clerical error is a mistake in writing or copying. As more specifically applied to judgments and decrees a clerical error is a mistake or omission by a clerk, counsel, judge or printer which is not the result of the exercise of the judicial function. In other words, a clerical error is one which cannot reasonably be attributed to the exercise of judicial consideration or discretion. (Citations omitted.)
A judicial error, on the other hand, is one made when the court reaches an *593incorrect result in the intentional exercise of the judicial function. It occurs when a judge reaches a wrong or incorrect decision in deciding a judicial question. (Citations omitted.) In re Humbdoldt River System, 77 Nev. 244, 362 P.2d 265 (1961).
Recently, the Amarillo Court of Civil Appeals, In the Matter of the Marriage of Dunn, 589 S.W.2d 166 (Tex.Civ.App.—Amarillo 1979), was confronted with a nunc pro tunc situation where the attorneys who had prepared the original judgment had omitted a reference to specific adjudication of the parties’ liability for payment of income taxes. The former wife brought the action, alleging “that it was the original intention of the Court that all income taxes traceable to properties received by Respondent [the husband] should be born by Respondent ...” The trial court found the allegations were true and granted judgment nunc pro tunc. The appeals court reversed. There, Chief Justice Reynolds, speaking for a unanimous court, said:
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... The judgment prepared was the judgment signed. There may have been a mistake in failing to declare the judge’s intention when the judgment was rendered, but, if so, the rendition of judgment was a judicial act, Love v. State Bank & Trust Co. of San Antonio, 126 Tex. 591, 90 S.W.2d 819, 821 (1936), which cannot be amended nunc pro tunc. Miller v. Texas Life Ins. Co., 123 S.W.2d 756, 759 (Tex.Civ.App.—Dallas 1938, writ ref’d). Therefore, the judge was powerless to reopen the controversy as closed and sealed by the original judgment and to materially alter its terms by judgment nunc pro tunc. McHone v. Gibbs, 469 S.W.2d 789, 790-91 (Tex.1971).
It may appear facially that the attorney for the State got “sandbagged,” but one who contends that he was sandbagged, when he had had the judgment prepared, his office had carried it to the court for signature, the court had signed it as presented and prepared by the attorney for the State, and then he had attended a hearing on a motion for new trial where the sole issue at that hearing was the validity of the judgment then in existence, is not wholly ingenuous. I believe the majority is adopting a new rule of law in the field of judgments nunc pro tunc. There is the clerical error rule, the judicial error rule, and the hiding behind the skirt rule, the last rule, according to the majority today, being supreme.
I respectfully dissent.
Before the court en banc.