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In re F.J.

Court of Appeals of Texas, Sixth District, Texarkana

October 25, 2019

IN THE INTEREST OF F.J., A CHILD

          Submitted: October 24, 2019

          On Appeal from the 115th District Court Upshur County, Texas Trial Court No. 682-17

          Before Morriss, C.J., Burgess and Stevens, JJ.

          MEMORANDUM OPINION

          Josh R. Morriss, III Chief Justice.

         On the petition of the Texas Department of Family and Protective Services (the Department), the trial court orally rendered judgment that Walt's parental rights to F.J.[1] be terminated on multiple statutory grounds.[2] However, the trial court's written Order of Termination failed to recite any statutory grounds for the termination of Walt's parental rights. While this case was on appeal, the trial court entered its Judgment Nunc Pro Tunc explicitly terminating Walt's parental rights to F.J. on statutory grounds (C), (E), (N), and (O). On appeal, Walt challenges the validity of both the Order of Termination and the Judgment Nunc Pro Tunc. Because (1) the trial court entered a valid Judgment Nunc Pro Tunc reflecting the judgment rendered and (2) Walt's complaint regarding the Order of Termination is moot, we affirm the judgment of the trial court.

         The Department's original petition to terminate Walt's parental rights to F.J. included statutory grounds (C), (E), (N), and (O). At the conclusion of a trial on the merits, the trial court stated:

Based on the evidence before the Court, the Court finds that the Department has met their burden of proof by clear and convincing evidence that the parental rights of the Respondent father, [Walt], should be terminated, and that's based on the grounds commonly known as (N), (O), (C), and (E), and the Court separately finds that termination subject of this suit would be in her best interest. Those two prongs having been met, it's the order of the court that the parental rights of [Walt] to the child subject of this suit, [F.J.], are now terminated.

         Nevertheless, when the trial court entered its Order of Termination two weeks later, it based the termination of Walt's parental rights solely on its best-interest finding, without any reference to any statutory ground.

         In his initial brief on appeal, Walt challenged the validity of the Order of Termination based on its lack of any statutory grounds for termination. In response to Walt's initial brief, the Department and the attorney ad litem for F.J. filed in the trial court a Joint Motion for Correction of Clerical Mistake in Judgment Record pursuant to Rule 316 of the Texas Rules of Civil Procedure and obtained an order setting a hearing on their motion.

         On September 13, 2019, the trial court heard the motion and received testimony from Corinne Cain, the conservatorship supervisor for Child Protective Services in Upshur County. Cain testified that she had prepared the Order of Termination that was entered in the case, but that, based on the reporter's record of the hearing, the order did not conform to the ruling that the court had made from the bench. She also testified that the proposed Judgment Nunc Pro Tunc, based on both the reporter's record and her memory of the trial, conformed to the judgment the trial court had orally rendered. The Department also offered the reporter's record for the trial court's review, and Walt's counsel affirmed to the trial court that the proposed Judgment Nunc Pro Tunc correctly reflected the judgment the trial court had orally rendered. The trial court then entered its Judgment Nunc Pro Tunc, which terminated Walt's parental rights based on statutory grounds (C), (E), (N), and (O). After receiving the supplemental clerk's record containing the judgment nunc pro tunc, we notified the parties that we would allow them to submit supplemental briefs.

         (1) The Trial Court Entered a Valid Judgment Nunc Pro Tunc Reflecting the Judgment Rendered

         Walt challenges the validity of the Judgment Nunc Pro Tunc. Although Walt acknowledges that the Judgment Nunc Pro Tunc conforms to the judgment orally rendered by the trial court, he argues that, since the error in drafting was that of a party, i.e., the Department, the error may not be corrected by a judgment nunc pro tunc. Under the facts of this case, we disagree.

         When a trial court has lost its jurisdiction[3] over a judgment, "it can correct only clerical errors in the judgment by judgment nunc pro tunc." Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex. 1986). "A clerical error is one which does not result from judicial reasoning or determination." Tex. Dep't of Transp. v. A.P.I. Pipe & Supply, LLC, 397 S.W.3d 162, 167 (Tex. 2013) (quoting Andrews v. Koch, 702 S.W.2d 584, 585 (Tex. 1986) (per curiam)). If it corrects only a clerical error, "[e]ven a significant alteration to the original judgment may be accomplished through a judgment nunc pro tunc." Id. (citing Andrews, 702 S.W.2d at 584-86).

         "[T]he trial court has plenary power to correct a clerical error made in entering a final judgment," but it "cannot correct a judicial error made in rendering a final judgment." Id. (citing Comet Aluminum Co. v. Dibrell, 450 S.W.2d 56, 58 (Tex. 1970)). Thus, a "judicial error is an error which occurs in the rendering as opposed to the entering of a judgment." Id. (citing Comet, 450 S.W.2d at 58). In determining whether a correction addresses a judicial error or a clerical error, "we look to the judgment actually rendered, not the judgment that should or might have been rendered." Id. (citing Coleman v. Zapp, 151 S.W. 1040 (Tex. 1912)). Only a final ...


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