In the Matter of C.M., a Child v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: May 15, 2024
• Docket: 05-24-00115-CV
• Status: Published

Opinion

DISMISS and Opinion Filed May 15, 2024

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-24-00115-CV

IN THE MATTER OF C.M., A CHILD

On Appeal from the 304th Judicial District Court Dallas County, Texas Trial Court Cause No. JD-44063-W

MEMORANDUM OPINION Before Justices Garcia, Breedlove, and Kennedy Opinion by Justice Garcia We questioned our jurisdiction over this appeal from the trial court’s February

1, 2024 order denying appellant’s application for writ of habeas corpus as the order

appeared void and unreviewable on appeal. See In re M.K., 514 S.W.3d 369, 390

(Tex. App.—Fort Worth 2017, no pet.) (holding when an appeal is taken from a void

order, an appellate court’s jurisdiction is limited to vacating the order and dismissing

the appeal).

The trial court denied appellant’s Application for Writ of Habeas Corpus and

Motion for Default Judgment on September 16, 2022. Appellant did not file a motion

for new trial and the trial court’s plenary power expired on October 17, 2022. TEX. R. CIV. P. 329(b)(d). After gaining constructive notice of the court’s order in

September of 2023, on December 22, 2023, appellant filed a Motion to Gain

Additional Time to Appeal and Corrected Judgment. Appellant alleged that he had

not been provided notice of the order by the clerk of the court as required under Rule

306a. TEX. R. CIV. P. 306a. Appellant requested the trial court “correct” the order

pursuant to Texas Rule of Civil Procedure 306a in order to restart the appellate

deadlines. The State did not oppose the motion and the court “corrected” the order

on February 1, 2024 by signing a new order with that date.

Rule 306a(4) provides that the period under Rule 329b during which the trial

court has plenary power over its final judgment begins on the date that such party or

the party’s attorney received such notice or acquired actual knowledge of the

signing, whichever occurred first, but “in no event shall such periods begin more

than ninety days after the original judgment or other appealable order was signed.”

TEX. R. CIV. P. 306a(4). The Supreme Court of Texas has held that the exception

under Rule 306a(4) does not apply if the party and the party’s attorney do not receive

the notice required by Rule 306a(3) or acquire actual knowledge of the judgment or

order within ninety days after the trial court signed the judgment or order. See Levit

v. Adams, 850 S.W.2d 469, 469–70 (Tex. 1993) (per curiam).

In appellant’s affidavit submitted in support of the motion to gain time and

corrected judgment, appellant stated he first received notice of the order denying his

habeas petition on September 1, 2023—350 days after the order was signed on

–2– September 16, 2022. Accordingly, rule 306a does not apply and cannot serve to

extend the trial court’s plenary power because appellant learned of the trial court’s

order more than ninety days after it was signed. Id. (noting that in such cases a bill

of review is the proper method of seeking relief).

At our direction, appellant filed a letter brief addressing our concern. In his

letter, appellant now argues this Court should deem the new order a “corrected”

order and thus a nunc pro tunc order pursuant to rule 316 of the Rules of Civil

Procedure. TEX. R. CIV. P. 316. While a trial court may issue a nunc pro tunc order

following the expiration of its plenary power to correct a clerical error made in the

order, a trial court may not do so to correct a judicial error made in rendering a final

order. In re A.M.C., 491 S.W.3d 62, 66 (Tex. 2016); Escobar v. Escobar, 711 S.W.2d

230, 231 (Tex.1986).

Appellant acknowledges that a clerical error is a mistake or omission that

prevents the order as entered from reflecting the order as rendered. Operation

Rescue–Nat’l v. Planned Parenthood of Houston & Se. Tex., Inc., 937 S.W.2d 60,

86 (Tex. App.—Houston [14th Dist.] 1996), aff’d as modified, 975 S.W.2d 546

(Tex. 1998). Yet, appellant claims “the failure of the district clerk to timely serve

Appellant with the court’s order of September 16, 2022, was a clerical error because

no judicial reasoning occurred in the failure to properly serve Appellant.” We

disagree. The trial court rendered its order denying appellant’s habeas application

on that date, and the order correctly reflects the court’s rendition. See Lung v. Varga,

–3– 400 S.W.2d 1, 3 (Tex. App.—Austin 1966, no writ) (holding where court made no

mistakes in first judgment and none were corrected in second judgment, appellant

could not maintain appeal on theory that he proceeded under rule 316). Any error

was in the clerk’s failure to provide notice of the order; there was no error on its

face. Thus, the act of modifying the order by changing the date was not the correction

of a clerical error. As such, it was not permissible pursuant to Rule 316.

The trial court lacked plenary power to sign the February 1, 2024 order, and

the order is void. See Pipes v. Hemmingway, 368 S.W.3d 438, 445 (Tex. App.—

Dallas 2012, no pet.). Because the appealed order was signed outside the trial court’s

plenary power, we lack jurisdiction to consider the merits of the appeal.

Accordingly, we vacate the February 1, 2024 order and dismiss the appeal. See M.K.,

514 S.W.3d at 390. The September 16, 2022 order is the final order in the case.

/Dennise Garcia/ DENNISE GARCIA 240115F.P05 JUSTICE

–4– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

IN THE MATTER OF C.M., A On Appeal from the 304th Judicial CHILD District Court, Dallas County, Texas Trial Court Cause No. JD-44063-W. No. 05-24-00115-CV Opinion delivered by Justice Garcia. Justices Breedlove and Kennedy participating.

In accordance with this Court’s opinion of this date, the appeal is DISMISSED for want of jurisdiction.

Judgment entered this 15th day of May 2024.

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