The purpose of a judgment nunc pro tunc is to correct a clerical error in the judgment after the court’s plenary power expired. A motion for judgment nunc pro tunc asks the court to correct the or
der so the order matches the judgment. It does not allow a party to ask the court to change the judgment rendered or to add relief. For example, if a court granted child support in a divorce for $400 per month but the order states $350 then the party receiving child support would want the court to sign an order that states the right amount of child support.
However, using that same example if the court never established special custody rules for Earth Day then the court could not add to the judgment by signing a judgment nunc pro tunc. In that case, the party seeking to add relief to the judgment would have to take alternative steps.
The judgment nunc pro tunc only corrects differences in the written order so it matches the judgment of the court.
Judicial error vs. clerical error
Judgment nunc pro tunc only revises the written court order to match the judgment rendered by the judge–it does not change the court’s judgment. This is an important distinction. A motion for judgment nunc pro tunc can only ask the judge to revise a clerical error in drafting the written order.
If you believe the judge erred in making a decision on facts or law then asking the court to change its decision in your case then you are not asking for a correction to a clerical error. If you believe the judge made an error in his or her decision then you must pursue appropriate remedies such as:
- motion for reconsideration
- motion for new trial
- Writ for habeas corpus
These and other procedural steps can ask the court or a higher court to reconsider or change the substance of the judgment. Keep in mind that merely disliking the substance of a judgment is unlikely to change the substance unless the judgment is defective by law or significantly disconnected from the facts presented to the court.
A clerical error is an error in drafting the motion rather than an error in the judgment itself. Clerical errors are common in jurisdictions like Texas where the parties draft orders rather than the judge or the judge’s staff.
A motion for judgment nunc pro tunc intends to prevent situations down the road where the order does not match the judgment and problems arise enforcing the judgment when it does not match the judgment.
A motion for judgment nunc pro tunc will never change the substance of the judgment.
Motion for judgment nunc pro tunc and timing of filing the motion
Judgment nunc pro tunc is only necessary to correct clerical errors after the court’s plenary power expired. Typically a court loses plenary power (authority over the lawsuit) thirty days after signing judgment; but there are a small number of other reasons why plenary power may extend beyond the default deadline.
It is important to know whether the court has plenary power or if a nunc pro tunc is necessary. If the court has plenary power at the time of a correction then the correct motion is one to modify judgment.
Once plenary power is lost, the court can only sign a judgment nunc pro tunc that makes a clerical correction. Modifying judgment will change deadlines for appeals. A judgment nunc pro tunc will not. That is among the reasons why it is important to know which remedy for a clerical correction is appropriate.
Another reason why it is important to know the difference has to do with the timing of a motion. A motion filed shortly before the court loses plenary power may not be signed before the loss of plenary power.
When can I file a motion for judgment nunc pro tunc?
Motions for judgment nunc pro tunc can be filed in most cases when necessary. You can file the motion for both civil and criminal cases. It is more common to file these motions in civil cases to reform the written order but it is possible to file a motion for judgment nunc pro tunc in a criminal case too.
Divorces and other family law cases are common sources of these motions. The main reason is because the parties often draft the written orders and may draft the order with imprecise language. Sometimes attorneys or parties try to slip in language that differs from the judgment. A judgment nunc pro tunc can resolve overlooked errors in the orders.
Each state and federal jurisdiction has its own procedural judicial rules for timing; however, you can often file a motion for judgment nunc pro tunc without time limit because a written order that matches the court’s judgment is in the best interest of the judiciary and the parties involved.
Nevertheless, it is usually best to file the motion early so the judge remembers the judgment and if there is a question of what exactly the judge rendered as a judgment the judge will be more likely to order the revision.
Judgment nunc pro tunc in Texas
In Texas a motion for judgment nunc pro tunc can be filed at any time by an involved party to correct the record of the judgment. The motion does not require a specific format for the request but it must clearly describe the correction requested and the reason for the correction. It is generally best for the motion to articulate in detail the reason for the request but the request does not require magic legal language to request judgment nunc pro tunc. Under Texas Rule of Civil Procedure 316:
Clerical 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 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.Tex. R. Civ. Proc. 316
Although the motion does not require specific format for the body of the motion, motions filed in Texas require a general format. The motion must include the required format for any other motion. Generally it must include the header with the cause number, court, caption and title. It must also include a signature block for the party filing the motion. It also must include a specific request for relief–in this case what corrections the party requests to the order. You can find an example motion here.
In most Texas courts you or your attorney will also need to file or present a proposed order granting the motion and a proposed order to the original order with the proposed changes.
Proving your motion for judgment nunc pro tunc in Texas
The best evidence of a judgment that requires correcting is a written record of the proceeding in which the judge rendered judgment.
The case file (electronically or paper) may include a minutes order in which the judge or staff wrote into the file the main provision of the judgment.
This may resolve questions about the judgment rendered.
If the minute order does not resolve a dispute about the written order it may be necessary to obtain a transcript of the proceeding which secures the statements of the parties and the oral rendition of the judgment. Usually there is an oral pronouncement of the judgment into the record although some judges, particularly family court judges, do not always go on the record with their proceedings.
A significant problem arises when there is not written evidence of the judgment or the written evidence does not resolve questions about the written order. Sometimes disputes over the written order involve aspects not directly addressed by the record of the hearing.
In these cases it is usually necessary to schedule a hearing to discuss what record exists and why the desired changes best matches what evidence of the hearing exists. This is a reason why parties should file these motions early. The sooner filed the more likely the judge will remember the context of the hearing.