In Re Michael Wayne Lowman v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-25-00153-CV
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IN RE MICHAEL WAYNE LOWMAN

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Original Proceeding
410th District Court of Montgomery County, Texas
Trial Cause No. 23-07-10524
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OPINION

Michael Wayne Lowman filed a petition asking this Court to issue a writ of

mandamus compelling the trial court to vacate its March 4, 2025, Judgment Nunc

Pro Tunc, “and or” to schedule a hearing on a motion for new trial which he filed

shortly after the Judgment Nunc Pro Tunc was signed. Samantha Lowman, the Real

Party in Interest, filed a response. Because we conclude the Judgment Nunc Pro

Tunc was signed outside the trial court’s plenary jurisdiction and substantively

modified an adjudicated portion of the original judgment based on additional judicial

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reasoning and determinations, we conclude the Judgment Nunc Pro Tunc is void,

and we conditionally grant partial relief.

Background

This divorce case was heard on June 3, 2024. For reasons that do not impact

our analysis, neither Michael nor his attorney were in attendance. On June 17, 2024,

the trial court signed a Default Final Decree of Divorce, a provision of which was

that “each party shall be responsible for his or her own attorney’s fees, expenses,

and costs incurred as a result of legal representation in this case.” 1 Nothing in the

record indicates any clerical error was made in this or any other respect when the

trial court’s rulings were reduced to writing and signed on that date.

On June 26, 2024, Michael filed a combined motion to set aside the default

judgment and motion for new trial on grounds that do not impact our analysis.

On September 6, 2024, the trial court held a hearing on Michael’s motion for

new trial. During the hearing, Samantha’s attorney requested attorney’s fees that had

been incurred “in order to respond to the motion and pleadings that were filed by

Mr. Lowman and counsel,” explaining:

Judge, we’re just getting to the point at this point that our client’s
litigation costs have been driven up by this entire thing. We’ve had
multiple trial appearances, where Mr. Lowman has not appeared, his
counsel has appeared, and listened to the court state it. We’ve had
multiple hearings thereafter related to these issues, and so we are

For simplicity, we refer to the Default Final Decree of Divorce as “the
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judgment” or “the final judgment.”
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requesting attorney’s fees at this point in -- in response to this, and it’s
just -- how long is this going to go on?

After receiving testimony regarding the amount of attorney fees, the trial court orally

pronounced that it denied Michael’s motion for new trial and awarded $2,560 in

attorney’s fees in favor of the law firm representing Samantha.

On January 29, 2025, Samantha filed a Motion for Judgment Nunc Pro Tunc

in which she argued the trial court’s oral pronouncement awarding attorney’s fees

“was never formally entered” and that the “omission of such an order is a clerical

error which is capable of correction[]” by judgment nunc pro tunc, “plenary power

notwithstanding.”

On March 4, 2025, the trial court signed an order granting Samantha’s Motion

for Judgment Nunc Pro Tunc and a separate order entitled “Order Denying Motion

for New Trial [and] Judgment Nunc Pro Tunc” which denied Michael’s motion for

new trial and granted a judgment nunc pro tunc awarding $2,560 in attorney’s fees

to the law firm representing Samantha “for the expense of defending against the

motion for new trial.”

On March 13, 2025, Michael, acting pro se, filed another Motion for New

Trial asserting grounds that do not impact our analysis.

On May 6, 2025, Michael filed a pro se petition for writ of mandamus in this

Court asking us to compel the trial court to hold a hearing on his most recent motion

for new trial and to “vacate the… Judgment Nunc Pro Tunc, as required by law.”
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Michael argues that “the trial court abused its discretion in signing the… Judgment

nunc pro tunc on March 4, 2025 being it may have been outside the court[’]s

jurisdiction which would void anything[.]”2

Jurisdiction

“A court must have jurisdiction to act or its acts are void.” Hjalmarson v.

Langley, 840 S.W.2d 153, 155 (Tex. App.—Waco 1992, orig. proceeding). Our

jurisprudence and rules of procedure impose temporal limits on a trial court’s

jurisdiction in any given case. A trial court’s power naturally begins when the case

is filed, but it does not end when the court signs a final judgment; instead, the court

retains plenary jurisdiction for a time, the duration of which depends on whether

certain steps are taken, as discussed below.

During its plenary jurisdiction, the trial court’s power to change its own

judgment is essentially absolute; it may correct, modify or reform the judgment, or

it may set it aside or reverse it entirely. See Mathes v. Kelton, 569 S.W.2d 876, 878

(Tex. 1978); Ibarra v. Bahad, No. 05-23-00158-CV, 2024 Tex. App. LEXIS 3591,

at *4 (Tex. App.—Dallas May 22, 2024, no pet.) (mem. op.). But after its plenary

jurisdiction expires, the trial court’s power is significantly limited. See Ex parte City

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Although a self-represented litigant “is still required to comply with the law
and rules of procedure[,]” we liberally construe pleadings and briefs filed by such a
litigant. Giddens v. Brooks, 92 S.W.3d 878, 880-81 (Tex. App.—Beaumont 2002,
pet. denied).
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of Irving, No. 15-24-00029-CV, 2024 Tex. App. LEXIS 8993, at *8 (Tex.

