                            NUMBER 13-18-00560-CV

                               COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTI - EDINBURG


NUECES COUNTY CIVIL SERVICE
COMMISSION,                                                               Appellant,

                                             v.

RICHARD MORRISEY,                                                          Appellee.


                     On appeal from the 347th District Court
                           of Nueces County, Texas.


                         MEMORANDUM OPINION

 Before Chief Justice Contreras and Justices Longoria and Hinojosa
             Memorandum Opinion by Justice Hinojosa

       Appellant, the Nueces County Civil Service Commission (the Commission),

terminated appellee Richard Morrisey, a Nueces County Constable deputy, for his failure

to timely report an incident of family violence. Morrisey appealed the Commission’s

decision to terminate to a district court.
       By four issues, the Commission argues the trial court erred when it: (1) vacated a

judgment outside the window of its plenary power; (2) concluded that the Commission’s

employment decision was not supported by substantial evidence; (3) held that Morrissey’s

substantial rights were prejudiced; and (4) reinstated Morrissey with back pay and

benefits instead of remanding to the Commission for a new hearing. We vacate the trial

court’s judgments rendered after its plenary power expired, and we dismiss the case.

                                   I.     BACKGROUND

A.     The Initial Incident

       Morrisey worked as a deputy for the Precinct 3 Nueces County Constable. On

August 10, 2015, Morrisey responded to a domestic disturbance call. The disturbance

occurred at the home of Raul Mata and his girlfriend, Yolanda Beltran. Beltran’s

granddaughter Clarissa also lived at the home. Mata reported that Clarissa was arguing

with him and Beltran using “vulgar and profane language” when she picked up a kitchen

knife and allegedly threatened to kill him. Mata expressed that because he was on parole

and did not want any trouble, he left the house and went to the police department to report

the incident. Mata told Morrisey he wanted Clarissa to move out of the house.

       Morrisey also questioned Beltran. She confirmed that her granddaughter picked

up a knife during the argument. Beltran also told the officer that she wanted her

granddaughter out of the home, so Morrisey gave her information about how to evict her

through the local justice of the peace.

       According to Morrisey, Mata did not want to file a report because of his parole

status. For this reason, Morrisey did not file a report. Morrisey then took a few days of


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personal leave. Police were called to the house again on August 11, 12, and 13. On

August 13, another incident occurred between Mata and Clarissa that prompted Clarissa

to file a police report telling a different version of what happened on August 10th. She

reported that Mata pinned her against the kitchen counter. Mata was arrested and jailed

pending a court date because of his parole status.

       Mata then contacted Chief Deputy Oscar Mendoza. According to Mendoza, Mata

told Morrisey that he did want to file a report on August 10th because Clarissa threatened

him with a knife, which was why he went to the police department in the first place. He

claimed, however, that Morrisey told him if he arrested Clarissa, he would also have to

arrest Mata, and that Clarissa would get out of jail but that Mata would not because of his

parole status.

       Mendoza filed a report about the August 10th incident on August 19, 2015. The

reports had to be expedited because Mata was arrested for the alleged parole violation

by the parole board. Morrisey, when he returned to work and was informed about the

ensuing family circumstances that led to Mata’s arrest, filed a separate report on August

24, 2015, fourteen days after the initial incident.

       On August 27, 2015, Morrisey received notice from his employer that his failure to

immediately file a report in this incident violated article 5.05 of the Texas Code of Criminal

Procedure, which provides as follows:

       (a)    A peace officer who investigates a family violence incident or who
              responds to a disturbance call that may involve family violence shall
              make a written report, including but not limited to:

              (1)    the names of the suspect and complainant;


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              (2)    the date, time and location of the incident;

              (3)    any visible or reported injuries;

              (4)    a description of the incident and a statement of its disposition;
                     and

              (4)    whether the suspect is a member of the state military forces
                     or is serving the armed forces of the United States in an
                     active-duty status.

TEX. CODE CRIM. PROC. ANN. art. 5.05.

       Morrisey signed this notice as acknowledgement of its receipt. On September 9,

2015, Mendoza gave Morrisey formal notice that he had been terminated.

