                                  NO. 07-10-00481-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                         PANEL D

                                     MARCH 7, 2011


                            IN THE INTEREST OF A.P., A.P.,
                             A.N.P., AND A.M.P., CHILDREN


              FROM THE 223RD DISTRICT COURT OF GRAY COUNTY;

              NO. 35,607; HONORABLE PHIL N. VANDERPOOL, JUDGE


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                                          ORDER


       Appellants T.P., the father, and D.P., the mother, appeal the trial court’s

termination of their parental rights.    On our own motion, we abate the appeal and

remand the case to the trial court for consideration of its two orders signed November

22, 2010.


       On May 14, 2009, the Texas Department of Family and Protective Services filed

suit against the father and the mother through a pleading denominated, “Original

Petition for Protection of a Child, for Conservatorship, and for Termination in Suit

Affecting the Parent-Child Relationship.” The petition alleges T.P. is the father of four

children subject to the proceeding. It further alleges that D.P. is the mother of two of the
children, A.N.P. and A.M.P., and that E.P. is the mother of the other two, whose initials

are the same, A.P., and to whom we will refer as the “older two children.” The

Department’s petition sought, inter alia, termination of the parent-child relationships

between the father and all four of the children, and the parent-child relationships

between the mothers D.P. and E.P. and their respective children.


       The case was tried by jury beginning November 8, 2010.              Responding to

questions, the jury found the parent-child relationships between the father and A.N.P.

and A.M.P., and the mother and A.N.P. and A.M.P., should be terminated. The jury

found E.P., the mother of the older two children, should be named their managing

conservator. The jury was not asked if the parent-child relationship between the father

and the older two children should be terminated. After the jury returned its verdict and

was discharged, the court orally rendered judgment. Consistent with the jury’s answers,

it ordered the parent-child relationships between the father and A.N.P. and A.M.P., and

the mother and A.N.P. and A.M.P., terminated.            It named E.P. sole managing

conservator of the older two children. It made no oral pronouncement concerning the

father’s parent-child relationship with the older two children. These rulings were also

expressed in a docket sheet entry of November 10.


       On November 22, 2010, the trial court signed two orders in the case. The first,

entitled “Order of Termination,” and the second, “Final Order in Suit Affecting the

Parent-Child Relationship.” In relevant part, the termination order recites the children to

the suit are A.N.P. and A.M.P. But the termination order also recites findings of best

interest and statutory predicate grounds, and expressly terminates the father’s parental

                                            2
rights, as to all four children.1 As to the father, the SAPCR order is inconsistent with the

termination order. It names E.P. permanent managing conservator of the older two

children and denies the father possession or access to the older two children.2

Importantly, however, the SAPCR order recognizes a parent-child relationship between

the father and those two children.


       In short, now before us are two appealable orders affecting the parent-child

relationship between father and the older two children. The termination order purports

to terminate that relationship while the SAPCR order recognizes the relationship but

curtails the father’s access or possession of the older two children.


       The father and the mother filed notice of appeal. The trial court found their

appellate points frivolous but appointed appellate counsel. The record was filed and on




       1
           This section of the termination order concludes with the decree: “IT IS
THEREFORE ORDERED that the parent-child relationship between [the father] and the
child (sic) [A.P., A.P., A.N.P., and A.M.P.] is terminated.” (Bolding and capitalization in
original).
       2
        This section of the SAPCR order, entitled “Parent Denied Possession or
Access,” decrees the father:
       Is not appointed possessory conservator of the children, and shall
       not have possession or access, because the Court finds such
       appointment would not be in the best interest of the children and
       that possession or access by this parent would endanger the
       physical or emotional welfare of the children.
                                             3
February 24, 2011, appointed counsel filed a motion to withdraw from representation

supported by an Anders brief.3


       From the discussion that follows, we believe the trial court can determine

whether it signed a judgment containing clerical errors or whether it changed its

judgment from that orally rendered in open court to the signed writing. Judgment in the

former case is correctable nunc pro tunc, even on the trial court’s own motion.

Judgment in the latter instance is not.


