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In re X.A.

Court of Appeals of Texas, First District

January 16, 2020

IN RE X.A., Relator

          Original Proceeding on Petition for Writ of Mandamus

          Panel consists of Chief Justice Radack and Justices Landau and Hightower.


          PER CURIAM

         Relator, X. A., filed a petition for a writ of mandamus seeking to compel the trial court to: (1) vacate its March 26, 2019 order denying relator's "Motion to Dismiss for Lack of Jurisdiction and Objections to Proceedings;" (2) vacate the October 25, 2017 Nunc Pro Tunc Judgment; and (3) dismiss the State's petition to modify disposition and request to transfer X.A.'s probation to Adult Community Supervision.[1] This Court requested and received a response from the real party in interest, the State of Texas. We conditionally grant the petition.


         This mandamus petition arises from a juvenile court proceeding in which the State filed a petition alleging that X.A. had engaged in the delinquent conduct of aggravated assault. X.A. signed a stipulation of evidence confessing to delinquent conduct in return for the State's recommendation of four years' probation. The trial court signed a determinate sentencing[2] judgment on April 25, 2016 in accordance with the plea bargain, assessing four years' probation. The judgment also stated that appellant would be "under the jurisdiction of [the trial court] and shall continue its care, guidance, and control from 4/25/16 or until said Respondent becomes eighteen (18) years of age[3] unless discharged prior to and subject to subsequent and additional proceedings under the provisions made by the statute . . . ."

         In October 2017, the State moved for a nunc pro tunc order to change the original determinate sentencing judgment's three statements regarding the trial court's jurisdiction over X.A. until he became 18 years old.[4] The State asked that each of these references to X.A.'s 18th birthday be changed to reference his 19th birthday. Attached to this motion was an affidavit by the district attorney stating that the plea bargain was for probation for 4 years or until X.A. turned 19 years old[5] and thus, the district attorney asserted that the determinate sentence did not accurately reflect the plea agreement for the trial court to have supervision over X.A. until he turned 19. The trial court granted the State's motion on October 25, 2017 and signed a nunc pro tunc order changing all judgment references to X.A.'s 18th birthday to his 19th birthday.

         On January 30, 2019, the State filed a petition to modify disposition, claiming that X.A. violated certain terms of his probation by failing to enroll or provide proof of enrollment in school and by failing to attend the Dapa Family Recovery Program as ordered by his juvenile probation officer. The State also noted that X.A. failed to complete a substance abuse assessment. The State also requested a transfer of X.A.'s probation to Adult Community Supervision.

         X.A. filed a motion to dismiss the State's petition for lack of jurisdiction, claiming that the trial court lacked jurisdiction over X.A. because he was over 18 years old and the nunc pro tunc order was void under this Court's holding in In re J.A., No. 01-17-00645-CV, 2017 WL 6327356 (Tex. App.-Houston [1st Dist.] Dec. 12, 2017, orig. proceeding). After a hearing on the motion to dismiss, the trial court denied X.A.'s motion to dismiss.[6] On April 1, 2019, the trial court signed an order transferring X.A.'s determinate probation to adult district court, noting that his probation ends on April 24, 2020.

         Standard of Review

         Mandamus is an extraordinary remedy, available only when the relator can show both that: (1) the trial court clearly abused its discretion or violated a duty imposed by law; and (2) there is no adequate remedy by way of appeal. In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). Mandamus relief is proper when the trial court issues a void order, and the relator need not demonstrate the lack of an adequate remedy by appeal. See In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding).


         A. Jurisdiction to Enter a Nunc Pro Tunc Order

         "A trial court retains jurisdiction over a case for a minimum of thirty days after signing a final judgment," during which time the trial court has plenary power to change its judgment. See Lane Bank Equip. Co. v. Smith So. Equip., Inc., 10 S.W.3d 308, 310 (Tex. 2000). A trial court may correct a judgment by nunc pro tunc even after plenary power has expired but only to correct a clerical error in the judgment. ...

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