                                     Fourth Court of Appeals
                                             San Antonio, Texas
                                        MEMORANDUM OPINION

                                                 No. 04-18-00971-CV

                                    IN THE INTEREST OF M.C.V., a Child

                         From the 408th Judicial District Court, Bexar County, Texas
                                       Trial Court No. 2017PA02539
                                 Honorable Eric Rodriguez, Judge Presiding

Opinion by:          Patricia O. Alvarez, Justice

Sitting:             Patricia O. Alvarez, Justice
                     Beth Watkins, Justice
                     Liza A. Rodriguez, Justice

Delivered and Filed: May 22, 2019

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

            On appeal, Dad argues the trial court erred in its December 10, 2018 order terminating his

parental rights to M.C.V. i under Family Code section 161.002 because he was an adjudicated

father to M.C.V. Because the trial court’s March 22, 2019 nunc pro tunc order was void and the

record conclusively establishes that Dad was an adjudicated father, the trial court erred in

terminating Dad’s parental rights under section 161.002. We reverse the portion of the trial court’s

order that terminates Dad’s parental rights to M.C.V. We affirm the remainder of the trial court’s

December 10, 2018 order, and we remand this cause to the trial court.




i
    To protect the minors’ identities, we refer to Appellant and the children using aliases. See TEX. R. APP. P. 9.8.
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                                                     BACKGROUND

            In late 2017, M.C.V. and M.D.V., both too young to attend school, were removed from

their parents’ care based on allegations of the parents’ negligent supervision. Mom and Dad denied

drug abuse, but both tested positive for methamphetamines. The Department created service plans

for Mom and Dad, which they signed, but each failed to comply.

A.          Trial on the Merits

            On November 15, 2018, the case was tried on the merits to the bench. Mom voluntarily

relinquished her rights to both children. The Department sought to terminate Dad’s rights to both

children on grounds (D), (E), (F), (O), and (P). See TEX. FAM. CODE ANN. § 161.001(b)(1). Dad

opposed termination of his parental rights and argued that the Department had not produced clear

and convincing evidence to meet its statutory burden.

            At the close of trial, the trial court took the case under advisement; it did not orally

pronounce a judgment at that time. In its December 10, 2018 written order (the original order),

the trial court found that Dad was an alleged father of M.C.V., and Dad had not timely filed an

admission of paternity or a counterclaim for paternity or for voluntary paternity to be adjudicated

under Chapter 160. See TEX. FAM. CODE ANN. § 161.002(b)(1). The trial court adjudicated Dad

to be M.C.V.’s father, found that terminating Dad’s parental rights was in M.C.V.’s best interest,

and terminated Dad’s parental rights to M.C.V. under section 161.002. ii See id.

B.          Dad Appeals

            Dad timely filed a notice of appeal, but he appeals with respect to only M.C.V. After the

appellate record was filed, Dad filed his brief on March 5, 2019. He argues that the evidence is




ii
     The trial court also terminated Dad’s parental rights to M.D.V., but Dad does not appeal that portion of the order.


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neither legally nor factually sufficient to support the trial court’s December 10, 2018 order

terminating his parental rights to M.C.V. under section 161.002. See id.

C.     Nunc Pro Tunc Motion

       On March 15, 2019, the Department filed in the trial court a motion for nunc pro tunc. The

motion asserted that the grounds for termination in the trial court’s December 10, 2018 order “were

not listed correctly.” The trial court signed a Nunc Pro Tunc Order of Termination (the nunc pro

tunc order) on March 22, 2019. The Department filed its brief—which considers the nunc pro tunc

order to be the final order—and argues that the nunc pro tunc order moots Dad’s sole issue.

                                     NUNC PRO TUNC ORDER

       In this appeal, each party’s brief assumes a different final order.

       Dad raises legal and factual sufficiency challenges to the original order that terminated his

rights to M.C.V. under section 161.002. See id.

       The Department contends the nunc pro tunc order—which terminates Dad’s rights under

section 161.001(b)(1)—makes Dad’s 161.002 challenge moot, and it argues the evidence was

sufficient under the 161.001(b)(1) grounds. See id. § 161.001(b)(1).

       Because the nunc pro tunc order sought to amend and replace the original order, we will

first determine whether the trial court had subject matter jurisdiction to render the nunc pro tunc

order. See James v. Underwood, 438 S.W.3d 704, 713 (Tex. App.—Houston [1st Dist.] 2014, no

pet.) (“Whether a trial court has subject-matter jurisdiction is a threshold inquiry that can be

addressed by the court sua sponte and at any time.”); Jack Jones Hearing Ctrs., Inc. v. State

Comm’n of Exam’rs in Fitting & Dispensing of Hearing Instruments, 363 S.W.3d 911, 914 (Tex.

