Ex Parte Williams

TEAGUE, Judge,

dissenting.

The record of this cause reflects that on August 17, 1981, after Nelson Earl Williams, hereinafter referred to as the applicant, entered a plea of guilty to the offense of aggravated robbery, the trial judge assessed his punishment at ten years’ confinement in the Department of Corrections, but then ordered that the applicant be placed on adult probation for ten years. The law, however, prohibited the trial judge from probating the punishment. See Art. 42.12, Sec. 3f(a)(l)(D), V.A.C.C.P. On July 13, 1984, almost three years later, in attacking the State’s motion to revoke the applicant’s probation, counsel for the applicant urged in the motion to quash that he filed that the applicant’s conviction was void because, inter alia, the trial judge did not have the lawful authority to probate the punishment. After the hearing on the motion to quash, even though the term of court in which the conviction had occurred *786had expired and the judgment of conviction had legally become final, the trial judge, sua sponte, set aside the applicant’s probation, for a reason not provided for in the provisions of Art. 42.12, supra, and sentenced him to serve ten years in the Department of Corrections. The motion to quash was thereafter denied. No hearing was conducted on the State’s motion to revoke the applicant’s probation. Almost two months later, the State’s motion to revoke the applicant’s probation was dismissed.1

The majority opinion states the following in footnote 8:

The fact that the trial court altered [sic] the sentence three years later is irrelevant to today’s opinion.

I am unable to agree with the statement contained in footnote 8 because if the trial judge did not have jurisdiction to set aside the probation of the applicant, that he, the trial judge, almost three years before had granted the applicant, and if the State is barred because of laches from obtaining a writ of mandamus, then the applicant’s plea of guilty is valid and not void, and the judgment and sentence in this cause should not be set aside on the basis that his plea of guilty is void for the reasons stated in the majority opinion. For the reasons I state herein, the conviction should be upheld, the “new” sentence set aside, and the applicant’s probation reinstated.

In disagreeing with the majority opinion’s statement in footnote 8, I acknowledge that the applicant does not complain in his application for writ of habeas corpus about the action of the trial judge in setting aside his probation. However, because the act of the trial judge did not occur in the same term of court when he placed the applicant on probation, and also because the judgment of conviction had become final, the question or issue whether the trial judge had jurisdiction to set aside the probation is before this Court and subject to review on this Court’s own motion. E.g. Lechuga v. State, 532 S.W.2d 581 (Tex.Cr.App.1976).

The error of the trial judge in unlawfully placing the applicant on probation was “judicial error” and not “clerical error.” When a trial judge acts pursuant to a false or mistaken conception or application of the law, such is “judicial error” and not “clerical error.” In Ex parte Pruitt, 139 Tex.Cr.R. 438, 141 S.W.2d 333 (App.1940), this Court stated the following about “judicial error”: “The judgment speaks the truth as to the [erroneous] punishment actually assessed against relator by the court. The mistake is one of law — a judicial error— and not one of fact. This being true the trial court is without power to correct the error after the term of court adjourned at which the judgment was entered.” (Citations omitted.) In this instance, the judgment also speaks the truth as to the punishment actually assessed; judicial error occurred when the trial judge unlawfully ordered the punishment probated.

It is, or should now be, axiomatic that if an unlawful punishment has been assessed by the trial judge, and the term of the trial court has expired or adjourned and the judgment of conviction has become final, as here, the trial judge is without jurisdiction, authority, or power to correct on his own the unlawful punishment that he assessed, nor may he at that late date, on his own, reassess the punishment. This rule of law is to be distinguished from “clerical error”, which is usually a mistake of commission or omission by a clerk, counsel, judge, or printer which is not the result of the exercise of a judicial function, and as such may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any, as the court *787orders. This is often called a “nunc pro tunc proceeding.” 229 Black’s Law Dictionary (1979 Edition). See Ramirez v. State, 587 S.W.2d 144 (Tex.Cr.App.1979). Cf. O’Hara v. State, 626 S.W.2d 32 (Tex.Cr.App.1982); Ex parte Voelkel, 517 S.W.2d 291 (Tex.Cr.App.1975); Ex parte O’Connor, 394 S.W.2d 815 (Tex.Cr.App.1965); Ex parte Pruitt, supra.

The judgment of conviction in this cause became final after the expiration of the time allowed for the filing of a motion for new trial or the filing of notice of appeal. In this instance, the applicant did not file a motion for new trial prior to the trial judge setting aside the probation, nor did he give notice of appeal prior to that time, nor did he ever complain in a post-conviction application for writ of habeas corpus of the action of the trial judge placing him on probation, at least prior to the State filing its motion to revoke his probation.2

Therefore, at the time when the trial judge set aside the applicant’s probation, not only had the term of court expired but the judgment of conviction was then final. After the term of court had expired and after the judgment of conviction had become final, other than to correct clerical errors, by way of a nunc pro tunc proceeding, the trial judge in this cause no longer had any jurisdiction to correct his error, although pursuant to the provisions of Art. 42.12, supra, he did have jurisdiction over the person of the applicant to take any action allowed by that statute. There is, however, no provision in Art. 42.12, supra, that would have permitted the trial judge to take the action he did in this cause — ordering that the applicant’s probation be set aside because he had unlawfully placed applicant on probation.

