INTEREST OF v. << (2026)

OPINION

A trial court may correct a clerical error in its judgment at any time, but once its plenary power expires, it may not correct any other kind of error. The trial court here signed a judgment nunc pro tunc deleting a sentence from its final order that did not conform to the parties' mediated settlement agreement. Because the judgment nunc pro tunc corrected a judicial error, rather than a clerical one, that judgment is void. We vacate it and reinstate the trial court's February 16, 2024 order.

Background

The underlying proceeding is a child custody suit between Dustin Barrett and Hartley Garza, who share three children. On April 21, 2023, the parties signed a mediated settlement agreement. The MSA required Barrett, beginning July 1, 2023, to reimburse Garza for the children's medical, dental, and vision insurance premiums she paid through her employer. The reimbursement would be paid as additional child support through the Texas Attorney General. After the trial court declined to enter judgment on the MSA, this court conditionally granted mandamus relief and directed it to “enter an order or judgment in accordance with the parties' April 21, 2023 Mediated Settlement Agreement.” In re Barrett, No. 04-23-00928-CV, 2023 WL 8793150, at *2, *7 (Tex. App.—San Antonio Dec. 20, 2023, orig. proceeding) (mem. op.).

On February 16, 2024, the trial court signed an order modifying the parent-child relationship. The February 16 order required Barrett to pay $489 per month in medical support beginning July 1, 2023, payable through the state disbursement unit as additional child support. But the order also stated that Garza had to provide written documentation of the insurance premiums before July 1, 2023—“otherwise” she would be “solely responsible for the cost of [the children's] health, dental and vision insurance.”

On September 3, 2024, Garza moved for a judgment nunc pro tunc, asserting the “solely responsible” sentence did not appear in the MSA and asking the trial court to delete it. On November 1, 2024, the trial court held a hearing on Garza's motion. During the hearing, the trial court stated the order had to “correspond with the MSA” and that it would not “add anything more or less to it.” That same day, the trial court signed a judgment nunc pro tunc, which retained Barrett's obligation to pay $489 per month in medical support but removed Garza's sole responsibility for the children's insurance costs.

On November 30, 2024, Barrett filed a motion for new trial. At the hearing on that motion, Barrett argued the nunc pro tunc order made a material change to the February 16 order, while Garza argued the deleted sentence had been “completely fabricated” and was never part of the MSA. The trial court denied the motion for new trial. This appeal followed.

Discussion

In a single issue, Barrett contends the trial court lacked authority to enter the nunc pro tunc order because, after its plenary power expired, the court could correct only a clerical error, not a judicial one. In his view, the February 16 order was itself the rendition of judgment, so deleting the “solely responsible” sentence effected a substantive change in the judgment. We agree.

After plenary power expires, a trial court may not alter its judgment except to correct a clerical error by judgment nunc pro tunc. Tex. R. Civ. P. 316, 329b(f); Tex. Dep't of Transp. v. A.P.I. Pipe & Supply, LLC, 397 S.W.3d 162, 167 (Tex. 2013). A clerical error is a discrepancy between the judgment actually rendered and the judgment entered of record. Escobar v. Escobar, 711 S.W.2d 230, 231–32 (Tex. 1986); Am.'s Favorite Chicken Co. v. Galvan, 897 S.W.2d 874, 877 (Tex. App.—San Antonio 1995, writ denied). A judicial error, by contrast, is made in rendering the judgment and results from judicial reasoning or determination. Galvan, 897 S.W.2d at 876–77.

What judgment the trial court actually rendered is a question of fact, and we review the trial court's resolution of that question for sufficiency of the evidence. Diaz v. Diaz, No. 04-19-00767-CV, 2020 WL 6597536, at *2 (Tex. App.—San Antonio Nov. 12, 2020, no pet.) (mem. op.). Whether an error in the judgment is clerical or judicial is a question of law we review de novo. Id. And in answering this legal question, we look to the judgment the trial court actually rendered, not the judgment it could have or should have rendered. Escobar, 711 S.W.2d at 231. A judgment nunc pro tunc that corrects a judicial error after plenary power has expired is void. Diaz, 2020 WL 6597536, at *3.

