Thursday, March 24, 2016

Opinions: Clerical Error v. Judicial Error

Originally published by maknox.

This is a little awkward. This morning, the Fourteenth District Court of Appeals released its published opinion in In re A.M.C. & T.R.C., No. 14-15-00060-CV, a case in which my firm and I wrote the Appellee’s brief. Because it is a published opinion, I will briefly summarize the case.

The underlying case was an enforcement action which had already been to the Court of Appeals before on mandamus when Stacie Depeau challenged her incarceration after she was found in contempt of the parties’ divorce decree. In re Depeau, No. 14-14-00693-CV, 2014 WL 4952427 (Tex.App.–Houston [14th Dist.] Oct. 2, 2014, no pet.) (orig. proceeding). Some, though not all, of the violations were affirmed.

At issue in the instant matter is a Judgment Nunc Pro Tunc (“JNPT”) signed by the trial court correcting the original commitment order. When the original commitment order was scanned by the court clerk, it accidentally cut off key provisions of the order handwritten at the bottom of the page; specifically, those provisions setting forth the conditions of Depeau’s probation. Appellee moved for JNPT. The trial court held two hearings on the motion. At the first hearing, the trial court indicated that the court clerk would have to find the original order that included the handwritten provisions which had been scanned. At the second hearing, the trial court determined the original order had not been found and was presumed lost. The trial court granted the motion for JNPT and entered a JNPT which included the conditions of probation in the body of the order, typed.

Depeau appealed the Judgment Nunc Pro Tunc, arguing that the trial court improperly entered the JNPT including provisions which she asserts were not in the original order and that the JNPT corrected a judicial error, not a clerical one.

The Court of Appeals affirmed the trial court, finding that: 1) the trial court’s determination that the original order included the omitted handwritten language and that a Judgment Nunc Pro Tunc correcting the error was proper; and 2) the error was a clerical one, not a judicial one (“This is precisely the type of clerical error that is envisioned by Rule 329b”).

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

from Texas Bar Today
via Abogado Aly Website

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