author: DOUGLAS, Judge.

text:
    Craig JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 52838.
    Court of Criminal Appeals of Texas.
    March 1, 1977.
    Goodwin & Hawthron, court appointed on appeal, Beaumont, for appellant.
    Tom Hanna, Dist. Atty., and John R. DeWitt, Asst. Dist. Atty., Beaumont, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from an order revoking probation. On February 4, 1975, appellant pled guilty to the offense of forgery. Punishment was assessed at eight years, probated. One of the conditions of the probation was that he report to his probation officer as directed.

Subsequent to the filing of this appeal in this Court, appellant appeared before the Honorable Larry Gist and asked that he be allowed to waive his appeal. By supplemental transcript, a copy of his written waiver of appeal and his appearance in open court is now contained in this record.

In accordance with the request of appellant, the appeal should be dismissed.

It is so ordered.


source: Caselaw Access Project

author: ROBERTS, Judge.

license: Public Domain

text:
    Leandro Fernandez VERA, Appellant, v. The STATE of Texas, Appellee.
    Nos. 53954, 53956.
    Court of Criminal Appeals of Texas.
    March 1, 1977.

      Will Gray, Houston, on appeal only, for appellant.
    Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III and Ned B. Morris, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

Appellant waived trial by jury and entered pleas of guilty before the court to two indictments charging him with delivery of heroin (Cause Nos. 53,954 and 53,955) and one indictment charging him with possession of heroin (Cause No. 53,956). Punishment in each of the delivery of heroin cases was assessed at imprisonment for thirty-five (35) years. Punishment in the possession of heroin case was assessed at imprisonment for twenty (20) years. The sentences run concurrently.

The appeal is before us on two grounds of error. It is first contended that appellant was denied a fair trial on the issue of punishment because the trial court, as trier of the facts, was prejudiced against the range of punishment provided in the Controlled Substances Act (Art. 4476-15, Vernon’s Ann.Civ.Stat.). Secondly, appellant contends that he was denied the effective assistance of counsel when his retained attorney did not move to withdraw his guilty pleas after the trial judge disclosed his opposition to the minimum range of punishment provided by the Controlled Substances Act. The sufficiency of the evidence to support the conviction is not challenged.

The comments of the trial judge, which appellant contends show such prejudice, are as follows:

“Of course, this court feels that if a man is just out selling heroin_known addict, then I don’t think the law is sufficient in my opinion but I am bound by it whatever the maximum is.
******
“You have filed an application for probation. There is no agreement among anyone as to whether it will be granted or not. I am going to request the probation department to make an exhaustive investigation. I want them to talk to all the narcotics officers and get any background information. . . . Now, this court is not inclined to give probation in a sale of heroin case. However, if the facts — if the man was selling it simply to make money, well then there will be no probation. In my opinion the law is not sufficient although I am bound by it to cover _the punishment is not sufficient in my opinion for a man to go out and sell heroin. We will hold it off until we get a pre-sentence investigation. . . .”

Article 5, Sec. 11 Vernon’s Ann.Tex.Cons., provides, in part:

“No judge shall sit in any case wherein he may be interested, or where either of the parties may be connected with him, either by affinity or consanguinity, within such a degree as may be prescribed by law, or when he shall have been counsel in the case.”

In Galveston & H. Inv. Co. v. Grymes, 94 Tex. 618, 64 S.W. 778 (1901), it was held that the grounds for disqualification of the judges of the courts in this State were specified in the Constitution, and they were exclusive of all others. Subsequently, the Legislature enacted the predecessor to present Article 30.01, Vernon’s Ann.C.C.P., which now reads as follows:

“No judge or justice of the peace shall sit in any case where he may be the party injured, or where he has been of counsel for the State or the accused, or where the accused or the party injured may be connected with him by consanguinity or affinity within the third degree.”

In Ex parte Largent, 144 Tex.Cr.R. 592, 162 S.W.2d 419, cert. denied, 317 U.S. 668, 63 S.Ct. 72, 87 L.Ed. 536, rehearing denied, 317 U.S. 713, 63 S.Ct. 443, 87 L.Ed. 568, this Court held that Article 5, Sec. 11, of the Constitution and the predecessor to present Article 30.01, supra, provide the exclusive ground for disqualifying a judge from sitting or acting in a criminal case.

It has been held that the bias or prejudice of a trial judge not based upon interest is not a legal disqualification. Aldridge v. State, 170 Tex.Cr.R. 502, 342 S.W.2d 104 (1961); Templin v. State, 167 Tex.Cr.R. 605, 321 S.W.2d 877 (1959); Williams v. State, 126 Tex.Cr.R. 42, 69 S.W.2d 759 (1934). However, when indicated or shown, any prejudice or opinion of guilt on his part calls for close scrutiny of the trial judge’s rulings. Aldrige v. State, supra; Williams v. State, supra. But bias of a trial judge, standing alone, does not constitute error. An accused could complain of an erroneous ruling made by the trial court as the result of prejudice, but it would be the error in the ruling rather than the prejudice that would give him the right to complain. Bolding v. State, 493 S.W.2d 181 (Tex.Cr.App.1973).

From what we have stated above, it is clear that the trial judge was not disqualified to preside in the instant cases either under the Constitution or the statute. Appellant asks us, however, to apply Article 35.16(c)(2), Vernon’s Ann.C.C.P., which relates to juror disqualification, to disqualification of a trial judge. That statute provides that a juror is disqualified if “he has a bias or prejudice against any of the law applicable to the case upon which the [defendant] is entitled to rely, either as a defense to some phase of the offense for which the defendant is being prosecuted or as a mitigation thereof or of the punishment therefor.” However, it has been held that the fact that a juror is prejudiced against the commission of crime is no ground for disqualification. Chamberlain v. State, 453 S.W.2d 490 (Tex.Cr.App.1970). Nor is a juror disqualified because he has a prejudice against the crime with which the accused is charged. Cooper v. State, 72 Tex.Cr.R. 266, 162 S.W. 364 (1914).

We decline to apply Article 35.-16(c)(2), supra, to trial judges. Nevertheless, we observe that even if that statute were applicable, the trial judge in the instant case was not disqualified. In the instant case the trial judge indicated his inclination not to grant probation in cases involving the delivery of heroin. Appellant pciints to nothing in the record that would indicate that the trial judge did not give consideration to the full range of punishment applicable to the offenses for which appellant was charged. In view of the fact that appellant admitted a prior conviction for possession of heroin in California and had pleaded guilty in the instant cases to one charge of possession of heroin and two charges of delivery of heroin, the trial court’s disinclination to grant probation is understandable. Consequently, we hold that the trial judge was not disqualified to preside in the instant cases.

Having held that the trial judge was not disqualified in these cases, it follows that appellant was not denied the effective assistance of counsel for failure to move to withdraw appellant’s guilty pleas because of the alleged disqualification.

The judgment in Cause No. 53,954 recites that punishment was assessed on January 24,1974. Punishment was actually assessed on January 24, 1975, and the judgment is reformed to so reflect.

As reformed, the judgment in Cause No. 53,954 is affirmed. The judgments in Cause Nos. 53,955 and 53,956 are affirmed.


author: DAVIS, Commissioner.

text:
    Milton L. GRANTHAM, Appellant, v. The STATE of Texas, Appellee.
    No. 54009.
    Court of Criminal Appeals of Texas.
    March 1, 1977.
    Michael R. Gibson, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty., Thomas C. Roepke, Asst. Dist. Atty., El Paso, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from an order revoking probation.

On November 20, 1974, appellant entered a plea of guilty to the offense of unauthorized use of a vehicle. Punishment was assessed at ten years, probated.

On March 24, 1976, a motion to revoke appellant’s probation was filed and one of the violations alleged was that on January 30, 1976, appellant “did then and there unlawfully, with intent to deprive the owner, Angelita Peregrino, of property, namely, a purse and contents therein, exercise control over and obtain such property which had a value of $8.00.”

The record reflects that after a hearing on September 7, 1976, the court entered an order revoking appellant’s probation, and among the court’s findings was a recitation that appellant had violated his probation in the manner hereinabove set forth.

Appellant contends that the court abused its discretion in revoking his probation “because the evidence adduced by the State is insufficient to prove up the commission by appellant of an offense.”

Angelita Peregrino, a student at Irvin High School in El Paso, testified that she was walking down Montana Street in El Paso en route to see her mother, who was in the hospital, when appellant “came up to me from behind and took my purse.” Peregrino related that she “. . . held on to the purse for some time and he pulled it. Well, I guess I was scared, I thought he might pull me down, hit me so I let go. As soon as I let go he started running and I ran after him screaming.” The victim placed the value of the purse “around $3, $4, $5,” and stated it contained “Around $8 to $10, maybe more.” Peregrino further testified that she did not give appellant permission to take her purse. We find the evidence sufficient to sustain the court’s finding that appellant committed the offense of theft. See V.T.C.A., Penal Code, Sec. 31.03.

Appellant contends that the court abused its discretion in revoking appellant’s probation “because the State failed to plead any offense committed by appellant.”

At the conclusion of the testimony at the hearing on the motion to revoke, appellant voiced the following objection to the pleading as it relates to the theft of the purse:

“. . . because it does not state that he unlawfully obtained the property or that he unlawfully exercised control of it. It is a technical objection, your Honor. The drafting is in essence the complaint. We feel that it doesn’t make sense. It doesn’t set out any offense.”

The pleadings of a motion to revoke probation need not meet the requirements of an indictment. It is enough that the pleadings give the defendant fair notice of allegations against him so that he may prepare a defense. Figgins v. State, Tex.Cr.App., 528 S.W.2d 261; Fowler v. State, Tex.Cr.App., 509 S.W.2d 871.