App.—Austin 2012, no pet.) (citing Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440,

444–45 (Tex. 1993)) (“Subject-matter jurisdiction is never presumed and may be raised for the

first time on appeal . . . sua sponte by a reviewing court.”).


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       We begin with a brief review of the applicable law.

                            APPLICABLE LAW, STANDARD OF REVIEW

       If no postjudgment motion that extends the plenary power period is filed, a trial court has

plenary power to change its judgment or order for thirty days after the final judgment or order is

signed. Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310 (Tex. 2000) (citing

TEX. R. CIV. P. 329b); In re A.V., 350 S.W.3d 317, 319 (Tex. App.—San Antonio 2011, no pet.).

       However, “[a]fter the trial court loses its jurisdiction over a judgment, it can correct only

clerical errors in the judgment by judgment nunc pro tunc.” Escobar v. Escobar, 711 S.W.2d 230,

231 (Tex. 1986) (emphasis added); accord Andrews v. Koch, 702 S.W.2d 584, 585 (Tex. 1986);

see also TEX. R. CIV. P. 329b(f) (“[T]he court may at any time correct a clerical error in the record

of a judgment and render judgment nunc pro tunc under Rule 316 . . . .” (emphasis added)). If a

trial court renders an “amended order . . . to correct judicial error after the trial court’s plenary

power ha[s] expired, the amended order [is] void.” In re Elizondo, 544 S.W.3d 824, 829 (Tex.

2018) (per curiam) (emphasis added).

       “A judicial error is an error which occurs in the rendering as opposed to the entering of a

judgment.” Escobar, 711 S.W.2d at 231. “A judicial error arises from a mistake of law or fact

and requires judicial reasoning or determination to correct.” Molina v. Molina, 531 S.W.3d 211,

216 (Tex. App.—San Antonio 2017, no pet.) (citing Cohen v. Midtown Mgmt. Dist., 490 S.W.3d

624, 627 (Tex. App.—Houston [1st Dist.] 2016, no pet.)). “When deciding whether a correction

is of a judicial or a clerical error, we look to the judgment actually rendered, not the judgment that

should or might have been rendered.” Escobar, 711 S.W.2d at 231.

       “Whether an error in a judgment is judicial or clerical is a question of law we review de

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

Escobar, 711 S.W.2d at 232).


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A.     Plenary Power Period

       The record shows the trial court signed the original order on December 10, 2018, and no

postjudgment motions were filed. Thus, the trial court lost plenary power to modify its original

order on January 9, 2019. See TEX. R. CIV. P. 329b; Lane Bank, 10 S.W.3d at 310; Hernandez v.

Lopez, 288 S.W.3d 180, 185 (Tex. App.—Houston [1st Dist.] 2009, no pet.). The pivotal question

here is whether the nunc pro tunc order sought to correct a clerical or a judicial error. See Escobar,

711 S.W.2d at 231; Andrews, 702 S.W.2d at 585.

B.     Clerical or Judicial Error

       The error in the trial court’s original order was not clerical, it was judicial. See Molina,

531 S.W.3d at 216; Cohen, 490 S.W.3d at 627. At trial on November 15, 2018, neither side argued

that Dad was merely an alleged father. The parties understood that the trial court’s December 5,

2017 temporary order had already adjudicated Dad to be M.C.V.’s father. The Department did not

seek to terminate Dad’s rights based on his failure to comply with the paternity requirements. See

TEX. FAM. CODE ANN. § 161.002 (“Termination of the Rights of an Alleged Biological Father”).

Instead, it argued that Dad’s rights to M.C.V. should be terminated on grounds (D), (E), (F), (O),

and (P), and it was in M.C.V.’s best interest to terminate his rights. See id. § 161.001(b).

       At the close of trial, the trial court did not render judgment; instead, it took the case under

advisement. Cf. S & A Rest. Corp. v. Leal, 892 S.W.2d 855, 857 (Tex. 1995) (“Judgment is

rendered when the trial court officially announces its decision in open court or by written

memorandum filed with the clerk.”).

       In its December 10, 2018 written order, the trial court stated that Dad’s rights to M.C.V.

were terminated because Dad “did not respond by timely filing an admission of paternity or by

filing a counterclaim for paternity or for voluntary paternity to be adjudicated under chapter 160

of the Texas Family Code before the final hearing in this suit.” See TEX. FAM. CODE ANN.


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§ 161.002(b)(1). The December 10, 2018 order was the first time the trial court rendered

judgment; it was “the judgment actually rendered.” See Escobar, 711 S.W.2d at 231.

       Although the trial court “should or might have” terminated Dad’s parental rights to M.C.V.

under the section 161.001(b)(1) grounds the Department argued at trial, see TEX. FAM. CODE ANN.