B.     The Civil Service Commission Hearing

       Morrisey appealed his termination to the Commission. Mendoza testified that

Morrisey violated internal protocol, in addition to the code of criminal procedure, by failing

to file a report where a deadly weapon was used in a family violence episode. Mendoza

testified that Morrisey’s failure to file a report where a deadly weapon was displayed

opened the county up to both civil and criminal liability. After a five-hour contested

hearing, the Commission upheld the decision to terminate.

C.     Morrisey’s Appeal to the District Court

       On December 5, 2015, Morrissey appealed the Commission’s decision to a district

court under the substantial evidence rule. Two years later, the trial court placed the case

on its October 11, 2017 “drop docket”—a docket for cases which are set to be dismissed

for failure to prosecute. According to an affidavit from the Commission’s attorney,

Morrissey’s attorney went to the court to orally ask the judge that the case be removed



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from that docket, and the judge asked the coordinator to do so. 1 The court coordinator

did not remove it from the case list that day, however, so the case remained on the drop

docket schedule. Of note, both parties were aware that there was a docket control

conference scheduled for October 18, 2017, a week after the drop docket.

       Morrisey did not attend the drop docket hearing, but the Commission did. When

the case was called, only the Commission was present. The trial court announced on the

record, “All right. DWOP. Thank you.” The Commission did not let the court know that

there was a docket control conference scheduled for the next week. That same day, the

court signed an order dismissing the case for want of prosecution. According to the clerk’s

record, the court mailed a copy of the dismissal order to all counsel of record.

       Morrisey claimed that he believed the case was active and that the docket control

conference was still pending. He apparently called in on October 18, 2017 to initiate the

conference, but because the court coordinator was out of the office, Morrisey asked that

it be rescheduled. There is nothing in the record, however, to indicate that he did not

receive the court’s order of dismissal. And he did not, for example, file a motion to

reinstate the case or to set aside the order of dismissal within the court’s period of plenary

power. Instead, over four months later, the district court vacated the judgment sua sponte,

without notice to the Commission. The district court claimed the dismissal was a clerical

mistake and signed a judgment nunc pro tunc on February 14, 2018, vacating the

dismissal order.

       The Commission filed a plea to the jurisdiction, contending the trial court no longer



       1   The record shows that Morrisey did not file any objections to this affidavit.
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had plenary power to vacate its decision. The trial court denied the motion, concluding

that the case was dismissed due to a clerical error, not a judicial error. The court later

denied the Commission’s motion to reconsider and rendered a final judgment in favor of

Morrisey on July 12, 2018, and an amended final judgment on September 11, 2018. In its

judgment, the trial court reinstated Morrisey with back pay and benefits. The court also

issued Findings of Fact and Conclusions of Law, holding that the Commission’s decision

to terminate was not supported by substantial evidence and that Morrisey’s substantial

rights were prejudiced.

         The Commission appeals. 2

                                    II.      JUDGMENT NUNC PRO TUNC

         As a threshold matter, we must first determine whether, by its judgment nunc pro

tunc, the trial court corrected an error that was clerical or judicial in nature. If it was the

former, we may proceed to the merits of the Commission’s appeal brief. If it was the latter,

the trial court had no jurisdiction to vacate the order, and the order of dismissal must

stand.

A.       Standard of Review & Applicable Law

         "It has long been settled that judgment is rendered (emphasis added) when a trial

court's decision is officially announced.” Wood v. Griffin & Brand of McAllen, 671 S.W.2d

125, 128 (Tex. App.—Corpus Christi–Edinburg 1984, no writ) (emphasis in original). “Its



         2  Morrisey previously filed a Motion to Dismiss for Lack of Jurisdiction with this Court, arguing that
the Commission filed an untimely appeal. Morrisey averred that the Commission’s appellate deadlines were
not extended because the Commission’s request for findings of fact and conclusions of law were not
“required” and/or could not be properly considered by the appellate court. See TEX. R. APP. P. 26.1(a)(4).
We denied this motion on April 22, 2019. Morrisey re-urges this motion in his appellee brief, and we decline
the invitation to reconsider our previous ruling.
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rendition is the judicial act by which the court settles and declares the decision of the law

upon the matters at issue.” Id.; see Samples Exterminators v. Samples, 640 S.W.2d 873,

875 (Tex. 1982) (per curiam) (“A judgment is in fact rendered whenever the trial judge

officially announces his decision in open court.”).

