Opinion issued January 16, 2020




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                            ————————————
                              NO. 01-19-00227-CV
                           ———————————
                              IN RE X.A., Relator



           Original Proceeding on Petition for Writ of Mandamus




                         MEMORANDUM OPINION
      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.

                                      Background

      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 sentencing2 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




1
      The underlying case is In the Matter of X. A., Cause No. 2015-05966J, in the 314th
      District Court, Harris County, Texas, the Honorable Michelle Moore presiding.
2
      The Texas Legislature created a system for prosecuting juvenile offenders for
      certain violent offenses and this is called the determinate sentence system. See In re
      J.G., 905 S.W.2d 676, 679 (Tex. App.—Texarkana 1995), writ denied, 916 S.W.2d
      949 (Tex. 1995). To invoke this system, the prosecutor “must obtain grand jury
      approval of a juvenile court petition charging one of the covered offenses.” J.G.,
      905 S.W.2d at 679 (citing TEX. FAM. CODE § 53.045(a)). If the petition is approved
      and certified to the juvenile court, the case proceeds to adjudication and disposition.
      See TEX. FAM. CODE § 54.03. If the juvenile is found guilty of a specified violent
      offense, the trial court may commit him or her to the Texas Juvenile Justice
      Department and may later transfer the juvenile to the Institutional Division of the
      Texas Department of Criminal Justice. See TEX. FAM. CODE § 54.04(d)(3), 54.11.
                                             2
(18) years of age3 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 old5 and

thus, the district attorney asserted that the determinate sentence did not accurately

3
      X.A.’s birthdate is April 2, 2000.
4
      The three statements in the Determinate Sentencing Order that reference X.A.’s 18th
      birthday are: (1) “Costs and fees may be reinstated upon transfer of the respondent’s
      determinate probation to an appropriate district court on or about the respondent’s
      18th birthday”; (2) “IT IS THEREFORE CONSIDERED, ORDERED AND
      ADJUDGED by the court that [X.A.], Respondent, now comes under the
      jurisdiction of said Court and shall continue its care, guidance, and control from
      4/25/2016 or until said Respondent becomes eighteen (18) years of age unless
      discharged prior to and subject to subsequent and additional proceedings under the
      provisions made by the statute in such cases, and that the Respondent, [X.A.], be
      and is hereby placed in accordance with Title 3 of the Texas Family Code, upon the
      reasonable and lawful terms and conditions as set out in Exhibit “A” attached hereto
      and made a part hereof for all purposes”; and (3) IT IS FURTHER ORDERED, that
      said child is hereby placed in the custody of said parent(s), guardian(s), or
      custodian(s), as indicated above, who will be responsible for the child’s care and
      placement, under the rules of probation (if indicated above) for the period indicated
      above, but not beyond the child’s 18th birthday, unless a Motion to Transfer
      Probation is granted pursuant to section 54.051 of the Texas Family Code.”
5
      Because X.A. was 16 years old at the time of the entry of the determinate sentence,
      four years’ probation would not end until X.A. was 20 years old.

                                            3
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



6
      The nunc pro tunc order that X.A. contends is void was signed by the former judge
      of the 314th District Court, the Honorable John Phillips. His successor signed the
      order denying the motion to dismiss for lack of jurisdiction. Although Rule 7.2
      requires an appellate court to abate to permit a successor to reconsider his or her
      predecessor’s ruling that is the subject of an original proceeding, the successor had
      the opportunity to reconsider whether the previously-signed nunc pro tunc order was
      void when she determined whether to grant or deny the motion to dismiss for lack
                                            4
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).

                                      Discussion

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




      of jurisdiction. Accordingly, we need not abate this proceeding as provided under
      Rule 7.2(b). See TEX. R. APP. P. 7.2.
                                           5
judgment. In re A.M.R., 528 S.W.3d 119, 122 (Tex. App.—El Paso 2017, no pet.)

(citing TEX. R. CIV. P. 316, 329b(f)).

      “A clerical error is a discrepancy between the entry of a judgment in the record

and the judgment that was actually rendered.” Barton v. Gillespie, 178 S.W.3d 121,

126 (Tex. App.—Houston [1st Dist.] 2005, no pet.). The party claiming a clerical

error in the judgment must show by clear and convincing evidence that “the trial

judge intended the requested result at the time the original judgment was entered.”