Although the ancient, historical, and legal phrase “term of court” is not often discussed by this Court, research reflects that it is and can be extremely important in our jurisprudence; especially in such situations as the one at bar.

The “term of court” is the time prescribed by law within which it may be in session to hear causes and transact judicial business. It signifies the period from the first day of the term fixed by law until court is adjourned to the next court in course. A “term of court” is to be distinguished from a “session” of the court. A “term of court” is the legally prescribed time for the actual holding of sessions of court within that time.3 Each occasion of such holding is a “session” of the court, and there may be as many or more sessions as there are days allotted to the term. A “term of court” continues until the call of the next succeeding term, unless it should affirmatively appear that before that time it had been adjourned sine die. Dees v. State, 28 So. 849, 78 Miss. 250 (Miss.1900), quoting Townshend v. Chew, 31 Md. 247.

The eighteenth century English legal historian Sir Henry Spelman traced the origin of “terms of court” to the canonical constitutions of the church. The canonical constitutions provided for four ordinary feasts *788of Hilary, Easter, Trinity, Michaelmas, being the names of the four terms of the courts of common law in England. These “terms” are described by Spelman as being no less than those leisure seasons of the year which were not occupied by the great festivals or feasts, and which were not liable to the general avocations of rural business. Putting it colloquially, what this means is that when there were no parties, there would be court, and when there were parties, there would be no court, which does not sound too bad. Although civilization and its attending commerce have in modern times extended the business of our courts beyond the limits of merely leisurely periods, nevertheless, “terms”, definite and fixed by law, are prescribed and are absolutely necessary to the successful administration of judicial duties. Horton v. Miller, 38 Pa.St. 270, 271 (2 Wright); State v. McHatton, 25 P. 1046, 10 Mont. 370 (Mont.1891). Also, a “term of court” is regarded in law as but one day or a unit of time, and all acts done within the term are regarded as having been done contemporaneously. People ex rel. Naber v. Wells, 99 N.E. 606, 607, 255 Ill. 450 (Ill.1912).

It has also been written that if a judgment or decree is entered, the record remains in the breast of the court, and the court may, at anytime during the term, amend it or set it aside on its own motion or, if good cause is shown by one of the parties, the court may amend or set the judgment aside — as justice and the right of the case may seem to require. The court retains jurisdiction of the parties and the subject-matter of the litigation until the end of the term, and the judgment or decree does not become final or pass beyond the court’s control until that time. Williams v. State, 145 Tex.Cr.R. 536, 170 S.W.2d 482, 486 (App.1943); Krieger v. Krieger, 77 N.E. 909, 911, 221 Ill. 479, Shannahan et al. v. Stevens, 28 N.E. 804, 139 Ill. 428 (Ill.1891). But, as noted, once the term of court has expired or adjourned, and. the judgment of conviction has become final, the court loses jurisdiction over the case, except in the instance where the defendant has been placed on probation, but the jurisdiction in that instance is limited by the provisions of Art. 42.12, supra.4 In this regard, see Langford v. State, 578 S.W.2d 737 (Tex.Cr.App.1979), in which a majority of this Court disagreed with the original panel opinion that was filed in that cause, see Langford v. State, 571 S.W.2d 326 (Tex.Cr.App.1978), but could not at that time do anything about the panel opinion because the term of this Court had expired and the judgment had become final before the State presented to this Court an untimely motion for leave to file for rehearing. Also see Ex parte Pruitt, supra.

I am aware of the fact that there might be many members of the bench and bar, including appellate court judges, who are unfamiliar with the meaning of the legal phrase “term of court”. This fact was truly brought home to me when I read the opinion by the Houston [14th] Court of Appeals dismissing the applicant’s appeal. Williams v. State, 692 S.W.2d 545 (Tex.App.-Houston [14th] 1985). The opinion, as well as the record of this cause, reflects that the applicant attempted to appeal to that court after the trial judge had ordered his probation set aside, sentenced him, overruled his motion for new trial, after which the applicant gave notice of appeal. The court of appeals, however, dismissed his appeal, holding that the notice of appeal in that cause had not been given timely, even though his probation had previously been set aside and notice of appeal was given immediately after the applicant’s motion for new trial was overruled in that cause. The court of appeals clearly erred in dismissing the appeal. Under Art. 44.08, V.A.C.C.P., the notice of appeal was timely given. Notwithstanding that the court of appeals erroneously dismissed the appeal, but relying upon this Court’s two judge pan*789el opinion of Villarreal v. State, 590 S.W.2d 938 (Tex.Cr.App.1979), it gratuitously remarked: “Under the curcumstances, the trial court technically possessed the authority to set aside the void portion of the judgment and enter a proper sentence.” (546).