Further, appellant made no complaint about the pleadings until the conclusion of the evidence. He cannot be heard to complain. Ausborne v. State, Tex.Cr.App., 499 S.W.2d 179.

No abuse of discretion is shown in the court revoking appellant’s probation.

The judgment is affirmed.

Opinion approved by the Court.


author: O’QUINN, Justice.

text:
    F. W. WIEGAND, Jr., Appellant, v. Lupe RIOJAS, Appellee.

    No. 12482.
    Court of Civil Appeals of Texas, Austin.
    March 30, 1977.

      Robert L. Crider, Austin, for appellant.
    0. T. Moore, Jr., Blundell & Moore, Lock-hart, for appellee.

        Editor's Note: The opinion of the Court of Civil Appeals of Texas, in Risher v. Chrisman, published in the advance sheets at this citation (547 S.W.2d 287), was withdrawn from publication by request of the Court.

   O’QUINN, Justice.

Lupe (Guadalupe) Riojas, the appellee, brought this suit in August of 1974 claiming an easement to cross land owned by F. W. Wiegand, Jr., in going to and from Highway 183 and land owned by Riojas adjoining the Wiegand tract, but which does not front on the highway. Riojas alleged that he had been crossing the Wiegand property since April of 1951, until stopped by Wie-gand in January of 1974, a use in which Wiegand’s “predecessors in title acquiesced.”

Trial was before the court without aid of a jury, following which the court entered judgment awarding Riojas “rights of ingress and egress over” the Wiegand tract “adjacent to and parellel [sic] with that pipe line . . . easement to Texas New Mexico Pipe Line Company from U. S. Highway 183 to a point where said pipe line enters” the Riojas land.

Wiegand appealed from the judgment and brings the single point of error that Riojas failed to prove the elements necessary to establish an easement by prescription across the Wiegand property. We will sustain appellant’s point of error and reverse the judgment of the trial court. We will render judgment that Riojas take nothing by his suit.

Riojas testified at trial that he began in 1943 crossing the Wiegand tract, which at that time was owned by Mrs. Hettie I. McMillan. The tract now owned by Riojas was owned at that time by Dr. Edgar Smith, by whom Riojas was employed. It is undisputed that in this period permission had been given Dr. Smith to cross the McMillan land from the highway in order to reach Smith’s property to gather firewood.

In 1951 Riojas acquired the Smith tract, and permission was granted Riojas to cross the McMillan property in going to and from the highway to reach the Riojas tract. The McMillan, or intervening, tract was acquired in 1958 by Frederick Wiegand, Sr., father of appellant, and appellant purchased the tract in 1966.

It is settled in this state that to establish an easement by prescription, the person claiming the easement must show that use of the easement was open and notorious, adverse, hostile, exclusive, uninterrupted, and continuous for a period of ten years or more. Davis v. Carriker, 536 S.W.2d 246 (Tex.Civ.App. Amarillo 1976, writ ref’d n. r. e.); Dailey v.. Alarid, 486 S.W.2d 620 (Tex.Civ.App. Tyler 1972, writ ref’d n. r. e.). Although statutes of limitation are inapplicable to easements, Texas courts have adopted the statutory period of ten years as the period required to establish a prescriptive right. 21 Tex.Jur.2d Easements, sec. 32, p. 160 (1961); Haas v. Choussard, 17 Tex. 588, 591 (1856); Baker v. Brown, 55 Tex. 377, 381 (1881).

The burden rests on the party claiming an easement by prescription to prove all the requisite elements, and failure to make proof of any one element will defeat the claim. Davis v. Carriker, supra; Bindseil v. Collins, 481 S.W.2d 221 (Tex.Civ.App. Austin 1972, no writ); Bretzke v. Gode, 289 S.W. 111 (Tex.Civ.App. Austin 1926, no writ). As may be inferred by the stringent requirements of this burden of proof, creation of an easement by prescription is not favored by the law. Hollingsworth v. Williamson, 300 S.W.2d 194, 197 (Tex.Civ.App. Waco 1957, writ ref’d n. r. e.); Maride v. Hines, 247 S.W .2d 611, 612 (Tex.Civ.App. Fort Worth 1952, no writ). It follows that mere use will not create an easement, no matter how long continued. Dailey v. Alarid, supra; Miracle v. Hines, supra.

Use by the claimant of the prescriptive easement not only must be adverse, but must be with the knowledge and acquiescence of the owner of the servient tenement. Bindseil v. Collins, supra; Bretzke v. Gode, supra. Notice to owner of the servient tenement need not be actual but may be constructive. Cockrell v. City of Dallas, 111 S.W. 977 (Tex.Civ.App. Dallas 1908, no writ); Evans v. Scott, 37 Tex.Civ.App. 373, 83 S.W. 874 (Tex.Civ.App. Dallas 1904, no writ). Also see F. Lange, Land Titles and Title Examination, in 4 Texas Practice, sec. 376, p. 147 (1961). Notice serves to inform the servient owner that the claimant’s use is under a hostile claim of right. See 21 Tex.Jur.2d Easements, sec. 26 — see. 28 (1961); 15 Baylor L.Rev. 341, 346-347 (1963). The prescriptive period for establishing the easement does not begin to run until the servient owner against whom the prescriptive right is claimed has notice. Gooding v. Sulphur Springs Country Club, 422 S.W.2d 522 (Tex.Civ.App. Tyler 1967, writ dism’d).

It is well established in Texas that use of an easement by permission of the servient owner, either express or implied, no matter over what period of time, cannot subsequently ripen into a prescriptive right. Othen v. Rosier, 148 Tex. 485, 226 S.W.2d 622 (1950). It is true that the use of an easement which originally was permissive may become adverse at a later date, but the presumption is that there is a continuation of the permissive use. To transform permissive use of an easement into an adverse use, there must be a distinct and positive assertion of a right which is brought to the servient owner’s attention and which is hostile to the owner’s rights. Even if the prescriptive easement is claimed by a successor in interest of the party to whom permissive use originally was given, the presumption continues that the use is permissive. Miller v. Pellizzari, 342 S.W.2d 48 (Tex.Civ.App. Eastland 1960, no writ).

In the present case, after entry of judgment by the trial court, no request was made by appellant for findings of fact and conclusions of law, and none was filed by the court. The assumption on appeal is that the court found every fact necessary to sustain the judgment if such factual propositions were raised by the pleadings and supported by evidence. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950). Any legal theory that finds support in the evidence will be sufficient to affirm the judgment. Bishop v. Bishop, 359 S.W.2d 869 (Tex.Sup.1962).

After close examination of the trial record, it is apparent that Riojas did not prove the elements necessary to establish a prescriptive easement across the Wiegand tract.

During the period the Wiegand land was owned by Mrs. McMillan, Riojas testified, he was granted permission to cross the tract. Riojas also testified that it was not until 1973 or 1974 that permission to cross the land was withdrawn. The presumption is that during the period the tract was owned by Wiegand, Sr., use by Riojas was permissive. Riojas testified that he had permission to cross the property until the land was purchased by appellant, which occurred in 1966.

From the record it appears that at least until 1969, use by Riojas of the way over appellant’s land was permissive. During the 1970’s it is true Riojas made a hostile and adverse claim of right by such acts as removing fence wire and cutting the lock on a gate. However, when appellant fenced the land in the 1970’s and when appellant locked the gate as early as 1971, any prescriptive period claimed by Riojas was interrupted. Bretzke v. Gode, supra; Evans v. Scott, 37 Tex.Civ.App. 373, 83 S.W. 874 (Tex.Civ.App. Dallas 1904, no writ); Cunningham v. San Saba County, 11 Tex.Civ.App. 557, 32 S.W. 928 (Tex.Civ.App. Austin 1895, no writ), reh. overr. 33 S.W. 892 (Tex.Civ.App. Austin 1896, no writ).

We conclude that the right claimed by Riojas has not been established by elements necessary to prove a prescriptive easement. During the prescriptive period claimed by Riojas the use was for the main period permissive, and when not permissive the period has been interrupted. In addition, we note that trial was held in August of 1975, and that appellant did not take title to the tract until November of 1966. The ten-year prescriptive period, therefore, could not have run against appellant. Rio-jas testified that he crossed the Wiegand land only about four times a year, and that as of August, 1975, when trial was held, he had been on the Wiegand land only once during the previous two years, that occasion being at least a year and a half prior to trial.

An additional question, pertaining to notice of appeal and filing of deposit in lieu of bond, not raised on appeal by appel-lee but noticed by the Court, has been considered and is disposed of as now stated.

The original transcript, filed May 17, 1976, reflects that judgment of the trial court was entered on March 26, 1975, although the record on its face shows that trial was not held until August 26, 1975, or five months after date of the judgment. When oral arguments were heard and the cause was submitted in this Court, the discrepancy was brought to the attention of counsel for the parties, and appellant subsequently filed, with leave of the Court, supplemental transcript containing judgment nunc pro tunc of the trial court amending the first judgment to reflect the correct date, March 26, 1976, in lieu of 1975.

The error thereby corrected was clerical in nature, and the correction by judgment nunc pro tunc was proper. Hays v. Hughes, 106 S.W.2d 724 (Tex.Civ.App. Austin 1937, writ ref’d); City of San Antonio v. Terrill, 501 S.W.2d 394, 397 (Tex.Civ.App. San Antonio 1973, writ ref’d n. r. e.).

The record reflects that, following entry of judgment in March of 1976, appellant filed written notice of appeal on April 2, 1976, after making cash deposit in lieu of appeal bond on March 19, 1976, in addition to notice of appeal in open court as recited in the judgment.