In re Heritage Oper., L.P., 468 S.W.3d 240, 247 (Tex. App.—El Paso 2015, orig.

proceeding). This steep burden of proof limits when a trial court may correct clerical

mistakes and prevents the use of a judgment nunc pro tunc as “a vehicle to

circumvent the general rules regarding the trial court’s plenary power if the court

changes its mind about its judgment.” Id.

      A judicial error is one occurring in the rendering, not the entering, of judgment

and it “arises from a mistake of law or fact that requires judicial reasoning to

correct.” Hernandez v. Lopez, 288 S.W.3d 180, 184–85 (Tex. App.—Houston [1st

Dist.] 2009, no pet.) (op. on reh’g). An error in the rendition of the judgment is

always judicial and may not be corrected by a nunc pro tunc order. See id. at 186.

“[I]f the judgment entered is the same as the judgment rendered, regardless of

whether the rendition was incorrect, a trial court has no nunc pro tunc power to

correct or modify the entered judgment after its plenary jurisdiction expires.” Id. at


                                          6
187 (emphasis in original) (citing America’s Favorite Chicken Co. v. Galvan, 897

S.W.2d 874, 877 (Tex. App.—San Antonio 1995, writ denied)).

B. The Trial Court Lacked Power to Enter the Nunc Pro Tunc
      The trial court’s original determinate sentencing judgment was signed on

April 25, 2016, and thus, the October 25, 2017 nunc pro tunc order was signed

beyond the juvenile court’s plenary power, which ended thirty days after the

determinate sentencing judgment was signed. See TEX. R. CIV. P. 329b(d) (holding

that, if no motion for new trial is filed, trial court has plenary power to correct

judgment thirty days after judgment is signed). Because the order was signed beyond

the trial court’s plenary power, the nunc pro tunc order was void unless it corrected

clerical errors. See Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex. 1986); J.A., 2017

WL 6327356, at *4.

      Whether an error is judicial or clerical is a question of law and the “trial court

must make a factual determination regarding whether it previously rendered

judgment and the judgment’s contents before it may decide the nature of the error.”

In re A.M.C., 491 S.W.3d 62, 67 (Tex. App.—Houston [14th Dist.] 2016, no pet.).

In this case, the trial court made no factual findings and did not state that it was

correcting a clerical error based on personal recollection concerning rendition. The

question whether the error corrected in the nunc pro tunc order was judicial or

clerical “becomes a question of law only after the trial court factually determines


                                           7
whether it previously rendered judgment and the judgment’s contents.” Escobar, 711

S.W.3d at 232; Hernandez, 288 S.W.3d at 185. Because the trial court did not make

a finding concerning the prior rendition and its contents, there is no need to

determine if the correction was clerical or judicial.

      Additionally, the record does not reveal a rendition different from the original

determinate sentence entered in April 2016. In the hearing record on the stipulation

of evidence, the trial court merely stated that it would follow the plea agreement.

The record shows that X.A. bargained for and received “a disposition of 4 years

CJPO7 probation on the Determinate Sentencing offense with a possible transfer to

Harris County Community Supervision . . . .” The stipulation of evidence did not

specify the date that supervision of probation would end. Furthermore, the hearing

on the stipulation of evidence did not include any mention of the date that

supervision of probation would end.

      “[A] nunc pro tunc order can only be used to make corrections to ensure that

the judgment conforms with what was already determined and not what should have

been determined . . . .” In re Cherry, 258 S.W.3d 328, 333 (Tex. App.—Austin 2008,

orig. proceeding). Unlike the trial court in J.A., the trial court in this case did not

state a personal recollection that supervision of X.A.’s probation would continue



7
      This is an apparent reference to the Chief Juvenile Probation Officer.

                                           8
until X.A. turned 19 years old. See J.A., 2017 WL 6327356 at *2. Because the record

contains no proof and no finding of fact regarding a prior rendition or its contents,

this is a case in which the signing of the original determinate sentence constituted

the trial court’s rendition of judgment. See Galvan, 897 S.W.2d at 878 (holding that,

because the record contained no evidence or finding of fact regarding prior rendition

of judgment, the original written judgment constituted rendition of judgment). Thus,

the judgment entered in April 2016 was the judgment rendered and the trial court’s

entry of the judgment nunc pro tunc after plenary power expired was improper and

void. See id. (holding that nunc pro tunc after plenary jurisdiction expired was

improper because there was no difference between judgment as rendered and

judgment as entered); Hernandez, 288 S.W.3d at 187–88 (holding that, because error

was in rendition of judgment, nunc pro tunc was void).