App.―Austin [15th Dist.] Dec. 19, 2024, pet. filed) (mem. op.). “The general rule

is that judicial action taken after the trial court’s plenary power has expired is void.”

Kenseth v. Dall. Cnty., 126 S.W.3d 584, 599 (Tex. App.—Dallas 2004, pet. denied);

see also City of Irving, 2024 Tex. App. LEXIS 8993, at *8. As always, the general

rule comes with certain exceptions, and the one that matters in this case is that even

after its plenary jurisdiction has ended, “the court may at any time correct a clerical

error in the record of a judgment and render judgment nunc pro tunc under Rule

316[.]” Tex. R. Civ. P. 329b(f).

Nunc Pro Tunc

“A judgment nunc pro tunc can correct a clerical error in the original

judgment, but not a judicial one.” Tex. Dep’t of Transp. v. A.P.I. Pipe & Supply,

LLC, 397 S.W.3d 162, 167 (Tex. 2013). “A clerical error is a mistake occurring in

the reduction of the judgment to writing, the correction of which does not result from

‘judicial reasoning or determination,’ but rather an examination of whether the

writing properly reflects the judgment as actually rendered.” Burgess v. Burgess, 834

S.W.2d 538, 540 (Tex. App.—Houston [1st Dist.] 1992, no writ) (quoting Andrews

v. Koch, 702 S.W.2d 584, 585 (Tex. 1986)).

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Mandamus

In the absence of an applicable exception, any order signed outside a trial

court’s plenary jurisdiction is “void and constitute[s] an abuse of discretion[,]” and

mandamus relief is appropriate to require a trial court to vacate such an order. In re

Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding); Tex. R. Civ.

P. 329b(f) (a trial court may at any time “sign an order declaring a previous judgment

or order to be void because signed after the court’s plenary power had expired[]”).

When a trial court’s order is void, “the relator need not show it did not have an

adequate appellate remedy and mandamus relief is appropriate.” Sw. Bell Tel. Co.,

35 S.W.3d at 605.

Analysis

The final judgment in this case was signed on June 17, 2024. Ordinarily, the

trial court would have retained plenary power over the judgment for only 30 days,

but because Michael timely filed a motion for new trial on June 26, the trial court’s

plenary power was extended until the 30th day after the date the trial court would

eventually overrule Michael’s motion. See Tex. R. Civ. P. 329b(d), (e). When a trial

court does not rule on a motion for new trial by way of a written order signed on or

before the 75th day after the final judgment was signed, the motion for new trial is

overruled by operation of law on that 75th day. Id. 329b(c). Here, August 31 was the

75th day after the judgment was signed, but since that was a Saturday and September

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2 was a holiday, the 75-day period extended to the end of the next business day

which was September 3. See id. 4. Although it was orally pronounced during the

September 6 hearing that the court was overruling Michael’s motion for new trial,

the motion had already been overruled by operation of law on September 3 because

no written order had been signed by that date. See id. 329b(c). The 30th day after

September 3 was October 3, at which time the trial court’s plenary power ended. See

id. 4, 329b(e).

This means the trial court still had plenary power on September 6 when it

announced in open court that it was awarding attorney’s fees to Samantha’s lawyer.

But it also means the orders signed by the trial court on March 4, 2025, were signed

after the trial court’s plenary power expired on October 3, 2024. Therefore, unless

an exception applies, the March 4 orders are void. See Kenseth, 126 S.W.3d at 599.

In the trial court, Samantha claimed Rules 316 and 329b(f) provide such an

exception in this case because the Judgment Nunc Pro Tunc merely corrected a

clerical error. Samantha correctly noted that the trial court “orally rendered judgment

for attorney’s fees” on September 6, and that an order reflecting the award “was

never formally entered.” Samantha argued, “The omission of such an order is a

clerical error which is capable of correction[,]” because “[t]he Court maintains the

ability to correct clerical mistakes under the authority of Texas Rules of Civil

Procedure 316 and 329(f).”

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Samantha cited Lubbock County v. Reyna, 670 S.W.3d 769 (Tex. App.—

Amarillo 2023, pet. denied), and Hutcherson v. Lawrence, 673 S.W.2d 947 (Tex.