Although perfection of the appeal as a general rule terminates the authority of the trial court, the lower court does have authority by judgment nunc pro tunc, at any time before final judgment in the court of civil appeals, to correct the record and cause it to speak the truth, and entry of such corrected judgment does not require the filing of a new appeal bond or making another deposit in lieu of a bond. Panhandle Construction Co. v. Lindsey, 123 Tex. 613, 72 S.W.2d 1068, 1072 (1934). Rules 316 and 317, Texas Rules of Civil Procedure; Finlay v. Jones, 435 S.W.2d 136 (Tex.Sup.1968). Rule 306c (as amended eff. Jan. 1, 1976). See also Reavley and Orr, Trial Court’s Power to Amend its Judgments, 25 Baylor L.Rev. 191 (1973).

We hold that the trial court acted within its authority in correcting the clerical error, which reflected the wrong date of entry of judgment, and that notice of appeal and deposit of cash in lieu of appeal bond, although prior to entry of the judgment nunc pro tunc on January 4, 1977, were not ineffective because prematurely filed.

Judgment of the trial court is reversed. We render judgment that appellee take nothing by his suit.

      . For discussion of the historical common law background of easements by prescription, see 15 Baylor L.Rev. 341 (1931); 28 C.J.S., Easements § 6; Lewis v. San Antonio, 7 Tex. 288 (1851).


author: GUITTARD, Chief Justice. AKIN, Justice,

text:
    Mary Jo RISHER, Appellant, v. Douglas RISHER, Appellee.
    No. 19067.
    Court of Civil Appeals of Texas, Dallas.
    Jan. 4, 1977.
    Rehearing Denied Feb. 18, 1977.

      Frank W. Stenger, Mauzy & Stenger, Dallas, for appellant.
    Mike McCurley, McGuire, Levy, Collins & McCurley, Irving, Barton E. Bernstein, Dallas, Ad Litem, for appellee.
   GUITTARD, Chief Justice.

Appellee has moved to dismiss this appeal for lack of jurisdiction because the original motion for new trial was overruled by the court before the amended motion was filed and no appeal bond was filed within thirty days from that date. The problem arises from the trial judge’s attempt to set aside the order overruling the original motion on the same date that it was signed and entered, but without signing a formal order setting it aside. We hold that the oral order setting aside the order overruling the original motion for new trial was not effective to extend the time for filing the amended motion and, therefore, that the appeal bond was filed late. Consequently, we sustain the motion to dismiss.

According to the transcript, the judgment was signed April 8, 1976, appellant’s motion for new trial was filed April 18, and an order overruling the original motion was signed May 6, the nineteenth day after the original motion was filed. The transcript further shows an amended motion for new trial filed on May 6 and an order overruling the amended motion signed May 28. The appeal bond was filed on June 26, more than thirty days after signing the order overruling the original motion but within thirty days after the order overruling the amended motion.

The jurisdictional question arises because of the provision in Tex.R.Civ.P. 329b(2) that an “amended motion shall be filed before the original motion is acted upon and within twenty (20) days after the original motion for new trial is filed.” If the order overruling the original motion was valid and was not effectively set aside, the amended motion for new trial, although filed within twenty days after filing the original motion, was not timely, and the period for filing the bond began to run when the original motion was overruled.

Presentment of Motion for New Trial

Appellant contends that the order overruling the original motion for new trial was a nullity because she did not present the motion to the court. In support of this argument appellant submits an affidavit of the trial judge stating that appellant’s original motion for new trial was set for a hearing on May 6 at the request of appel-lee’s counsel and that at the hearing on that date, appellee’s counsel was present and appellant’s counsel was not. Appellant’s counsel admits that he had notice of the setting and deliberately failed to appear, evidently on the theory that if he did not present the motion the court would have no authority to rule on it. Appellant makes that contention here, arguing that since Rule 329b(4) provides that it is the duty of the moving party to present a motion for new trial within thirty days after filing, the court cannot act on the motion unless the moving party presents it.

This argument is untenable under the decision of the supreme court in University of Texas v. Morris, 163 Tex. 130, 352 S.W.2d 947, 949 (Tex.1962). In that case, the motion for new trial was overruled by the trial judge on his own motion, presumably without presentment, on the very day it was filed. The supreme court held that the requirement that the motion be “presented” within thirty days means nothing more than that the movant must call the motion to the court’s attention and ask for a ruling or face the possibility that the court will not act and will allow the motion to be overruled by operation of law. Thus, the court held that the order overruling the motion was effective.

Appellant argues that the Morris case may be distinguished by the fact that the only question presented in that case was one of law and by the circumstance that the judge was going out of office on the day the motion was filed. Notwithstanding the peculiar facts of Morris, we regard that decision as standing for the rule that the movant’s failure to present his motion does not deprive the court of authority to rule on it. Consequently, although we recognize the force of appellant’s argument that the moving party may not know when his time for appeal has begun to run unless he has presented his motion, we cannot rest our decision on this ground. In this respect the present case is even less favorable to the appellant than Morris because here appellant’s counsel had notice that the motion was set for hearing and is in no position to complain that he did not know when his motion was ruled on. We conclude that the court may properly set a hearing on a motion for new trial on the request of either party and that the court has authority to rule on it at the time set, whether or not the movant appears to present it. Consequently, we cannot sustain jurisdiction of this appeal on the ground that the order overruling the original motion for new trial was a nullity and did not prevent later filing of an amended motion for new trial. We turn, therefore, to consideration of whether that order was effectively set aside by the trial court’s oral order on the same day.

Effect of Oral Order

Appellant contends that by the oral order the court effectively set aside the order overruling the motion for new trial and left the situation, for purposes of appeal, as if the original motion had not been acted on. If the oral order had this effect, the filing of the amended motion was timely, and the beginning of the thirty-day period for filing the bond did not begin to run until the amended motion was overruled on May 28. We consider first whether such an order, whether oral or written, could have the effect of extending the time for filing an amended motion. We conclude that it could not have that effect because of the restriction in Tex.R.Civ.P. 5, which provides that the court “may not enlarge the period for taking any action under the rules relating to new trials ... or the period for taking an appeal or writ of error from the trial court to any higher court . . .”

Appellant argues that the court had power to set aside its order under authority of cases such as Thompson v. Gibbs, 504 S.W.2d 630, 632 (Tex.Civ.App.—Dallas 1973, mandamus overruled), holding that under Rule 329b(5) the trial court has power over its judgments until expiration of thirty days after the motion for new trial is overruled.

The difficulty with this argument is that although a trial judge admittedly has power to grant a new trial within thirty days after signing an order overruling the motion, the quoted language of Rule 5 forbids any enlargement of the time for filing a motion for new trial or taking an appeal. Because of this restriction, the trial judge cannot extend the time for appeal by entertaining and overruling a tardy motion for new trial even though the ruling is made within the time that the court could have granted a new trial. A. F. Jones & Sons v. Republic Supply Co., 151 Tex. 90, 246 S.W.2d 853, 855 (Tex.1952). Neither can the judge accomplish the same result by setting aside his judgment and entering a new judgment so that a motion for new trial may be filed within ten days after entry of the new judgment. Chantre v. National Maritime Union Pension & Wel fare Plan, 425 S.W.2d 659 (Tex.Civ.App.-Beaumont 1968, no writ). Moreover, if the judge grants a new trial within forty-five days after the motion is filed, he cannot set aside that order and reinstate the original judgment because this action, also, would violate the restriction in Rule 5 against enlarging the time for filing a motion for new trial. Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823, 826 (Tex.1961). On the same reasoning, we conclude that the judge cannot enlarge the time for filing the amended motion by setting aside his order overruling the original motion, whether the order setting it aside is oral or written.

Appellant argues that the oral order was effective because the order overruling the original motion for new trial was not set aside for the purpose of extending the time for filing the amended motion, but rather because the judge determined that he had acted under a mistake when he overruled the original motion. The judge’s affidavit shows that when he acted on the motion he did not know that the hearing had been set at the request of appellee’s counsel or that appellant desired to file an amended motion. The affidavit goes on to state that later on the same day the court was informed by appellant’s counsel that the original motion had been set for a hearing by appellee’s counsel, that appellant desired to file an amended motion for new trial, and that the twenty days for filing the amended motion had not expired. Accordingly, the judge states that he “entertained an oral motion by appellant’s counsel to set aside the court’s order overruling the original motion for new trial.” After a telephone conversation with appellee’s counsel, the judge announced that he was setting aside the order overruling the motion, and he then entered on the docket the following notation: “Order overruling motion for New Trial set aside by the court, Oswin Chrisman.” The affidavit further shows that after this notation was made, appellant’s counsel filed the amended motion for new trial.

