Texas Stamp


PD-0870-18 01/09/2019

1. “The trial court’s order correcting its prior judgment was signed while the trial court retained plenary power. Although labeled as a ‘Nunc Pro Tunc Order,’ the court of appeals concluded that the order was merely a modification of the judgment and not an order ‘nunc pro tunc.’ The court of appeals reasoned that a ‘nunc pro tunc’ order/judgment, by definition, can only be entered after the trial court loses plenary power. Texas case law and the rules of appellate procedure suggest that the majority is incorrect. This Court should clarify the issue.”

2. “Trial court’s order correcting a clerical error in the judgment is a valid nunc pro tunc order. Under Texas law, a nunc pro tunc order is an ‘appealable order[’] under Tex. R. App. P. 26.2 (a)(1). As such, Appellant had 30 days to file his notice of appeal. Because Appellant’s notice of appeal was untimely, isn’t the dissenting opinion of the Second Court of Appeals correct in concluding that Appellant’s appeal should have been dismissed for lack of jurisdiction?”

Williams was convicted of attempted kidnapping. The trial court’s initial judgment did not award William back-time credit or require Williams to register as a sex offender. Within 30 days of sentencing, Williams filed a motion for new trial and a motion for nunc pro tunc judgment, challenging the denial of his time credit. Also within 30 days of sentencing, the trial court entered two orders correcting the judgment. The first, labeled nunc pro tunc order, required Williams to register as a sex-offender. The second awarded Williams his back-time. Within 90 days of sentencing—but more than thirty days after the first nunc pro tunc order—Williams filed a notice of appeal.

Williams’s brief in the court of appeals only challenged the sex-offender registration requirement. The State responded that his notice of appeal was untimely. It argued that while the motion for new trial extended the timeframe for appealing his conviction under Rule of Appellate Procedure 26.2(a)(2), that rule did not apply to an appeal from the trial court’s nunc pro tunc order that imposed sex-offender registration. By a 2-1 vote, the court of appeals rejected the State’s argument that it lacked jurisdiction. The majority held that the application of Rule 26.2(a)(2) does not turn on the substance of the defendant’s grounds on appeal. It also found caselaw allowing a separate appeal from a nunc pro tunc order to be “inapposite to the case at hand” because the trial court’s orders were not actually nunc pro tunc orders, having been entered while the court still had plenary power. On the merits, the court of appeals overruled Williams’s challenges to his sex-offender registration. The dissenting justice agreed with the State that the court of appeals lacked jurisdiction.

The State filed petition for discretionary review. It argues that the trial court has inherent authority to enter a nunc pro tunc order at any time, including within its plenary power. It challenges the court of appeals’s interpretation that Rule of Appellate Procedure 23.1 only permits nunc pro tunc proceedings after a trial court’s plenary power has expired. That rule, while sometimes cited as the “nunc pro tunc rule,” is not the sole basis for a trial court’s nunc pro tunc authority. The rule permits a trial court to correct the failure to render judgment and pronounce sentence “[u]nless the trial court has granted a new trial or arrested the judgment, or unless the defendant has appealed.” The court of appeals erred to hold that this language limited when a trial court can correct its judgment by nunc pro tunc. The State also contends that Rule 26.2(a)(1) governs when Williams’s notice of appeal should have been filed. Under that rule, a defendant’s notice of appeal must be filed within 30 days of either the imposition or suspension of sentence or the entry of an appealable order. While Rule 26.2(a)(2) extends the deadline if a motion for new trial is filed, it does so “within 90 days after the day sentence is imposed or suspended in open court.” The State argues that, under a plain reading of the rule, the motion for new trial “does not extend the deadline for filing a notice of appeal from an order nunc pro tunc because it is merely ‘an appealable order.’”

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