The major reason that the two judge panel opinion of Villarreal v. State, supra, is wrong in holding that it was permissible for the trial judge in that cause, five months after he had assessed an unlawful punishment, to grant the State’s motion to reopen the punishment and assess a proper punishment, lies in the fact that it failed to take into consideration the terms of the trial court in that cause, as well as the fact that “the judgment of conviction” in that cause had become final. By statute, the terms for that court were fixed by the Legislature as follows: “The first Mondays in January, April, July, and October of each year.” Art. 199 (146), V.A.C.S. The record of that cause reflects that the unlawful punishment was assessed on August 16, 1978. The defendant did not file a motion for new trial or give notice of appeal. On March 28, 1979, the trial judge reassessed the defendant’s punishment. This clearly establishes that the reassessment of punishment not only occurred after the term of court in which the original punishment was assessed had expired or adjourned, but in addition clearly establishes that “the judgment of conviction” had long since become final when the reassessment of punishment occurred.

The second, but just as important, reason why Villarreal v. State, supra, was erroneously decided lies in the fact that, in light of the facts and the law then in existence, the two-judge-panel opinion’s reliance upon Cooper v. State, 527 S.W.2d 898 (Tex.Cr.App.1975); and Saunders v. State, 511 S.W.2d 281 (Tex.Cr.App.1974), was sorely misplaced.

In Cooper v. State, supra, the author of that opinion correctly held, albeit for the wrong reasons, that it was proper for the trial court to reassess the punishment after he discovered that the punishment he had previously assessed was an unlawful punishment. The reassessment of punishment in that cause occurred, however, during the same term of court in which the original conviction occurred; thus, the trial court still had jurisdiction over the case. As previously noted, it is only when the trial court’s term has expired that it may not thereafter on its own reform a judgment or reassess punishment, unless the error is a clerical error which may be corrected through a nunc pro tunc proceeding. Technically speaking, once the trial court’s term has expired, and the judgment of conviction has become final, the trial court has lost jurisdiction over the case. If the defendant is placed on adult probation, then, of course, jurisdiction continues but only to the extent provided by the provisions of Art. 42.12, supra.5 Thus, the trial judge in Cooper v. State, supra, because he acted during the same term of court in which the conviction had occurred, had authority to reassess the punishment, and that was all that needed to be stated in Cooper v. State, supra, in order to dispose of the defendant in that cause’s contention that the trial judge was without jurisdiction to reassess the punishment.

The opinion of Saunders v. State, supra, reflects that after the defendant in that cause was convicted he appealed his conviction to this Court, which, because the punishment that was assessed by the trial court was below the minimum, remanded the cause to the trial court to reassess the punishment. This was permissible because the judgment of conviction had not become final due to the appeal. Furthermore, an appellate court with jurisdiction over an appeal has the statutory authority either to reverse and remand the cause for a new trial, affirm the judgment of conviction, reform and correct the judgment, or may enter any other appropriate order, as the law and nature of the case may require. See Art. 44.24, V.A.C.C.P.

*790In this regard, if an unlawful punishment is assessed by the trial court, and the case is appealed, if the conviction is not ordered reversed, the appellate court will remand the cause to the trial court to assess the proper punishment. Saunders v. State, supra. Such will also occur if the defendant complains of an unlawful punishment that was assessed by the trial court in a post-conviction writ of habeas corpus. Ex parte Hill, 528 S.W.2d 125 (Tex.Cr.App.1975); Ex parte Murillo, 528 S.W.2d 127 (Tex.Cr.App.1975). But carefully note that it is the defendant, and no one else, by taking a direct appeal or by filing a post-conviction application for writ of habeas corpus, who requests that the unlawful punishment be disturbed. Of course, as noted, an appellate court with jurisdiction over the case can sua sponte remand the cause to the trial court for the assessment of a proper punishment, if the punishment was assessed by the trial judge. In the instance where the trial court has unlawfully reassessed a proper punishment, that is favorable to the defendant, and the defendant complains either on appeal or through a post-conviction application for writ of habeas corpus of the original punishment, this Court will not remand the cause to the trial court to reassess the punishment because that would be doing a useless act. “The trial judge, in reducing the sentence, has already done that which he would be expected to do on remand.” Miller v. State, 472 S.W.2d 269, 271 (Tex.Cr.App.1971); Wagoner v. State, 484 S.W.2d 868, 869 (Tex.Cr.App.1968). But cf. Cazares v. State, 488 S.W.2d 455, 457 (Tex.Cr.App.1972).