       The State argues that X.A.’s challenge to the nunc pro tunc order is an

improper collateral attack. Because policy favors the finality of judgments, collateral

attacks on final judgments are usually disallowed. See Browning v. Prostok, 165

S.W.3d 336, 345 (Tex. 2005). But a void judgment may be collaterally attacked. See

id. at 346.

       The State next contends that the trial court made an implicit finding that the

parties’ plea agreement included a condition that X.A.’s probation would continue

until his 19th birthday and the pronouncement of sentence included that condition.


                                          9
Although the State presented an affidavit in which a district attorney stated that the

plea agreement included supervision of X.A.’s probation until he turned 19 years

old, neither the plea papers nor any statements made during the stipulation of

evidence hearing concerned supervision of probation until X.A.’s 19th birthday.

      The State also argues that, even if we find the nunc pro tunc order is void,

X.A. is estopped from challenging it because he agreed to the nunc pro tunc and is

now taking an inconsistent position. But X.A. did not take an inconsistent position.

He did not move the trial court for entry of a nunc pro tunc order—the State moved

for the nunc pro tunc order. See Lott v. Lott, 605 S.W.2d 665, 667 (Tex. App.—

Dallas 1980, writ dism’d) (holding that appellant was estopped from challenging

nunc pro tunc because his position in trial court seeking nunc pro tunc order in his

motion for new trial was inconsistent with his position in appellate court).

      Finally, the State attempts to distinguish this Court’s holding in J.A.. In J.A.,

this Court held that a nunc pro tunc order was void as a correction of a judicial error

when the correction extended the duration of a trial court’s supervision of a

juvenile’s probation. See J.A., 2017 WL 6327356, at *4–5. The State claims that J.A.

is distinguishable because, unlike the juvenile in J.A., the parties here agreed that

X.A.’s probation would continue until his 19th birthday and the trial court followed

that agreement. Even if the parties agreed to the extension of the trial court’s

supervision of probation, mandamus is appropriate to vacate a void order. See, e.g.,


                                          10
Dorchester Master Ltd. P’ship v. Anthony, 734 S.W.2d 151, 152 (Tex. App.—

Houston [1st Dist.] 1987, orig. proceeding). Parties who agree to a void order have

agreed to nothing. See In re Garza, 126 S.W.3d 268, 271 (Tex. App.—San Antonio

2003, orig. proceeding).

C.    Relator Need not Establish that his Appellate Remedy is Inadequate

      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 at 605. Even if there is an adequate remedy by appeal, a

party can seek mandamus relief from a void judgment. See Dikeman v. Snell, 490

S.W.2d 183, 186 (Tex. 1973) (“In view of our policy for at least a decade of

accepting and exercising our mandamus jurisdiction in cases involving void or

invalid judgments of district courts, Relator had every reason to expect relief from

the void judgment in this case without first attempting an appeal.”). Because the trial

court abused its discretion in signing the void nunc pro tunc order and the order

denying X.A.’s motion to dismiss for lack of jurisdiction, X.A. need not show he

lacks an adequate remedy by appeal. See In re Sw. Bell Tel. Co., 35 S.W.3d at 605;

In re Dickason, 957 S.W.2d 570, 571 (Tex. 1998).

                                     Conclusion
      Because the trial court improperly entered a nunc pro tunc order changing the

duration of the trial court’s supervision over X.A.’s probation, the October 25, 2017


                                          11
nunc pro tunc order is void. The trial court’s supervisory power over X.A. ended on

X.A.’s 18th birthday on April 2, 2018 by virtue of the original April 25, 2016

determinate sentencing order.

       We conditionally grant the writ of mandamus and order the trial court to set

aside the void nunc pro tunc order signed on October 25, 2017. Any orders issued

by the trial court after X.A.’s 18th birthday on April 2, 2018 were beyond the trial

court’s jurisdiction, are void, and must be vacated, including the April 24, 2019 order

transferring X.A.’s determinate probation to adult community supervision. We are

confident the trial court will promptly comply, and our writ will issue only if it does

not.

                                   PER CURIAM

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




                                          12
