Court of Appeals of Texas, Sixth District, Texarkana
Submitted: October 24, 2019
Appeal from the 115th District Court Upshur County, Texas
Trial Court No. 682-17
Morriss, C.J., Burgess and Stevens, JJ.
R. Morriss, III Chief Justice.
petition of the Texas Department of Family and Protective
Services (the Department), the trial court orally rendered
judgment that Walt's parental rights to
be terminated on multiple statutory grounds. 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
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.
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.
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.
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
The Trial Court Entered a Valid Judgment Nunc Pro Tunc
Reflecting the Judgment Rendered
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
trial court has lost its jurisdiction 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
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 ...