§ 161.001(b)(1), it did not.     Exercising its judicial reasoning, the trial court found, albeit

incorrectly, that Dad failed to comply with the statutory requirements for an alleged father. It

terminated his parental rights to M.C.V. under section 161.002. See id. § 161.002(b)(1).

       This was judicial error. See Molina, 531 S.W.3d at 216; Cohen, 490 S.W.3d at 627.

C.     Motion for Nunc Pro Tunc

       In its motion for nunc pro tunc, the Department asserted that “due to a clerical error,” the

grounds for termination of Dad’s parental rights in the December 10, 2018 order “were not listed

correctly.” The Department provided the trial court with a Nunc Pro Tunc Order of Termination

that terminated Dad’s parental rights to M.C.V. (and M.D.V.) under section 161.001(b)(1) grounds

(D), (E), (N), and (O), and the trial court signed the nunc pro tunc order on March 22, 2019.

D.     Nunc Pro Tunc Order Void

       The Department acknowledges that the original order erroneously terminated Dad’s rights

under section 161.002, but it argues that “[t]his was clearly a clerical mistake as the Department

did not argue this ground at trial and the trial court did not terminate [Dad’s] rights on this basis

as reflected in [the trial court’s] notes filed in the record.” The Department points to the trial

court’s notes that, according to the Department, show the trial court intended to terminate Dad’s

parental rights to M.C.V. on grounds (D), (E), (N), and (O) under section 161.001(b)(1), and the

nunc pro tunc order merely corrected the final order to reflect the trial court’s actual intentions.

       But “a judge’s intention to render judgment in the future cannot be a present rendition of

judgment.” Molina, 531 S.W.3d at 216. The original order was the trial court’s first rendered


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judgment, and the nunc pro tunc order changed the legal grounds on which the original order

terminated Dad’s parental rights to M.C.V. See TEX. FAM. CODE ANN. §§ 161.001(b)(1) (course

of conduct), .002 (alleged father). This change was not a correction of a mere clerical error in

omitting a cause number, providing an incorrect date, or mistyping an amount. iii

        Instead, the attempted correction was for the trial court’s mistake of law or fact; it required

the trial court to exercise its legal reasoning to review the record and the evidence adduced at trial

to correct its judicial error in rendering the original order. See Molina, 531 S.W.3d at 216; see

also Escobar, 711 S.W.2d at 231 (“[T]he trial court cannot [use a nunc pro tunc order to] correct

a judicial error made in rendering a final judgment.”).

        Because the trial court had lost plenary power to modify its original order, and the

correction was for judicial error, the trial court’s nunc pro tunc order was void. See In re Elizondo,

544 S.W.3d at 829; Matter of Marriage of Russell, 556 S.W.3d 451, 457 (Tex. App.—Houston

[14th Dist.] 2018, no pet.).

                                            ORIGINAL ORDER

        Having determined that the trial court’s nunc pro tunc order was void, we now consider

Dad’s arguments that the evidence supporting the trial court’s December 10, 2018 order—the

original order—was neither legally nor factually sufficient to support termination of his parental

rights to M.C.V.

A.      Evidence Required, Standards of Review

        The evidentiary standards 1 the Department must meet are well known, as are the legal 2 and

factual 3 sufficiency standards of review. We apply them here.



  See In re N.S., No. 04-14-00291-CV, 2015 WL 4932850, at *4 (Tex. App.—San Antonio Aug. 19, 2015, no pet.)
iii

(mem. op.) (cause number); Fiske v. Fiske, No. 01-03-00048-CV, 2004 WL 1847368, at *5 (Tex. App.—Houston [1st
Dist.] Aug. 19, 2004, no pet.) (mem. op.) (mistyped amount); Traylor Bros., Inc. v. Garcia, 949 S.W.2d 368, 369
(Tex. App.—San Antonio 1997, no writ) (incorrect date).


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B.     Insufficient Evidence for Terminating Parental Rights

       The record conclusively establishes that the trial court adjudicated Dad to be M.C.V.’s

father in its December 5, 2017 order. Dad argues, and the Department effectively concedes, that

as an adjudicated father, Dad had no obligation to comply with section 161.002’s alleged

biological father requirements. See TEX. FAM. CODE ANN. § 161.002. There is no evidence to

support the trial court’s original order terminating Dad’s parental rights to M.C.V. based on his

failure to comply with section 161.002. We sustain Dad’s sole issue.

C.     Conservatorship of M.C.V.

       The Department sought managing conservatorship of M.C.V. under section 153.131. The

trial court’s original order found that appointing Dad as M.C.V.’s permanent managing

conservator “would significantly impair [M.C.V.’s] physical health or emotional development”

and that appointing the Department as M.C.V.’s permanent managing conservator was in M.C.V.’s

best interest. See id. § 153.131 (required findings). Thus, Dad’s conservatorship challenge was

not subsumed in his parental rights termination issue. See In re D.G., No. 02-17-00332-CV, 2018

WL 547787, at *6 (Tex. App.—Fort Worth Jan. 25, 2018, no pet.) (mem. op.); In re A.J.L., No.