No written- order setting aside the order overruling the original motion for new trial was filed until after the question of jurisdiction was raised in this court. At that time appellant filed an application for entry of the order nunc pro tunc, which the trial court at first denied. Appellant then applied to this court for a writ of mandamus directing the trial court to enter the order. This court granted the mandamus on the ground that a proper entry of the order was necessary to determination of this court’s jurisdiction. The trial judge complied with our direction, and we now have before us in a supplemental transcript an order signed November 23, 1976, as follows:

On May 6, 1976, came on to be heard Respondent’s Motion to Set Aside the Order Denying Respondent’s Motion for a New Trial, and the Court being of the opinion that the same should in all respects be granted because the hearing on Respondent’s Motion for a New Trial was set and presented for hearing by Petitioner and not by Respondent, and because this Court had mistakenly assumed that Respondent had set the Motion for a New Trial for hearing and had failed to appear; and this Court further having discovered after the Motion for a New Trial had been denied that the setting and presentment of the same had been made by Petitioner rather than Respondent; and in order to allow Respondent’s counsel to timely file an Amended Motion for a New Trial;
IT IS ORDERED that this Court’s Order Denying Respondent’s Motion for a New Trial is hereby set aside, [emphasis added]

On granting the mandamus, we wrote an opinion holding that since the judge’s affidavit showed that he had signed the order overruling the original motion for new trial under the mistaken impression that the motion had been set for hearing at the request of appellant, he had power to set aside the order without at the same time granting a new trial and that the amended motion could then be filed so long as twenty days had not run from filing the original motion. We now reconsider that ruling insofar as our jurisdiction of this appeal is concerned. We conclude that regardless of the reasons which may have induced the judge to set aside his order, the judge’s affidavit and his order nunc pro tunc reveal that the purpose and intended effect of the order was to extend the time for filing the amended motion for new trial. Since such an extension is forbidden by Rule 5, the time for filing the appeal bond began to run when the original motion was overruled by the court’s order on May 6. Consequently, we have no jurisdiction of this appeal.

Although we hold, for the reasons stated, that the oral order would not have been effective if it had been immediately reduced to writing and signed, the judge’s failure to sign such a written order raises other obstacles to our jurisdiction. Appel-lee contends that the oral order could have no effect because it was not pronounced “in open court.” We need not consider this question because even if the order is regarded as one pronounced in open court, it cannot be considered for the purpose of determining the time for filing the appeal bond. Only signed written orders may be considered for that purpose under Tex.R. Civ.P. 306a, which provides:

In determining the periods within which the various steps of an appeal must be taken, the date of rendition of a judgment or order shall be deemed to be the date upon which the written draft thereof was signed by the trial judge as stated therein. This rule shall apply in determining the time within which to file a motion for new trial, notice of appeal, appeal bond or affidavit in lieu thereof, bills of exceptions, statements of fact in trial and appellate courts, transcript in appellate court, petition for writ of error if appeal is by writ of error, or other procedure in connection with appeal; but this rule shall not be construed as determining what constitutes rendition of a judgment or order in any other situation or for any other purpose.

Appellant contends that this rule applies only to final orders, such as a judgment or an order overruling a motion for new trial, from which an appeal is taken and from which time periods begin to run, and not to an order, like the present, that is interlocutory and favorable to the appealing party. This argument is untenable because the language of the rule is not so limited. It applies by its terms to any judgment or order when considered for the purpose of determining the periods for taking an appeal. Only under this construction of the rule can full effect be given to its obvious intent that matters of appellate jurisdiction be determined from matters of record rather than from informal memoranda such as docket notations and the recollection of counsel and of the judge, as appellant suggests in this case.

This construction of Rule 306a is supported by the opinion of Justice Johnson in Mercer v. Band, 454 S.W.2d 833, 836 (Tex.Civ.App.-Houston [14th District] 1970, no writ). There the court heard a motion for new trial on the forty-second day after filing and on that day made a docket entry that a new trial was then ordered. However, the court did not sign a formal order to that effect until the forty-eighth day. The court held that under Rule 306a the trial court’s action on the forty-second day “had no effect on the timetable applicable to the motion for new trial, because the court did not sign or enter any order or judgment on such date.” Therefore, the court held that the motion for new trial was overruled by operation of law on the forty-fifth day, and it went on to consider the question of whether the trial court retained jurisdiction to grant a new trial after expiration of the forty-five day period. We regard the Mercer decision as applicable to this case because, for the purpose of determining the time for appeal, we see no distinction between a judge’s oral order and docket entry granting a new trial and an oral order and docket entry setting aside an order overruling a motion for new trial. Other cases holding that a formal order must be considered effective for appellate purposes unless set aside by another timely formal order include Poston Feed Mill Co. v. Leyva, 438 S.W.2d 366, 368 (Tex.Civ.App.—Houston [14th District] 1969, writ dism’d) and Western Casualty and Surety Co. v. Southard, 465 S.W.2d 238, 239 (Tex.Civ.App.-Amarillo 1971, no writ); and cf. Burleson v. Moffett, 3 S.W.2d 544 (Tex.Civ.App.—Eastland 1928, no writ, per Hickman, C. J.), holding that an order sustaining a plea of privilege was effective notwithstanding a docket notation dated three days later reciting that the order was set aside.

Appellant disagrees with the holding in Mercer and cites Travelers Express Co. v. Winters, 488 S.W.2d 890, 892 (Tex.Civ.App.—El Paso 1972, writ ref’d n. r. e.) for its holding that if the judge, after hearing a motion for new trial, announces in open court that a new trial is granted, but fails through oversight to sign and enter a written order to that effect, the order granting the new trial may be signed and entered at any time, even more than thirty days after expiration of the forty-five day period. The Winters decision was followed in Travelers Express Co. v. Rener, 493 S.W.2d 549 (Tex.Civ.App.—Eastland 1973, no writ). Although these cases may appear to reach a result at variance with the reasoning in Mercer, careful analysis of the opinions reveals that they are not in conflict. In fact, the Winters court cites Mercer in support of its holding. The Mercer court was looking at the problem from the point of view of “the timetable applicable to the motion for new trial,” whereas the Winters court was looking at it from the point of view of the effectiveness of an oral order in open court granting the motion for new trial. In Winters the record contained an order signed nunc pro tune reciting that the trial judge made an oral pronouncement in the presence of opposing counsel before expiration of the forty-five day period that he was then granting a new trial, and the court held that this oral order was effective to set aside the judgment from which the appeal was attempted. The nunc pro tunc order only had the effect of making a proper record of that order. Winters is consistent with our construction of Rule 306a, since that rule provides that it is limited to the determination of “the periods within which the various steps of an appeal must be taken” and that failure of the judge to sign a formal order “shall not be construed as determining what constitutes rendition of a judgment or order in any other situation or for any other purpose.” Accordingly, Rule 306a does not affect an oral order granting a new trial pronounced in open court, so long as that order is not considered for the purpose of determining the timetable for motions for new trial and perfection of appeals. Such an order, therefore, is effective when rendered and may be recorded formally later by an order nunc pro tunc. Under any analysis, there is no conflict between Mercer and Winters with respect to results since in both the holding was that a new trial was effectively ordered.

Effect of Order Nunc Pro Tunc

The Winters decision is cited by appellant in support of the further argument that since the trial court has entered an order nunc pro tunc dated November 23, 1976, making a proper entry of the oral order of May 6 setting aside the order overruling the motion for new trial, that oral order must now be considered effective, and, consequently, the amended motion for new trial must be considered timely filed. In the alternative, appellant argues that if the oral order of May 6 cannot be considered effective as of its original date, then under Tex.R.Civ.P. 306b, the nunc pro tunc order must be considered effective to begin the time periods again from the date of its signing on November 23, 1976.

/[6] We cannot agree with either of these arguments. As we have already explained, we accept the reasoning in Mercer that Rule 306a limits determination of the time periods prescribed by Rule 329b to consideration of signed written orders, and we do not read the Winters opinion as standing for a contrary construction since it does not concern the time for taking an appeal. Moreover, the considerations applying to nunc pro tunc orders concerning motions for new trial áre different from those applying to nunc pro tunc entries of judgments. No time limits are prescribed for entry of judgments by Rule 329b or any other rule, and no provision is made for rendition of a judgment by operation of law. Consequently, a judgment pronounced in open court is effective when rendered, and if not immediately reduced to writing, signed, and entered in the minutes, it may be so recorded later at any time. All of the cases cited by appellant, except one to be discussed later, stand for this principle. See Dunn v. Dunn, 439 S.W.2d 830 (Tex.1969); Knox v. Long, 152 Tex. 291, 257 S.W.2d 289 (1953); Capitol Life Insurance Co. v. Rutherford, 468 S.W.2d 535, 536 (Tex.Civ.App.—Houston [1st District] 1971, no writ); Texas Employers Insurance Ass’n v. Hartel, 289 S.W.2d 380, 382 (Tex.Civ.App.-Amarillo 1956, writ dism’d).

On the other hand, Rule 329b sets a strict limit on the time for ruling on a motion for new trial and provides that such a motion is overruled by operation of law within forty-five days after filing, unless the ruling is postponed by agreement for not more than forty-five more days. Under this rule, in the absence of an agreed postponement, if no order ruling on the motion for new trial is signed before expiration of forty-five days after filing, the motion is deemed overruled by operation of law on the forty-fifth day, and any order signed thereafter purporting to overrule the motion is a nullity even though it recites that the motion was presented and orally overruled before expiration of forty-five days. Flowers v. Muse, 427 S.W.2d 727, 728 (Tex.Civ.App.-San Antonio 1968, writ ref’d); Washington v. Golden State Mutual Life Ins. Co., 405 S.W.2d 856 (Tex.Civ.App.—Houston [1st District] 1966, writ ref’d). This rule has been applied to a situation in which the court heard a motion for new trial within the forty-five day period, noted on his docket that the motion was overruled, and later signed an order nunc pro tunc reciting the date on which the ruling was announced. The nunc pro tunc order was held to be a nullity because of the provision in Rule 306a that the date of the order is the date on which it is reduced to writing and signed. In the absence of such a written order, the motion was deemed overruled by operation of law on the forty-fifth day. Hernandez v. Baucum, 338 S.W.2d 481, 483 (Tex.Civ.App.—San Antonio 1960, no writ). If a nunc pro tunc order overruling a motion for new trial signed more than forty-five days after filing the motion is a nullity with respect to determining the timetable for appeal, then, by the same reasoning, the nunc pro tunc order in this case purporting to set aside the order overruling the original motion for new trial had no effect on the time for filing the appeal bond.