       Texas Rule of Civil Procedure 316 sets forth the rule regarding judgments nunc

pro tunc. See TEX. R. CIV. P. 316. It provides that, “[c]lerical mistakes in the record of any

judgment may be corrected by the judge in open court according to the truth or justice of

the case after notice of the motion therefor[e] has been given to the parties interested in

such judgment, as provided in Rule 21a, and thereafter the execution shall conform to the

judgment as amended.” Id. The nunc pro tunc judgment is invalid, however “if it purports

to change and re[-]adjudicate or rewrite and change the terms of the judgment as

rendered, i.e., the decretal portion of the judgment.” Wood, 671 S.W.2d at 129. The trial

court’s finding or conclusion that the error is clerical is not binding on this court. Id. at 130

(citing Finlay v. Jones, 435 S.W.2d 136, 138 (Tex. 1968)).

       The parties both cite to Knox v. Long, 257 S.W.2d 289 (Tex. 1953), and Universal

Underwriters v. Ferguson, 471 S.W.2d 28 (Tex. 1971), in support of their respective

positions regarding whether a judgment nunc pro tunc was appropriate in this case. We

discuss each case below.

       In Knox, the Texas Supreme Court analyzed the acts and intentions of a trial court

judge and the court staff. See 257 S.W.2d at 295-96. In that case, a court clerk had

identified 182 docket sheets to dismiss for want of prosecution and placed them all on the

judge’s desk for signature. See id. Over the course of the next few days, the judge went


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through the pile and signed all of the sheets, ordering their dismissal. See id. at 296.

Before the sheets were submitted to the district clerk, though, the judge asked his staffer

to make sure none of the cases were active. Id. The staffer found that two of the cases,

including Knox’s case, were active and removed them from the stack. Id. By accident,

however, the two sheets were added back to the stack and all 182 cases were dismissed.

       The Texas Supreme Court held that “this was a clerical error in the entry of a

judgment rather than a judicial error in the rendition of a judgment.” Id. at 297. The court

held that the signed orders of dismissal were “provisional and the judge was still in control

of all of them with no intention of permitting any of them to become judgments of the court

until he first satisfied himself that none of the cases were active.” Id. at 292.

       In Ferguson, Walter Stedman secured a judgment against Wilma Brothers for

personal injuries he sustained in a motor vehicle accident in 1966. See 471 S.W.2d at 29.

The judgment became final and was partially paid. See id. A year later, in May of 1967,

Stedman filed suit against Universal Underwriters for the balance of the judgment,

“alleging that Wilma Brothers was an additional insured” under their policy. Id. Universal

Underwriters timely filed an answer. Id. Three years later, Judge Ferguson dismissed

several cases on his docket for want of prosecution, including Stedman’s second pending

case. Id. Judge Ferguson signed an order reading as follows:

       On this the 23rd day of October, A.D. 1970 the docket of the District Courts
       of Brazoria County, Texas was sounded and the following cases were
       dismissed for want of prosecution, to-wit: (list of cases, including No. 48,
       223, Walter Stedman v. Universal Underwriters Insurance Co.).

       Rendered and entered on this the 26th day of October, A.D. 1970.

Id. (emphasis added).

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        In December, Stedman filed a motion for a nunc pro tunc order to set aside the

dismissal judgment on the ground that it was caused by a clerical error—the court clerk

sent notice of the dismissal docket only to Universal Underwriters’ attorney, not

Stedman’s attorney. Id. Accordingly, Stedman had no notice that his case was on Judge

Ferguson’s dismissal docket and did not appear at the drop docket. Id. The trial court

agreed with Stedman and issued a judgment nunc pro tunc. Id. Universal Underwriters

appealed, arguing that the trial court’s dismissal order was “rendered”; thus, by signing

the nunc pro tunc order, the trial court improperly corrected a judicial mistake instead of

a clerical mistake. Id.

        The Texas Supreme Court agreed with Universal Underwriters. Id. at 29-30. The

high court distinguished this case from Knox by recognizing that “Stedman’s case was

included in the judgment of dismissal as rendered.” Id. at 30. It concluded that “errors in

rendered and entered judgments are not clerical merely because they are based upon or

grow out of clerical errors.” Id. (citing Finley, 435 S.W.2d at 138).

        With these cases in mind, we proceed to our analysis.