For the above and foregoing reasons, if Villarreal v. State, supra, stands for the proposition that a trial court has jurisdiction, authority, or power to reassess punishment after the term of court in which the conviction occurred has expired and, with the possible exception of “shock probation”, after the judgment of conviction has become final, and except where the defendant is placed on adult probation, it has jurisdiction over the case pursuant to the provisions of Art. 42.12, supra, then it should be quickly and expressly overruled by this Court.

Of course, in light of what I have stated, this leads me to now resolve the very important question: What if an unlawful punishment has been assessed, the defendant never complains, the term of court has expired, and the judgment of conviction has become final? Is the State without any lawful remedy? Certainly not. If a trial judge assesses an unlawful or unauthorized punishment, the State’s remedy is to seek a writ of mandamus against the trial judge, unless it is prohibited from doing so because of laches. See State ex rel. Vance v. Hatten, 508 S.W.2d 625 (Tex.Cr.App.1974); Cathey & Carrell et al. v. Terrell, Railroad Com’r, et al., 121 Tex. 130, 45 S.W.2d 956 (Sup.1932). Of course, the State may not seek a new trial. See Ramirez v. State, supra; Castro v. State, 118 Tex.Cr.R. 53, 42 S.W.2d 779 (App.1931). In this instance, prior to when the trial judge in this cause set aside the applicant’s probation, the State never sought to void his unlawful act of placing the applicant on probation by seeking a writ of mandamus, even though the State knew or should have known that the trial judge’s act in probating the punishment was not authorized by statute. In light of the fact that the trial judge in this cause was the same one in State ex rel. Vance v. Hatten, supra, the State was certainly experienced in how to find this Court in order to obtain a writ of mandamus against the trial judge — to order him to reform the punishment that was assessed, by deleting from the judgment the order probating the applicant’s punishment. But, the State did not do anything prior to the hearing on the applicant’s motion to quash the State’s motion to revoke the probation to have the trial court’s order placing the applicant on probation set aside. Because of laches, it may not now obtain a writ of mandamus.

In closing, I will be the first to concede that if the law is to be given meaning, it calls for a strange result in this cause. But, unless and until the law is changed by *791the Legislature, because of stare decisis, we must give meaning to the law.

In this instance, the majority should hold, not that the applicant is entitled to have his plea of guilty set aside, but only that he is entitled to have his probation reinstated. Cf. Ex parte Stansbery, 702 S.W.2d 643, (Tex.Cr.App.1986).

I respectfully dissent to the majority’s holding and its failure to reinstate the applicant’s probation.

. Interestingly, had there been a hearing on the State’s motion to revoke and thereafter the trial judge had granted the motion and revoked the probation, the applicant could not have complained on appeal that his conviction was void because the trial judge was without authority to place him on probation. See Branch v. State, 477 S.W.2d 893 (Tex.Cr.App.1972); Tamez v. State, 620 S.W.2d 586 (Tex.Cr.App.1981). "If the court did not have authority to grant probation, there is no error in its revocation.” Branch, supra, at page 896.

. Of course, had the applicant initiated the complaint, either on direct appeal or by way of post-conviction habeas corpus, that the trial judge was without lawful authority to order his punishment probated, either an intermediate appellate court or this Court would have granted him relief by ordering the cause remanded to the trial court for proper assessment of punishment by the trial judge. Cf. Miller v. State, 472 S.W.2d 269 (Tex.Cr.App.1971); Wagoner v. State, 434 S.W.2d 868 (Tex.Cr.App.1968). If a jury assesses an unlawful punishment, and the defendant properly complains, the defendant must be granted a complete new trial. See the cases cited in Ocker v. State, 477 S.W.2d 288 (Tex.Cr.App.1972). But also see Senate Bill 1349, Acts, 69th Leg., effective June 11, 1985, which provides that a verdict and judgment may now be reformed when an unauthorized punishment has been assessed by a jury. See Ex parte Johnson, 697 S.W.2d 605 (Tex.Cr.App.1985).

. Pursuant to the provisions of Art. 199 (176), V.A.C.S., the trial court in this cause has four terms each year, one term beginning the first Monday in May, one term beginning on the first Monday in August, one term beginning on the first Monday in November, and one term beginning on the first Monday February of each year. Art. 199 (176), V.A.C.S. Thus, the term of court in which the applicant was placed on adult probation had long since expired when the trial judge ordered the applicant’s probation set aside.

. An exception to this rule involves "shock probation”. In that instance, even though the judgment of conviction has become final and the defendant has commenced serving his sentence, with certain exceptions, the trial judge still has jurisdiction to place the defendant on probation. See Art. 42.12, Sec. 3e, supra.

. Also see footnote 4, ante.