We recognize that Tex.R.Civ.P. 306b provides that the right of appeal shall date from the rendition of a nunc pro tunc judgment or order and that the period possible for taking an appeal shall be computed from that date. In view of the above authorities, however, we hold that Rule 306b and Rule 5 should be construed together and that when so construed, Rule 306b does not apply to an order with respect to a motion for new trial. If Rule 306b were applied in such cases, the trial judge would be able to extend the time for appeal indefinitely, contrary to the express restriction in Rule 5, by simply delaying the signing of the order until he desired to start the time running for the appeal.

The only case cited by appellant applying Rule 306b to an order concerning a motion for new trial is Ambassador Oil Corp. v. Robertson, 384 S.W.2d 752, 755 (Tex.Civ.App.—Austin 1964), writ ref’d n.r.e. per curiam, 390 S.W.2d 472 (Tex.1965). There the time for appeal was held to begin from the date of signing of a nunc pro tunc order correcting the date recited in the original order overruling the motion for new trial. We do not regard that decision as authoritative since it is contrary to the decisions last above cited and since the supreme court, in refusing a writ “no reversible error,” was careful to point out that appellate jurisdiction was sustainable by the fact that some of the appellants who had not participated in the trial had perfected a writ of error from the trial court within the proper time. The supreme court pointedly stated that its action was “not to be construed as approving or disapproving the other holdings contained in the opinion of the Court of Civil Appeals.” Robertson v. Blackwell Zinc Co., 390 S.W.2d 472 (Tex.1965).

Our consideration of the above authorities, as well as others cited, has convinced us that if the trial judge signs a formal order overruling a motion for new trial within forty-five days after the motion is filed, he may within thirty days thereafter order a new trial, but he has no power to enter any order that would affect the timetable for an appeal from the original judgment. Consequently, in this case, the oral order purporting to set aside the order overruling the motion for new trial, even though later formalized by an order nunc pro tunc, did not serve to authorize filing of an amended motion for new trial and, therefore, did not affect the time for filing the appeal bond, which began to run when the original motion for new trial was overruled on May 6, 1976. Since the bond was not filed within thirty days of that date, we have no jurisdiction of this appeal.

Appeal dismissed.

AKIN, Justice,

concurring.

I concur in the result reached by the majority only because the trial court failed to sign a formal order setting aside its order overruling the original motion for new trial. I agree, therefore, with that part of the opinion which states that the oral order setting aside the order overruling the motion for new trial was ineffective. The supreme court, in Reese v. Piperi, 534 S.W.2d 329, 331 (Tex.1976), held that an order disposing of a motion for new trial must be reduced to writing within the forty-five-day period to be effective and that an oral rendition within this period had no effect. To hold otherwise, the court said, would violate Rules 5 and 306a by permitting entry of nunc pro tunc orders long after the appellate times had lapsed.

I cannot agree, however, with the majority’s unduly narrow reading of Rule 5. Rule 5, designated “Enlargement,” provides:

When by these rules ... an act is required or allowed to be done at or within a specified time, the court for cause shown may, at any time in its discretion (a) order the period enlarged . . . ; or (b) upon motion permit the act to be done after the expiration of the specified period . . . ; but it may not enlarge the period for taking any action under the rules relating to new trials or motions for rehearing except as stated in the rules relating thereto .

The majority focuses on the clause which states that a court “may not enlarge the period for taking any action under the rules relating to new trials . . . , except as stated in the rules . . . .” To view this in proper perspective, however, we must read all of the rule together. The first portion of the rule permits a court to enlarge any time period prescribed by the rules. The clause quoted supra is a limitation to this general grant of power, and even that limitation is modified by “except as stated in the rules . . . .” I conclude that this phrase restricts the trial court to time limits relating to motions for new trial expressly specified in other rules. Accordingly, the trial court has plenary jurisdiction to set aside an order overruling a motion for new trial if such order does not otherwise affect the time limits prescribed by other rules such as Tex.R.Civ.P. 329b. Under the majority holding, once a trial court enters an order which restricts the appellate timetable, regardless of the reason, it cannot restore the status quo by setting aside this order. Reading Rule 5 as I do would in no way enlarge the time beyond that which is proper under the rules. It merely allows an appellant full use of the prescribed time periods and gives the trial court jurisdiction to permit it. Indeed, the very purpose of Rule 5 was to permit the trial court to enlarge the time periods for appeal rather than to restrict them. Here, it is evident that the trial court entered its order overruling the motion for new trial acting on a misconception. My reading of this rule and its intent would permit a trial court to correct its error in a case such as this without granting a new trial or penalizing an appellant.

This construction is consistent with prior authority dealing with the interaction of motions for new trial and appellate times. An amended motion for new trial which is filed more than twenty days after the original motion for new trial is a nullity for appellate purposes. Valley Transit Co. v. Lopez, 263 S.W.2d 830, 831 (Tex.Civ.App.—San Antonio 1953, writ ref’d); Miller v. Esunas, 401 S.W.2d 150, 154 (Tex.Civ.App.—Tyler 1966, writ ref’d n.r.e.). Thus, an amended motion which is filed more than twenty days after the original is ineffective to preserve points on appeal. Orr Chevrolet, Inc. v. Courtney, 488 S.W.2d 883, 885 (Tex.Civ.App.—Texarkana 1972, no writ). Since Rule 329b(2) requires that an amended motion be filed within twenty days and before the original is acted upon, it would logically follow that an amended motion filed within twenty days, but after the original had been overruled, would likewise be ineffective to preserve points on appeal. This is consistent with the position taken in the majority opinion, which holds that an amended motion filed within twenty days of the original, but after the original had been overruled, was ineffective for the purpose of determining appellate times. However, it has been held that an amended motion for new trial which is filed within twenty days of the original is effective to preserve points on appeal even though the original motion for new trial had been previously overruled if the order overruling the motion for new trial was set aside within the twenty-day period. Twin City Fire Ins. Co. v. King, 510 S.W.2d 370, 375 (Tex.Civ.App.-Houston [1st Dist.] 1974, writ ref’d n.r.e.). Under the language in Rule 329b(2), this holding necessarily means that an amended motion for new trial is filed “before the original motion is acted upon” if the court sets aside its order overruling the original motion before the twenty-day period expires. Nothing in the rule suggests that different considerations should be applied in determining what is timely for the purpose of preserving points on appeal as opposed to determining the time for appeal. If the amended motion was timely filed, then the forty-five-day period set out in Rule 329b(3) for passing on the motion begins to run from the date the amended motion was filed.

Permitting the amended motion to govern the appellate timetable would not contravene Rule 5. Merely because a trial court enters an order which starts the time for appeal running does not preclude it from setting aside that order and entering a new order; the time for appeal runs from the latter order. In City of West Lake Hills v. State ex rel. City of Austin, 466 S.W.2d 722, 726-27 (Tex.1971), the supreme court held that a corrected judgment, which taxed costs not mentioned in the original judgment, effectively vacated the prior judgment, and the time for appeal ran from the second judgment. The supreme court has, however, held that a second rendition of the same judgment at a later date cannot affect the time for appeal; the time for appeal continues to run from the date of the first judgment if the sole effect of the second judgment is to increase the time for appeal. Only in that situation would it contravene Rule 5. Anderson v. Casebolt, 493 S.W.2d 509, 510 (Tex.1973). The distinction, then, is whether the trial court’s order, which would restart the time for appeal, has an effect other than enlarging the time period. An amended motion for new trial does not only change the time for appeal; it is also necessary to preserve points of error not set forth in the original motion. Twin City Fire Insurance Co. at 375. The majority concludes that the purpose of the trial court’s order here was to extend the time for appeal. However, the language in the order relied on merely states that the court’s intention was to allow appellant “to timely file an Amended Motion for New Trial.” The amended motion presented included an additional ground and would preserve that point on appeal if timely filed. Additionally, under the holdings in City of West Lake Hills and Casebolt, the controlling criteria is not the subjective intent of the trial court; rather, the reviewing court must look to the effect of the order. Only if its sole effect is extension of time is it forbidden by Rule 5.

The cases relied on by the majority are distinguishable and are not controlling here. In Chantre v. National Maritime Union Pension & Welfare Plan, 425 S.W.2d 659 (Tex.Civ.App.-Beaumont 1968, no writ), the trial court attempted to reenter the same judgment, thereby extending the time for appeal. This is the same basis as that relied upon by the supreme court in Case-bolt, which is not controlling because the amended motion raised an additional point and would not result solely in an enlargement of time. Recognition of the amended motions in A. F. Jones & Son v. Republic Supply Co., 151 Tex. 90, 246 S.W.2d 853, 855 (1952) and Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823, 826-27 (1961), would have required recognition of acts done after the time set out in other rules had expired. In the case before us, the order setting aside the overruling of the original motion and the filing of the amended motion all occurred within the twenty-day period prescribed for filing amended motions for new trial. A. F. Jones & Son concerned a tardily filed motion for new trial; since the motion itself was a nullity for purposes of appeal, the trial court could not, merely by overruling it, make it valid so as to affect the time for taking the appeal. This is consistent with the holdings in Valley Transit Co. and Miller. Similarly, the amended motion in Fulton was not overruled until the forty-ninth day, clearly beyond the time prescribed by the rules. However, the court stated that orders determining motions for new trial “cannot be un determined after the 45-day period without destroying” Rule 329b(3). Fulton at 826. Clearly, the court contemplated that such orders could be “undetermined” within the forty-five-day period. It would be incongruous to allow an order which has been “undetermined” to control an appeal. Thus, the time for appeal must run from the time the amended motion is overruled. Of course, the trial court cannot violate the mandate of Casebolt by later overruling a motion which is identical to the original motion.