04-14-00013-CV, 2014 WL 4723129, at *5 n.3 (Tex. App.—San Antonio Sept. 24, 2014, no pet.)

(mem. op.) (citing In re J.A.J., 243 S.W.3d 611, 615–17 (Tex. 2007)).

       In Dad’s brief, he prays that this court will “name Appellant a conservator of the child,

M.C.V.” However, Dad did not raise conservatorship as an appellate issue, present the applicable

law or standard of review, or provide argument and authorities to show how the trial court abused

its discretion in appointing the Department as M.C.V.’s managing conservator. Cf. TEX. R. APP.

P. 38.1(f), (i); Canton-Carter v. Baylor Coll. of Med., 271 S.W.3d 928, 931 (Tex. App.—Houston

[14th Dist.] 2008, no pet.) (“Failure to cite legal authority or to provide substantive analysis of the




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legal issues presented results in waiver of the complaint.”). Thus, Dad waived his challenge to the

trial court’s conservatorship appointment. See In re J.A.J., 243 S.W.3d at 613–14, 616–17.

         Dad’s conservatorship challenge was not subsumed in his parental rights termination issue,

and he failed to separately challenge the trial court’s conservatorship appointment. Thus, a reversal

of Dad’s parental rights termination does not vitiate the conservatorship appointment. See id.

                                                  CONCLUSION

         The trial court’s December 10, 2018 order (the original order) terminated Dad’s parental

rights to M.C.V. based on its erroneous conclusion that Dad failed to comply with the statutory

requirements for an alleged father. But the trial court had already adjudicated Dad as M.C.V.’s

father. Dad had no obligation to comply with the alleged father statutory requirements. Thus, the

evidence was legally and factually insufficient to support the portion of the trial court’s original

order that terminated Dad’s parental rights to M.C.V. When the trial court attempted to correct

the judicial error in its original order by its March 22, 2019 Nunc Pro Tunc Order for Termination,

it had already lost plenary power, and its nunc pro tunc order was void. Therefore, the trial court’s

December 10, 2018 Order of Termination is the final order in the underlying suit.

         Accordingly, we reverse the portion of the trial court’s December 10, 2018 order that

terminates Dad’s parental rights to M.C.V. We affirm the remainder of the trial court’s December

10, 2018 order, including the conservatorship appointment, and we remand this cause to the trial

court for further proceedings consistent with this opinion and section 263.401(b-1) of the Texas

Family Code.

                                                          Patricia O. Alvarez, Justice


1
  Clear and Convincing Evidence. If the Department moves to terminate a parent’s rights to a child, the Department
must prove by clear and convincing evidence that the parent’s acts or omissions met one or more of the grounds for
involuntary termination listed in section 161.001(b)(1) of the Family Code and that terminating the parent’s rights is
in the best interest of the child. TEX. FAM. CODE ANN. § 161.001(b); In re J.F.C., 96 S.W.3d 256, 261 (Tex. 2002).



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The same evidence used to prove the parent’s acts or omissions under section 161.001(b)(1) may be used in
determining the best interest of the child under section 161.001(b)(2). In re C.H., 89 S.W.3d 17, 28 (Tex. 2002); In
re D.M., 452 S.W.3d 462, 471 (Tex. App.—San Antonio 2014, no pet.); see also TEX. FAM. CODE ANN. § 161.001(b).
The trial court may consider a parent’s past deliberate conduct to infer future conduct in a similar situation. In re
D.M., 452 S.W.3d at 472.
2
  Legal Sufficiency. When a clear and convincing evidence standard applies, a legal sufficiency review requires a
court to “‘look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of
fact could have formed a firm belief or conviction that its finding was true.’” In re J.L., 163 S.W.3d 79, 85 (Tex.
2005) (quoting In re J.F.C., 96 S.W.3d at 266). If the court “‘determines that [a] reasonable factfinder could form a
firm belief or conviction that the matter that must be proven is true,’” the evidence is legally sufficient. See id. (quoting
In re J.F.C., 96 S.W.3d at 266).
3
  Factual Sufficiency. Under a clear and convincing standard, evidence is factually sufficient if “a factfinder could
reasonably form a firm belief or conviction about the truth of the State’s allegations.” In re C.H., 89 S.W.3d at 25;
accord In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must consider “whether disputed evidence is such that a
reasonable factfinder could not have resolved that disputed evidence in favor of its finding.” In re J.F.C., 96 S.W.3d
at 266; accord In re H.R.M., 209 S.W.3d at 108.




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