B.      Analysis

        Here, the trial court set Morrisey’s case on its drop docket. Morrisey went to the

court and informed the court that he intended to proceed with his case. The court informed

its coordinator, Garcia, to remove Morrisey’s from the court’s drop docket. Morrisey did

not, however, file a formal motion giving notice that he wanted this case removed from

the DWOP docket, and Garcia forgot to remove it as instructed. 3


        3Morrisey mentions in his briefing that the Commission had a duty of “candor to the court” to let it
know that there was a Docket Control Conference set in this case after the drop docket hearing. See TEX.
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        We find the facts of this case closer to Ferguson than to Knox for one crucial

reason: the trial judge orally rendered a judgment of dismissal in open court. In Knox, the

signed orders of dismissal were “provisional” until the judge was satisfied that there were

no active cases. See 257 S.W.2d at 292. Then, by accident, a court employee misplaced

two signed case sheets of active cases onto a stack of papers meant to be dismissed. Id.

at 295-96. In the underlying case, though, the trial court made an oral pronouncement on

the record. When the Commission was present at the drop docket and Morrisey was not,

the trial judge pronounced, “All right. DWOP. Thank you.” There was nothing “provisional”

about the nature of the court’s ruling. See id. at 292. Although the trial court would not

have dismissed the case but for the court coordinator’s failure to remove the case from

the drop docket, “errors in rendered and entered judgments are not clerical merely

because they are based upon or grow out of clerical errors.” Ferguson, 471 S.W.2d at 29.

“In determining whether the error is judicial or clerical, the critical inquiry is not what

judgment might or ought to have been rendered, but only what judgment was actually

rendered.” Wood, 671 S.W.2d at 131 (citing Coleman v. Zapp, 151 S.W. 1040, 1041 (Tex.

1912)). We conclude this error was judicial, not clerical. Id. Accordingly, it could not be

remedied through a judgment nunc pro tunc. 4 Id.; see also Escobar v. Escobar, 711


DISCIPLINARY RULES PROF’L CONDUCT 3.03, reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G, app. A. And
the Commission alludes that it had no notice that Morrisey had gone directly to the judge to make an “ex
parte” request to remove their case from the court’s drop docket. We decline to address the issue of attorney
conduct on either side as it is not fully briefed by either party. See TEX. R. APP. P. 38.1(i).

        4  Morrisey asserts that, in the event we find that the error was judicial, then it was invited error on
the part of the Commission. The concept of invited error prevents a litigant from complaining about mistakes
that he helped cause. See In re Marriage of Palacios, 358 S.W.3d 662, 664 (Tex. App.—Amarillo 2009, pet.
denied). We find this argument unconvincing in light of the facts that Morrisey himself failed to: (1) file a
motion to retain the case on the docket, (2) ensure that the court coordinator removed the case from the
docket, (3) appear at the drop docket, or (4) apprise the court of the case’s dismissal within the trial court’s
time of plenary power despite the fact that the district court mailed a copy of the dismissal order to him.
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S.W.2d 230, 231 (Tex. 1986) (explaining that after the trial court loses its plenary power

over a judgment, it can correct only clerical errors). Instead, the trial court’s plenary power

expired thirty days after it rendered its dismissal order, and any judgments rendered after

that time are void. See TEX. R. CIV. P. 329b(d) (“The trial court, regardless of whether an

appeal has been perfected, has plenary power to grant a new trial or to vacate, modify,

correct, or reform the judgment within thirty days after the judgment is signed.”); Morris v.

O’Neal, 464 S.W.3d 801, 808 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (noting that,

if the trial court attempts to correct a judicial error by signing a judgment nunc pro tunc

after its plenary power expires, the judgment is void); Wood, 671 S.W.2d at 128.

       Having sustained this threshold jurisdictional issue, we need not address the

Commission’s remaining issues as they are moot. See TEX. R. APP. P. 47.1 (“The court

of appeals must hand down a written opinion that is as brief as possible but that addresses

every issue raised and necessary to final disposition of the appeal.”).

                                      III.    CONCLUSION

       We vacate any and all judgments rendered by the trial court subsequent to the

expiration of its plenary power—including but not limited to its judgment nunc pro tunc of

February 14, 2018, and its judgments of July 12 and September 11, 2018—and we

dismiss the case. See TEX. R. APP. P. 43.2(e).


                                                                 LETICIA HINOJOSA
                                                                 Justice

Delivered and filed the
30th day of April, 2020.



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