Unquestionably, a trial court retains jurisdiction of a case for thirty days after overruling a motion for new trial. Thus, within thirty days after a motion for new trial is overruled by operation of law, the court may set aside its original judgment and grant a new trial. Thomas v. Gibbs, 504 S.W.2d 630, 632 (Tex.Civ.App.—Dallas 1973, mandamus overruled); Mercer v. Band, 454 S.W.2d 833, 836 (Tex.Civ.App.—Houston [14th Dist.] 1970, no writ). The same rule should apply when a motion is overruled by a signed order. See Leon & H. Blum v. Wettermark, 58 Tex. 125, 127 (1882). In view of these decisions, it seems incongruous that the trial court lacks the power to set aside an erroneously entered order overruling a motion for new trial, as the majority holds. Rather, it logically follows that the plenary jurisdiction of the trial court permits it to set aside an order overruling a motion for new trial if the effect of the trial court’s action is not solely to extend the appellate timetable and does not have the effect of extending its jurisdiction beyond the time limits prescribed in other rules.

In my view, the rules should be construed broadly so as not to deny an appellant his appeal or to restrict unduly his points of error on appeal unless the rules specifically require a contrary result. Our interpretation of the rules should not lay a trap for the unwary nor create an undue restriction on the scope of appeal.


text:
    TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Craig Otis CANON, Appellee.
    No. 19041.
    Court of Civil Appeals of Texas, Dallas.
    Dec. 2, 1976.
    Rehearing Denied Feb. 16, 1977.

      Henry Wade, Dist. Atty., Ronald D. Hinds, Asst. Dist. Atty., Dallas, for appellant.
    Stuart C. Hollimon, Strasburger, Price, Kelton, Martin & Unis, Dallas, for appellee.
   GUITTARD, Chief Justice.

In this driver’s-license suspension proceeding, both parties moved for summary judgment. The trial court overruled the motion of the Department of Public Safety and granted that of the licensee, and the Department appeals. The suspension was sought under the habitual violator statute. Tex.Civ.Stat.Ann. art. 6687b, § 22(b)(4) (Vernon 1969), on the ground of four convictions for traffic violations within one year. The licensee admits three of the convictions but asserts that the first of the four is void because of lack of jurisdiction of the court in which the judgment of conviction was rendered. We hold that such lack of jurisdiction is not established.

The disputed conviction is based on a speeding violation that is alleged to have occurred on November 12, 1974. The Department attached to its motion for summary judgment an abstract of the judgment of conviction, styled “Notice of Final Conviction,” stating that the licensee was convicted of this offense on February 4,1975, by a justice of the peace of Mitchell County, Texas, on a plea of guilty. The licensee contends that his summary judgment proof affirmatively shows that the justice of the peace had no jurisdiction because an appeal from an earlier conviction for the same offense was then pending in the county court of Mitchell County. Attached to his motion for summary judgment are a complaint filed November 13, 1974, a transcript reciting a finding of guilty certified by the justice of the peace January 21, 1975, a timely appeal bond, and an order of dismissal by the county judge dated February 4, 1975, the same day as the conviction recited in the notice filed by the Department.

The licensee questions the competency of the “Notice of Final Conviction” to establish a conviction of the offense in question. The competency of the notice for this purpose presents no problem, since the supreme court has expressly held that such a notice is competent proof of a judgment of conviction. Texas Department of Public Safety v. Casselman, 417 S.W.2d 146, 149 (Tex.1967). The supreme court has also held that when a conviction is proved by such a notice, it cannot be impeached collaterally in a driver’s-license suspension proceeding by proof that the licensee was not present in court when the judgment was rendered. Texas Department of Public Safety v. Richardson, 384 S.W.2d 128, 130 (1964).

The licensee contends that so long as an appeal was pending in the county court, the justice of the peace had no jurisdiction to try him for the same offense, and that since the proof shows two inconsistent judgments in the same case on the same day — one of conviction in the justice court and one of dismissal in the county court— the decision of the county court must control. We do not regard the two judgments as inconsistent. They may be reconciled by the possibility that the case was settled under an arrangement between the defendant and the prosecutor that the case would be dismissed in the county court and that defendant would immediately plead guilty and pay his fine in the justice court, a possibility that gains credence from the recital in the notice of conviction that the defendant pleaded guilty. We see no reason why the case could not have been disposed of in this fashion. In this collateral proceeding, the Department does not have the burden to establish that another complaint was filed and that the defendant was duly summoned before the judgment of conviction was pronounced.

For the reasons stated we hold that the records presented by the licensee are insufficient to establish lack of jurisdiction of the justice of the peace. Therefore, the notice of conviction is sufficient to establish the conviction as a matter of law and requires a summary judgment for the Department, as in Texas Department of Public Safety v. Casselman, supra. Accordingly, we reverse the judgment and remand the case to the trial court with instructions to grant the Department’s motion for summary judgment and determine the period and terms of the suspension.

Reversed and remanded with instructions.

ON MOTION FOR REHEARING

No new contention is raised in the licensee’s motion for rehearing. Justice Akin, however, in his dissenting opinion raises the point, which the licensee has never mentioned, that the State’s motion to dismiss the appeal in the county court provides record evidence that the conviction in the justice court occurred before the dismissal in the county court on the same day and, therefore, at a time when the justice court had no jurisdiction because of the pendency of the appeal. This motion was considered on original submission, but was not discussed because the licensee did not rest his argument on it.

The majority of the court are of the opinion that the motion to dismiss, even if considered a part of the record in the case before the justice court, does not establish sufficient grounds for collateral attack because it has not been raised here by the licensee and is inconsistent with the position he has taken on this appeal. We also conclude that the licensee cannot attack the judgment on that ground in this collateral proceeding because the motion to dismiss and his plea of guilty, as shown by the notice of conviction, show that he obtained a dismissal of the appeal by pleading guilty and paying his fine in the justice court. In our opinion, after thus obtaining dismissal of the prosecution in the county court, of which that court had undoubted jurisdiction, the licensee should not now be heard to say that the justice court had no jurisdiction to accept his plea of guilty and receive his fine.

This problem may explain why the licensee has preferred not to call our attention to the contents of the motion to dismiss. In his motion for rehearing, he reaffirms his argument concerning two inconsistent judgments, and he criticizes as speculative, as does the dissenting opinion, our suggestion that the dismissal and plea of guilty may have been the result of an arrangement between him and the prosecutor. The licensee asserts: “No factual basis for such speculation exists. The summary judgment proof shows only that two inconsistent judgments were rendered in the same cause on the same day in different courts.” Thus, in effect, the licensee disclaims reliance on the motion to dismiss as record evidence supporting his attack on the jurisdiction of the justice court.

This disclaimer is understandable in view of the language of the motion to dismiss, which, in our opinion, raises an inference going well beyond the point of speculation that there was, indeed, an arrangement between him and the prosecutor. It recites that the cause has been “remanded back to the Justice Court, and such fine as was imposed upon defendant, has been paid.” The notice of conviction recites a plea of guilty on February 4,1975. In view of this evidence from the record, it is most unlikely that the licensee would have pleaded guilty and paid a fine in the justice court if the prosecutor had not agreed to dismiss the appeal in the county court.

Since the licensee, for whatever reason, has chosen not to call our attention to the motion to dismiss, we do not think that we should raise it- on our own motion and consider it as record evidence for a collateral attack on the judgment. So to consider it would be to reject any counterarguments before the Department has the opportunity to present them. One possible counterargument, which would seem persuasive, is that a party cannot treat a judgment as both valid and invalid. Thus, it has been held that a party cannot invoke the jurisdiction of an appellate court and then take the position in a subsequent proceeding that the court had no jurisdiction because the judgment appealed from was not final. Lobit v. Crouch, 323 S.W.2d 618, 620 (Tex.Civ.App.-Austin 1959, writ ref’d n. r. e.). This holding is an application of the general rule that a party is not allowed in a subsequent judicial proceeding to take a position in conflict with a position taken by him in a previous judicial proceeding, where the latter position is to the prejudice of the adverse party. Smith v. Chipley, 118 Tex. 415, 16 S.W.2d 269, 276 (1929). To permit a party to invoke the exercise of a jurisdiction within the general powers of a court and then to reverse its orders upon the ground that it had no jurisdiction would be to allow one to trifle with the courts. Spence v. State National Bank, 5 S.W.2d 754, 756 (Tex.Com.App.1928, jdgmt adopted).

Although these cases are not exactly, in point on the facts, the principles announced present a serious obstacle to any contention by the licensee that the State’s motion to dismiss constituted record evidence that the justice court had no jurisdiction when it rendered the judgment of conviction on February 4,1975. That judgment, notwithstanding the asserted lack of jurisdiction, when considered with his plea of guilty and his payment of the fine, would surely bar any further prosecution on the same charge. See Davis v. State, 37 Tex.Cr.R. 359, 39 S.W. 937, 938 (1897). We conclude that the licensee’s acceptance of the benefits of that judgment now prevents him from attacking it in this collateral proceeding.

We do not hold that a prosecution pending on appeal in the county court may be “remanded” to the justice court so as to authorize the justice court to carry out its original judgment. Neither do we decide that the justice court has jurisdiction to try a defendant again for an offense when an appeal from a conviction for the same offense is still pending in the county court. We recognize that jurisdiction cannot be conferred by agreement. We do not agree, however, that a defendant may obtain a dismissal of an appeal in the county court on an understanding or representation that he has pleaded guilty and paid his fine in the justice court, or that he will do so, and then assert in a subsequent license-suspension proceeding that the justice court had no jurisdiction to convict him. We conclude that he should not be permitted to trifle with the judicial system in this manner.