       Concerning the ability of a trial court to correct clerical errors nunc pro tunc, the

Texas Supreme Court in Coleman v. Zapp long ago explained:


       The judgment of a court is what the court pronounces. Its rendition is the
       judicial act by which the court settles and declares the decision of the law
       upon the matters at issue. Its entry is the ministerial act by which an
       enduring evidence of the judicial act is afforded. The failure of the minute
       entry to correctly or fully recite what the court judicially determined does
       not annul the act of the court, which remains the judgment of the court
       notwithstanding its imperfect record. Hence it is that from the earliest
       times the power of correcting or amending their records, by nunc pro tunc
       entry, so as to faithfully recite their action, has been possessed and
       exercised by the courts as an inherent right, independent of any statute,
       and, in the absence of express provision, unaffected by limitation. . . . If a
       court is made aware that, through mistake or omission, its records do not
       recite its judgment as actually rendered, we do not doubt that it is not only
       the right but the duty of the court, of its own motion and after due notice to
       the parties, to order the proper entry. The nature of a judicial record, the
       accuracy of which is the peculiar concern of the court and which for that
       reason and to that extent remains within the court’s control, forbids that its
       correctness as an expression or evidence of judicial action should depend
       3
        Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); In re
A.W.T., 61 S.W.3d 87, 88 (Tex.App.--Amarillo 2001, no pet.) (per curiam) (finding
Anders procedures applicable to appeals of orders terminating parental rights).

                                             4
       upon the inauguration of a proceeding by the parties, and it is therefore
       plain that such a proceeding only invokes an authority which the court may
       exercise of its own accord.

105 Tex. 491, 494, 151 S.W. 1040, 1041 (Tex. 1912) (citations omitted).

       When confronting the question whether a judgment may be modified by an order

nunc pro tunc a trial court must determine if the change from the judgment first

announced was a clerical error or a judicial modification.        Kostura v. Kostura, 469

S.W.2d 196, 198 (Tex.Civ.App.--Dallas 1971, writ ref’d n.r.e.).        A clerical error is a

discrepancy between the entry of a judgment in the record and the judgment that was

actually rendered. Andrews v. Koch, 702 S.W.2d 584, 585 (Tex. 1986) (per curiam).

On the other hand, a judicial error arises from a mistake of law or fact that requires

judicial reasoning to correct. Butler v. Continental Airlines, Inc., 31 S.W.3d 642, 647

(Tex.App.--Houston [1st Dist.] 2000, pet. denied). A judgment nunc pro tunc allows a

trial court to correct a clerical error in the judgment after expiration of the trial court=s

plenary power. Escobar v. Escobar, 711 S.W.2d 230, 231-32 (Tex. 1986); Tex. R. Civ.

P. 316.   But such power does not extend to correction of a judicial error made in

rendering a final judgment. Escobar, 711 S.W.2d at 231. Following expiration of its

plenary power, a trial court may only correct the entry of a final written judgment that

incorrectly states the judgment actually rendered. Id. at 231-32.


       In Truelove v. Truelove, this court considered the sufficiency of a trial court’s

nunc pro tunc correction of a judgment that stated a material proposition contrary to the

trial court’s announcement of judgment. 266 S.W.2d 491 (Tex.Civ.App.--Amarillo 1953,

writ ref’d). Truelove was a will contest. A jury found the will was executed and procured

by undue influence.      On this finding, the trial judge announced judgment for the
                                             5
contestants.   The court, however, inadvertently signed the wrong form of judgment

which effectively set aside the jury finding and admitted the will to probate. The

judgment was filed and entered of record. On subsequent motion for entry of judgment

nunc pro tunc, the trial court set aside the erroneous judgment and signed a judgment

denying probate of the will. Id. at 492. Instructed by Coleman, this court concluded the

erroneous judgment was properly correctable by judgment nunc pro tunc. Id. at 493-94.

The supreme court refused an application for writ of error in Truelove and later followed

the decision in Andrews. 702 S.W.2d at 585.


       We abate the appeal and remand the cause to the trial court. Tex. R. App. P.

44.4. On remand, the trial court shall, on proper notice and as soon as practicable,

conduct a hearing to determine whether either or both the termination order or the

SAPCR order incorrectly reflect the judgment of the court and, if so, whether the

mistake is a clerical error subject to correction nunc pro tunc. If the trial court concludes

either or both orders are incorrect and the mistake is a clerical error, then it shall sign an

order or orders nunc pro tunc correctly reflecting the judgment of the court.


       Following the hearing, the trial court shall prepare findings of fact and

conclusions of law regarding all matters it considered in conjunction with this order. The

hearing shall be transcribed and included in a supplemental reporter’s record. The trial

court’s findings of fact and conclusions of law as well as any orders made in compliance

with this order and any orders or judgments nunc pro tunc, should such be signed by

the trial court, shall be included in a supplemental clerk’s record. The supplemental

reporter’s record and supplemental clerk’s record shall be filed with the clerk of this

                                              6
court on or before March 28, 2011. Should additional time be needed to perform these

tasks, the trial court may request same on or before March 28, 2011.


      The appeal will remain abated until further order of this court. We take no action

at this time on the pending motion to withdraw filed by appointed appellate counsel for

the father and the mother.


      It is so ordered.


                                                     Per Curiam




                                           7