A court renders judgment when it officially announces its decision, either orally in open court or by written memorandum filed with the clerk. S & A Rest. Corp. v. Leal, 892 S.W.2d 855, 857 (Tex. 1995) (per curiam). When nothing shows the court announced its decision before signing a written judgment, the signing of the judgment is itself the rendition. See Galvan, 897 S.W.2d at 878. Accordingly, “[i]n order to issue a judgment nunc pro tunc, there must be some evidence that the judgment the trial judge actually rendered is not correctly represented in the judgment she signed and entered of record.” Id. at 877 (emphasis omitted). When there is no difference between the judgment as rendered and the judgment as entered, any error in the judgment is judicial, and a judgment nunc pro tunc entered after plenary power expires is improper. Id. at 878.

The trial court's plenary power over the February 16, 2024 final order expired long before Garza sought nunc pro tunc relief in September 2024. See Tex. R. Civ. P. 329b(d). The dispositive question is therefore what judgment the trial court actually rendered: the written February 16 order or some earlier rendition? The record contains no evidence of any rendition preceding the February 16 order such as a hearing held between this court's mandamus opinion and the signing of the order, a docket entry announcing a decision, a written memorandum filed with the clerk, or testimony recalling an earlier pronouncement. The only evidence of the judgment the trial court rendered is the February 16 order itself. See Diaz, 2020 WL 6597536, at *4 (“The only evidence of the judgment the trial court rendered on the disposition of the two lots is the 1992 decree itself.”). Consequently, the trial court's signing of the February 16 order constituted its rendition of judgment. See Galvan, 897 S.W.2d at 878.

At least three circumstances suggest the trial court meant to render judgment on the MSA without adding material terms: the statute requiring judgment in accordance with that agreement, this court's mandamus directive to the same effect, and the February 16 order's recital that it was “intended to effect the terms of th[e] Mediated Settlement Agreement.” But these circumstances establish—at most—the judgment the trial court should have rendered and intended to render. They are not evidence of the judgment the trial court actually rendered. See Escobar, 711 S.W.2d at 231; Galvan, 897 S.W.2d at 878. Nor does it matter that the trial court's duty was ministerial once this court directed it to render judgment on the MSA. In Galvan, we held that neither the trial court's mandate to grant plaintiff's motion for nonsuit nor its finding that it exercised no judicial discretion or reasoning were relevant in determining whether a judgment was actually rendered. Galvan, 897 S.W.2d at 878.¹

All that remains is the trial court's own recollection at the nunc pro tunc hearing. In re A.M.R., 528 S.W.3d 119, 123 (Tex. App.—El Paso 2017, no pet.); Diaz, 2020 WL 6597536, at *3. But here, the trial court did not recall having announced, at or before signing, a judgment different from the February 16 order. It instead declared—in the present tense, more than eight months after signing—that “[t]he order has to correspond with the MSA agreement,” that it was “going to enter an order that will coincide exactly with the MSA,” and that the nunc pro tunc order “corresponds with the MSA.” These statements again evidence what the trial court believed it should have rendered. But a trial court cannot, under the guise of a judgment nunc pro tunc, render the judgment it should have rendered in place of the judgment it did render. See Escobar, 711 S.W.2d at 232; Galvan, 897 S.W.2d at 879.

This is not a case in which the record shows the trial court orally rendered judgment approving the parties' agreement and the written order later varied from that rendition. See, e.g., Mora v. Mora, No. 04-17-00428-CV, 2018 WL 4903079, at *3 (Tex. App.—San Antonio Oct. 10, 2018, pet. denied) (mem. op.) (record showed trial court verbally rendered judgment disposing of entire property); Delaup v. Delaup, 917 S.W.2d 411, 413 (Tex. App.—Houston [14th Dist.] 1996, no writ) (trial court orally rendered judgment approving parties' agreement, and subsequent written judgment varied from agreement). Had the record shown the trial court announced its approval of the MSA before signing the February 16 order, the variance between that rendition and the signed order could have been clerical. Cf. Rawlins v. Rawlins, 324 S.W.3d 852, 855 (Tex. App.—Houston [14th Dist.] 2010, no pet.); Galvan, 897 S.W.2d at 878.