In this respect, we believe that the reasoning of the supreme court in Texas Department of Public Safety v. Richardson, 384 S.W.2d 128,130 (Tex.1964), is applicable here. There, the supreme court held that a notice of conviction from the justice court cannot be impeached collaterally by an affidavit of the defendant’s lawyer that defendant was not present in court when the judgment was rendered. Justice Norvell, writing for the supreme court, pointed out that it would be anomalous to say that an offender who fails to keep his promise to appear for trial of a misdemeanor, but sends in to the court the amount fixed for the offense before the time he promised to appear, thereby places himself beyond control of the administrative authorities in a subsequent license-suspension proceeding. The supreme court held, accordingly, that if the offender wishes to attack an irregular judgment not wholly void upon its record, such an attack must be made in the court which rendered the judgment or which has authority to review it, and not by collaterally attacking such a conviction in a subsequent civil proceeding to suspend his license. In the present case, even if the motion to dismiss should be considered as record evidence, as distinguished from the affidavit of the lawyer relied on in Richardson, we conclude that the licensee’s evident participation in the disposition of the appeal by pleading guilty and paying his fine in the justice court prevents him from relying on the motion to dismiss in the collateral proceeding, and since he does not rely on it, neither should this court consider it in determining whether he has shown that the justice court had no jurisdiction.

Motion overruled.

AKIN, Justice,

dissenting.

I cannot agree that the Department of Public Safety established by summary-judgment evidence that licensee had been convicted of four moving traffic violations within one year as required by Tex.Rev.Civ. Stat.Ann. art. 6687b § 22(b)(4) (Vernon 1969). I would, therefore, grant rehearing and affirm the judgment of the trial court. The Department’s summary-judgment evidence consisted of notices of conviction filed by the clerk of the justice court with the Department. Since licensee admits three of the convictions, the crucial issue is whether the “Notice of Final Conviction” dated February 4, 1975, in cause number 21751 represents a valid judgment of conviction by the justice court.

The disputed conviction is based on a speeding violation that is alleged to have occurred on November 12, 1974. Attached to the Department’s motion for summary judgment is an abstract of the judgment of conviction, styled “Notice of Final Conviction,” stating that the licensee was convicted of this offense on February 4, 1975, by a justice of the peace of Mitchell County, Texas, on a plea of guilty. The crucial issue is whether this notice of final conviction of February 4, in cause number 21751, represents a valid judgment of conviction by the justice court. In attacking the validity of the notice, the appellee-licensee produced as summary-judgment evidence the complaint filed November 13, 1974, a judgment reciting a finding of guilty in cause number 21751 certified by the justice of the peace on January 21, 1975, a timely appeal bond, and a motion by the county attorney and an order of dismissal by the county court dated February 4, 1975, the same day recited in the notice of conviction. The motion and order read:

MOTION TO DISMISS
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW the State by her County Attorney and asks the Court to dismiss the . above entitled criminal action for the following reason, to-wit: this cause has been remanded back to the Justice Court, such fine as was imposed upon defendant, has been paid.
WHEREFORE, premises considered, the State prays that this cause be dismissed for the reason above stated.
s/ Perry Barber
Perry Barber, County Attorney
ORDER
On this the 4th day of February, 1975, came on to be considered the above Motion of the State, and the Court being of the opinion that the same should be dismissed, it is, therefore, ORDERED that this cause be, and the same is hereby dismissed from the docket of this Court.
_s/ Bill F. Carter_
Bill F. Carter, County Judge
[emphasis added]

This motion and order show affirmatively, as licensee vigorously asserts, that the justice court lacked jurisdiction when it found the licensee guilty of the offense of speeding on February 4, 1975, as shown by the Department’s notice of conviction in cause number 21751. Although a notice of conviction is prima facie evidence of a judgment of conviction for the offense recited in the notice, Texas Department of Public Safety v. Richardson, 384 S.W.2d 128, 130 (Tex.1964), the notice may be rebutted if the invalidity of the underlying judgment appears in the record of that case. The record cannot merely contain “seeds of infirmity,” Texas Department of Public Safety v. Casselman, 417 S.W.2d 146, 148 (Tex.1967); the invalidity must appear on the face of the record. Richardson at 130-31; see Stewart v. Anderson, 70 Tex. 588, 8 S.W. 295 (1888). Cf. Crowe v. Texas Department of Public Safety, 406 S.W.2d 201, 203 (Tex.1966); Department of Public Safety v. Guleke, 366 S.W.2d 662, 664 (Tex.Civ.App.—Amarillo 1963, no writ) cited with approval in Texas Department of Public Safety v. Miller, 386 S.W.2d 760, 764 (Tex. 1964) [rebuttal of notices of conviction by showing that there were no underlying judgments of conviction]. I conclude that since the record of the proceedings in the county court, including the motion and the order of dismissal, are part of the record of the entire proceeding against licensee for this traffic violation, this evidence may be looked to in order to determine if the judgment of conviction is valid. When licensee appealed the justice court’s January 21 conviction to the county court, the justice court lost all jurisdiction of the cause. Ex parte Hoard, 63 Tex.Cr.R. 519, 140 S.W. 449 (1911); McNamara v. Druse, 33 Tex.Cr.R. 363, 26 S.W. 506 (1894); Hall v. McKee, 179 S.W.2d 590 (Tex.Civ.App.-Fort Worth 1944, no writ); Knight v. Texas Department of Public Safety, 361 S.W.2d 620 (Tex. Civ.App.—Amarillo 1962, no writ). The record with respect to this violation shows on its face that the judgment of conviction rendered by the justice court on February 4, on which the notice of conviction of that date is based, is void because it was rendered when the county court had exclusive jurisdiction.

The majority opinion speculates that the case may have been settled under an arrangement between the licensee and the county attorney. No factual basis exists in this record for such speculation. To the contrary, the record shows that the justice court found the licensee guilty before the county court entered its order of dismissal and lacked, therefore, the jurisdiction to do so. Thus, it was void. Indeed, the very basis of the dismissal in the county court was because “this cause has been remanded back to the justice court, and such fine as was imposed upon the defendant, has been paid.”

In my opinion, this record conclusively shows that the notice of conviction was rebutted by the motion and order of dismissal in the county court. Richardson at 131. Since the notice of such judgment has been contradicted so as to destroy its value as prima facie evidence of an underlying judgment of conviction by the justice court, there is no summary-judgment evidence of an underlying judgment. Therefore, I would affirm the judgment of the trial court.

The majority’s opinion on rehearing indicates that the basis of my dissent is a theory not advocated by the licensee. However, as I read licensee’s motion for rehearing, the very heart of it is the lack of jurisdiction of the justice court to convict licensee of speeding and the error of this court in giving effect to a notice of conviction of a void judgment. Indeed, he states:

In the present case any prima facie presumptions otherwise carried by the notice of conviction dated February 4, 1975, were rebutted by the record of the Mitchell County proceeding which shows that on the same day and for the same offense the County Court entered an Order dismissing that cause.

Neither am I persuaded by the majority’s estoppel theory that would prevent the licensee from attacking the void notice of conviction. In support of its position, the majority cites Spence v. State National Bank, 5 S.W.2d 754, 756 (Tex.Com.App. 1928, jdgmt adopted) for the proposition that to permit one to invoke the exercise of the jurisdiction of a court and then to reverse its orders upon the ground that it had no jurisdiction would be to allow one to trifle with the courts. Although I agree with this principle, it is specious to say that the licensee, rather than the state, invoked the jurisdiction of the justice court to find him guilty of a traffic violation. Whether licensee paid a fine or pleaded guilty is immaterial if he did so when the justice court lacked jurisdiction. Consequently, the judgment of the trial court should be affirmed.

      . Spelling conforms to official Texas Reports rather than Southwestern Reporter.


author: PER CURIAM. GUITTARD, Chief Justice.

text:
    Mike HAMRAH, Appellant, v. Fred P. HAMRAH, Appellee.
    No. 19104.
    Court of Civil Appeals of Texas, Dallas.
    Jan. 11, 1977.
    Rehearing Denied Feb. 22, 1977.

      W. W. Mitchell, III, Berman, Fichtner & Mitchell, Dallas, for appellant.
    Christopher M. Weil, Weil, Craig & Fisch-man, Dallas, for appellee.
   PER CURIAM.

On our own motion, we raise the jurisdictional question that the transcript was not filed within the sixty days required by Tex. R.Civ.P. 386. This question arises from the circumstance that the judge signed a draft of judgment on May 6, 1976, and then signed another on June 30,1976, designated “nunc pro tunc.” Appellant appeals from the second judgment, and his transcript was not timely if his time began running from the original judgment. We hold that we have no jurisdiction because the second judgment made no material change in the original judgment and, therefore, did not affect the time for appeal.

Appellant timely filed his original motion for new trial on May 12, 1976, and an amended motion for new trial on June 1. On June 30 the judge signed another draft of judgment which recited that it was entered nunc pro tunc in lieu of the May 6 judgment. On July 9 appellant filed another document entitled “motion for new trial.” On July 21 the judge signed an order purporting to overrule appellant’s July 9 motion for new trial. Appellant filed his cost bond on August 12, but did not file his transcript in this court until September 20.