App.—Tyler 1984, orig. proceeding), as examples of cases in which judgments nunc

pro tunc, signed outside plenary jurisdiction, were found to have been properly

employed to add attorney’s fees to written judgments that originally did not include

such fees. Another such example is our opinion in In the Interest of A.K.M., No. 09-

12-00464-CV, 2014 Tex. App. LEXIS 2230, at *42 (Tex. App.—Beaumont Feb. 27,

2014, pet. denied) (mem. op.), where we concluded “that the trial judge’s

pronouncement awarded a judgment in favor of W. from M. for attorney’s fees, and

the failure to include in the written judgment a provision that expressly ordered M.

to pay W. attorney’s fees in the amount of $241,417.59 was a clerical error that the

trial court could properly correct by entry of a judgment nunc pro tunc.”3

We consider those cases distinguishable because in each such case, the record

established that the trial court orally rendered a judgment that included an award of

attorney’s fees and that an error omitting such fees occurred when the court’s oral

rendition was subsequently being reduced to writing, resulting in a variance between

the original oral rendition and the original written judgment. Not so here. The final

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Cf. In the Int. of A.S.G., 345 S.W.3d 443, 448-49 (Tex. App.—San Antonio
2011, no pet.) (“[B]ecause an award of attorney’s fees is a substantive issue, and not
merely correction of a clerical error, the court’s subsequent amended order may not
be upheld under the rules permitting a court to modify a judgment after expiration
of its plenary power in order to correct a clerical error.”).
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judgment indicates each side was responsible for its own attorney’s fees, and nothing

in the mandamus record indicates this provision varies from any prior oral rendition.

Based on the record, we conclude that on June 17 the trial court signed a written

judgment free from clerical error, accurately representing the judgment the trial court

actually rendered, including the provision that each side was responsible for its own

attorney’s fees. The record also establishes that the trial court subsequently made

rulings that required additional judicial reasoning and determinations, including

considering whether Michael was entitled to a new trial, considering whether

Samantha’s counsel was entitled to attorney’s fees, receiving evidence regarding the

amount of those fees, and deciding to award the law firm most, but not all, of the

amount requested. These were judicial decisions, not clerical tasks.

The trial court acted within its plenary power when it orally pronounced it was

denying Michael’s motion for new trial and requiring Michael to pay a portion of

Samantha’s attorney fees for responding to the motion. By rule, the first of these

pronouncements required no written order and had already been accomplished by

operation of law. Tex. R. Civ. P. 329b(c). The second, however, would require

modification of a “substantive adjudicated portion[] of the judgment” because the

judgment indicated that each party was responsible for its own attorney’s fees “in

this case.” See Custom Corporates, Inc. v. Sec. Storage, Inc., 207 S.W.3d 835, 839

(Tex. App.—Houston [14th Dist.] 2006, no pet.) (“The trial court may not, however,

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issue an order that is inconsistent with the original judgment or that otherwise

constitutes ‘a material change in the substantive adjudicative portions of the

judgment’ after its plenary power has expired.”) (quoting Comm’n for Lawyer

Discipline v. DeNisco, 132 S.W.3d 211, 215 (Tex. App.—Houston [14th Dist.] 2004,

no pet.)).

“An order granting a new trial or modifying, correcting, or reforming a

judgment must be written and signed. A trial judge’s oral pronouncement granting a

motion for new trial or motion to modify, reform, or correct a judgment and a docket

entry indicating that such motion was granted cannot substitute for a written order

required by Rule 329b.” Faulkner v. Culver, 851 S.W.2d 187, 188 (Tex. 1993) (orig.

proceeding) (citing Tex. R. Civ. P. 329b(c) and McCormack v. Guillot, 597 S.W.2d

345, 346 (Tex. 1980) (orig. proceeding)). Therefore, to be effective, the trial court’s

oral modification of the attorney’s fees provision of the final judgment was required

to be reduced to writing and signed by the judge before the trial court’s plenary

power expired on October 3. This was not done, and “the failure to follow the express

requirements of Rule 329b(c) is not a clerical error.” Taack v. McFall, 661 S.W.2d

923, 924 (Tex. 1983) (orig. proceeding).

Conclusion

The Judgment Nunc Pro Tunc did not correct a clerical error in the Default

Final Decree of Divorce, because the difference between the two judgments required

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additional judicial reasoning and determination. “An attempted nunc pro tunc

judgment entered after the trial court loses plenary jurisdiction is void if it corrects

judicial rather than clerical errors.” Tex. Dep’t of Transp., 397 S.W.3d at 167. We

conclude the trial court’s March 4, 2025, orders are void. We also conclude

Michael’s March 13, 2025, Motion for New Trial was untimely, because it was filed

after his preceding motion for new trial was overruled and more than thirty days after

the judgment complained of was signed. See Tex. R. Civ. P. 329b(a) (b). An

untimely motion for new trial is a nullity. Moritz v. Preiss, 121 S.W.3d 715, 720

(Tex. 2003). Therefore, the trial court is not required to hear or consider the motion.

We conditionally grant partial mandamus relief. We are confident the trial

court will vacate the March 4, 2025, Order on Motion for Judgment Nunc Pro Tunc

and the March 4, 2025, Judgment Nunc Pro Tunc. All other relief requested in

Michael’s petition is denied.

PETITION CONDITIONALLY GRANTED IN PART; DENIED IN PART.

PER CURIAM

Submitted on August 25, 2025
Opinion Delivered September 18, 2025

Before Johnson, Wright and Chambers, JJ.

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