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Moore v. Novark9/28/1995
ial court has no more power to act in granting sanctions without jurisdiction than it does in any other matter. Id. at 155.
We decline to follow the contrary position advocated by the San Antonio Court of Appeals in Wolma v. Gonzalez, 822 S.W.2d 302 (Tex. App. -- San Antonio 1991, orig. proceeding). While not directly on point, the discussion of sanctions imposed under rule 13 in Wolma is analogous to the attempted sanction order in this case. See TEX. R. CIV. P. 13. Relying primarily on federal law, the court in Wolma essentially held that a motion for rule 13 sanctions could be granted in a dismissed cause even though the court's plenary power had expired. Id. at 303. Wolma also relied upon two Texas cases, Goad v. Goad, 768 S.W.2d 356, 358 (Tex. App. -- Texarkana 1989, writ denied), cert. denied, 493 U.S. 1021 (1990), and P.N.L., Inc. v. Owens, 799 S.W.2d 439, 441 (Tex. App. -- El Paso 1990, no writ), for the proposition that a trial court can impose a rule 13 sanction postjudgment. We agree with this general proposition. However, neither case stands for the proposition that a trial court can impose rule 13 sanctions after the expiration of its plenary jurisdiction.
We find that the decisions in Jobe and Hjalmarson, also discussing rule 13 sanctions and holding that sanctions may not be issued outside the court's plenary power, are better reasoned.
The only postjudgment proceedings over which a trial court retains jurisdiction after the expiration of its plenary power are proceedings to clarify or enforce a judgment. Allen v. Allen, 717 S.W.2d 311, 312 (Tex. 1986) (per curiam). The sanctions order is characterized as an order nunc pro tunc. See TEX. R. CIV. P. 316. Clerical errors in the entry of a judgement previously rendered may be corrected by a judgement nunc pro tunc after the court's plenary power has expired. Comet Aluminum Co. v. Dibrell, 450 S.W.2d 56, 58 (Tex. 1970); West Texas State Bank v. General Resources Mgmt. Corp., 723 S.W.2d 304, 306 (Tex. App. -- Austin 1987, writ ref'd n.r.e.). A clerical error is a mistake or omission that prevented the judgement as entered from accurately reflecting the judgement that was rendered. Universal Underwriters Ins. Co. v. Ferguson, 471 S.W.2d 28, 29-30 (Tex. 1971).
A judicial error occurs when the court considered the issue and made an erroneous decision. Comet Aluminum, 450 S.W.2d at 59. If a court attempts to correct a judicial error by signing a judgement nunc pro tunc after the expiration of its plenary power, the judgement is void. See Dikeman v. Snell, 490 S.W.2d 183, 186 (Tex. 1973).
Here, the trial court granted Burnett's motion for reconsideration in part, withdrew her previous order, and instituted different punishment. There is no question that the court did not merely correct a clerical error in the previous order, but instead re-evaluated her earlier decision and made a new and different ruling. The sanctions order is not a nunc pro tunc order.
We hold that the court's sanctions order is void because it issued after the trial court's plenary power had expired. Thus, there is no order withdrawing the original contempt order. The propriety of the court's order holding Burnett in contempt is not before this court, however. Moreover, it is well settled that contempt orders are not reviewable by appeal. Ex parte Williams, 690 S.W.2d 243, 243 n.1 (Tex. 1985); Ex parte Cardwell, 416 S.W.2d 382, 384 (Tex. 1967); Metzger v. Sebek, 892 S.W.2d 20, 54, (Tex. App. -- Houston [1st Dist.] 1994, writ denied). The validity of a contempt order can be attacked only by a writ of habeas corpus, or in limited circumstances, by a writ of mandamus. Rosser v. Squier, 38 Tex. S.Ct.J. 988, 989 (June 29,
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