The “solely responsible” sentence added a consequence not found in the agreement on which Garza was statutorily entitled to judgment, see TEX. FAM. CODE § 153.0071(d); In re Lee, 411 S.W.3d 445, 450–52 (Tex. 2013), and it deviated from this court's directive to render judgment “in accordance with” the MSA, In re Barrett, 2023 WL 8793150, at *7. An incorrect rendition is still a rendition. Barrett's counsel drafted the February 16 order and, although it is titled an “agreed” order, neither Garza nor her counsel signed it. But “recitations or provisions alleged to have been included in a judgment by mistake of the attorney are nevertheless part of the court's judgment as rendered, and are thus judicial errors as a matter of law.” Galvan, 897 S.W.2d at 879 (citing Dikeman v. Snell, 490 S.W.2d 183 (Tex. 1973); Stock v. Stock, 702 S.W.2d 713, 716 (Tex. App.—San Antonio 1985, no writ)).

Because there is no evidence the trial court rendered a judgment different from the February 16 order it signed, the “solely responsible” sentence—however inconsistent with the MSA—was part of the judgment as rendered, and its deletion corrected a judicial error. The trial court had no jurisdiction to make this correction after its plenary power expired, and the nunc pro tunc order is therefore void. We sustain Barrett's sole issue.

We recognize the harshness of this result: the February 16 order does not follow the MSA, and the judgment nunc pro tunc was intended to set things right. But a judgment nunc pro tunc can only make the record speak the truth about the judgment actually rendered. See Escobar, 711 S.W.2d at 231–32. It is not a tool for repairing mistakes in the rendition itself, however inadvertent. The remedies for an error in rendition are delineated by the rules: a timely postjudgment motion ruled on while the trial court retains plenary power, Tex. R. Civ. P. 329b(a), (d)–(e), a timely notice of appeal, Tex. R. App. P. 26.1, or, in narrow circumstances, a bill of review, Tex. R. Civ. P. 329b(f). Litigants must therefore read final judgments with care when they are signed. A party who fails to examine a final judgment closely does so at their peril.²

Conclusion

We vacate the trial court's November 1, 2024 nunc pro tunc order and reinstate the trial court's February 16, 2024 order. See Galvan, 897 S.W.2d at 879.

FOOTNOTES

1.   The nunc pro tunc rule is applied differently in criminal cases, where a trial court's failure to perform a ministerial duty to include a mandatory finding in the judgment may be deemed “clerical” error. See Ex parte Poe, 751 S.W.2d 873, 876 (Tex. Crim. App. 1988) (holding error was clerical where written judgment omitted statutorily required deadly-weapon finding); Curry v. State, 720 S.W.2d 261, 263 (Tex. App.—Austin 1986, pet. ref'd) (“Because the entry of the affirmative finding in the judgment is mandatory, the trial court's failure to make the entry cannot be the product of judicial reasoning.”).

2.   Rule 306a affords limited relief when a judgment is not properly noticed. If, within twenty days after a judgment is signed, a party adversely affected by it has neither received the clerk's notice required by Rule 306a(3) nor acquired actual knowledge of the signing, the postjudgment periods begin to run on the date the party received the notice or acquired actual knowledge, whichever occurred first. Tex. R. Civ. P. 306a(4); Tex. R. App. P. 4.2(a). In no event may the periods begin more than ninety days after the judgment was signed. Tex. R. Civ. P. 306a(4). The party must prove the date of notice or actual knowledge in the trial court on sworn motion and notice. Id. R. 306a(5); Tex. R. App. P. 4.2(b). The rule protects diligent litigants who are never told a judgment has been signed.

Opinion by: Velia J. Meza, Justice