If the June 30 nunc pro tunc order materially changed the May 6 judgment, then appellant was authorized to file another motion for new trial on July 9, and the sixty-day period for filing appellant’s transcript began to run from July 21, when the judge signed the order overruling the July 9 motion for new trial. Tex.R.Civ. P. 306b. But if the June 30 order did not change the May 6 judgment, the time for filing the transcript began to run from July 15, forty-five days after the amended motion for new trial was filed on June 1, because the amended motion was then overruled by operation of law under Tex.R.Civ. P. 329b(4), and the trial judge had no authority after that date to enlarge the time for taking an appeal. Tex.R.Civ. P. 5.

The only difference between the May 6 judgment and the June 30 nunc pro tunc judgment is in the wording of the award of attorney’s fees. That portion of the May 6 order reads as follows:

ORDERED, ADJUDGED and DECREED that FRED P. HAMRAH further have and recover of and from MIKE HAMRAH the sum of $3,500 as a reasonable fee for the services of his attorney in the District Court through overruling of a motion for new trial, if any; that Defendant further have and recover of and from said Plaintiff the sum of $1,000 in the event that an appeal is prosecuted from the judgment herein rendered to a Court of Civil Appeals if such judgment is affirmed by said Court, in whole or in part; and that Defendant further have and recover of and from said Plaintiff the sum of $750 in the event that an application for writ of error is prosecuted by Plaintiff from a judgment of the Court of Civil Appeals, and such judgment shall be affirmed by the Supreme Court, in whole or in part, or said Court shall refuse such application for writ of error, or if Defendant shall prosecute an application for writ of error from a judgment of the Court of Civil Appeals, and such application be granted and the judgment of this Court reinstated and affirmed; .

The pertinent portion of the June 30 order reads as follows:

ORDERED, ADJUDGED and DECREED that FRED P. HAMRAH further have and recover of and from MIKE HAMRAH the sum of $5,250 as attorney’s fees, and it is the further judgment of this Court that if MIKE HAMRAH does not appeal this cause, the said judgment should be credited with $1,750, leaving recovery for attorney’s fees herein in the sum of $3,500. It is further the judgment of the Court that if MIKE HAM-RAH appeals this cause to the Court of Civil Appeals and said cause is not carried by appeal or writ of error to the Supreme Court of Texas, that its judgment be credited with $750 on attorney’s fees, leaving recovery for attorney’s fees herein in the sum of $4,500; .

The only difference between these two judgments is that the May 6 order awards additional sums to the defendant for attorney’s fees if this case is appealed to the court of civil appeals and the supreme court, whereas the nunc pro tunc order first fixes a total award which is the sum of the attorney’s fees conditionally awarded in the May 6 judgment and then adds a proviso which allows certain credits in the absence of appellate review. The sums awarded are the same in both orders; the effect of both orders is likewise the same. International Security Life Insurance Co. v. Spray, 468 S.W.2d 347, 349-50 (Tex.1971). Consequently, the second judgment cannot be regarded as a change or correction of the first judgment and, therefore, cannot be made the basis for an appeal. Talmadge Tinsley Co., Inc. v. Kerr, 541 S.W.2d 207, 208-09 (Tex.Civ.App.—Dallas 1976, writ ref’d n.r.e.).

The fact that the clerk of this court received and “filed” the transcript does not confer jurisdiction of the appeal upon this court if we do not have jurisdiction under the Rules of Civil Procedure. Cf. Blackman v. Housing Authority of City of Dallas, 152 Tex. 21, 254 S.W.2d 103, 104 (1953) (dictum). Thus, our jurisdiction is limited to dismissing this appeal or affirming on certificate under Tex.R.Civ. P. 387. Gallagher v. Schlundt, 452 S.W.2d 529, 530 (Tex.Civ.App.—San Antonio 1970, writ ref’d); Alamo Federal Credit Union v. Celedon, 415 S.W.2d 717, 718 (Tex.Civ.App.-San Antonio 1967, writ ref’d n.r.e.).

Accordingly, the appeal will be dismissed unless appellee files a motion to affirm on certificate within ten days from this date.

ON MOTION FOR REHEARING

GUITTARD, Chief Justice.

In his motion for rehearing appellant relies chiefly on International Security Life Insurance Company v. Russell, 473 S.W.2d 653 (Tex.Civ.App.—El Paso 1971, no writ), to support his contention that there is a material difference between the original judgment, which provides for an attorney’s fee to be added to the judgment in the event of appeal, and the judgment nunc pro tunc, which provides that in the event no appeal is taken, the amount of the attorney’s fee for the appeal should be credited against the total fee allowed. We disagree with the Russell opinion because, in our view, it misconstrues the opinion of the supreme court in International Security Life Insurance Co. v. Spray, 468 S.W.2d 347 (Tex.1971). As we understand Spray, it holds that there is no material difference between these two forms of judgment and expressly overrules previous decisions to the contrary. Our interpretation of Spray is in accordance with that expressed in Seureau v. Mudd, 515 S.W.2d 746, 749 (Tex.Civ.App.—Houston [14th Dist.] 1974, writ ref’d n.r. e.).

Appellant further contends that under Tex.R.Civ. P. 306b, the time for appeal runs from the date of signing the judgment nunc pro tunc, which need not make a material change in the original judgment unless the purpose is to extend the time for appeal contrary to Tex.R.Civ. P. 5. We are not concerned with the purpose of the order, but with its effect. We adhere to our holding that if the only effect of an order nunc pro tunc would be to enlarge the time for filing a motion for new trial or appeal bond, then it has no effect, and the appeal must be taken from the original order. Support for this holding may be found in Rodriguez v. Valdez, 521 S.W.2d 668, 669 (Tex.Civ.App.—San Antonio 1975, writ ref’d n.r.e.); and see Anderson v. Casebolt, 493 S.W.2d 509, 510 (Tex.1973). In case of doubt, the appellant can perfect an appeal from both orders. The contrary holding would permit Rule 5 to be easily circumvented by nunc pro tunc orders making immaterial changes of wording that might not appear to have been made solely for the purpose of extending the time for appeal. See Reese v. Piperi, 534 S.W.2d 329, 331 (Tex.1976).

Appellant also calls our attention to Dikeman v. Snell, 490 S.W.2d 183, 186 (Tex.1973), in which the supreme court issued a writ of mandamus setting aside as void a judgment nunc pro tunc on the ground that the change which it purported to make in the original judgment was a change of substance in the judgment as rendered rather than the correction of a clerical mistake. The court observed that in some cases relief from such invalid orders might be more easily obtained by an appeal. We do not understand this observation to mean that an appeal from a void nunc pro tunc judgment affords the appellant an opportunity to bring forward grounds for attack upon the original judgment. Under Tex.R.Civ. P. 306b, the right of appeal dates from the signing of a judgment nunc pro tunc, but if the judgment nunc pro tunc is void, an appeal from it would only establish its voidness and would leave the original judgment in effect, as did the writ of mandamus in Dikeman.

In this connection we note that one of the points in appellant’s brief raises the contention that the judgment nunc pro tunc was erroneous under Tex.R.Civ. P. 316 and 317 because it “did not correct any mistake in the record of any judgment or decree.” Appellant further complains that this judgment “does not qualify as a nunc pro tunc judgment” because it “does not disclose the ground on which the court acted.” If appellant is correct in these contentions, his appeal from this judgment nunc pro tunc does not provide an opportunity to review the original judgment. He might be entitled to have the judgment nunc pro tunc reversed and vacated, leaving the original judgment in force, but that relief would be of no consequence, since as we have held, the judgment nunc pro tunc makes no material change in the original judgment.

Appellant also moves for oral argument in support of his motion for rehearing, but we conclude that no useful purpose could be served by such argument because appellant’s, position has been adequately presented in his motion for rehearing.

Motions overruled.


author: COLEMAN, Chief Justice.

text:
    Charles Glenn JOHNSON, Appellant, v. Carol Lynn Johnson PARISH, Appellee.
    No. 16823.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Jan. 13, 1977.

      Urban, Coolidge, Pennington & Scott, Michael D. Stewart, Houston, for appellant.
    Mrs. Joe Kegans, Houston, for appellee.
   COLEMAN, Chief Justice.

This is an appeal from a temporary custody order entered in a proceeding to modify a previous permanent custody order. The trial court issued an order removing Charles Johnson as managing conservator and naming Carol Johnson Parish temporary managing conservator of the three minor children born of the marriage of those parties.

Carol Parish, the appellee, contends that this court lacks jurisdiction of this cause because it is a non-appealable temporary order. We agree.

Section 14.08 of the Family Code provides that the portion of a decree that provides for the appointment of a conservator may be modified only by the filing of a motion in the court having jurisdiction of the suit affecting the parent-child relationship. It provides in paragraph (b) that each party whose rights may be affected by the motion is entitled to at least thirty days’ notice of the hearing on the motion to modify. In paragraph (c) the court is authorized, after a hearing, to modify an order or portion of a decree that designates a managing conservator if the circumstances of the child or parent have so materially and substantially changed since the entry of the order or decree to be modified that the retention of the present managing conservator would be injurious to the welfare of the child and that the appointment of a new managing conservator would be a positive improvement for the child.

Section 14, supra, does not specifically authorize the trial court to enter a temporary order changing the managing conservator of a child. The provision for thirty days’ notice of the hearing was not complied with. Carol Parish was appointed temporary managing conservator only. This indicates that the trial court anticipated a further hearing before the question of the permanent removal of Charles Johnson as managing conservator, and the appointment of a managing conservator in his stead, would be finally determined. The order is interlocutory.

Section 11.19, Tex. Family Code Ann., provides for appeals from judgments entered in suits affecting the parent-child relationship as in civil cases generally where allowed under Section 11.19 or other provisions of law. There is nothing in the subsequent provisions of said section which requires a holding that appeals from interlocutory orders are contemplated.

The temporary order entered by the trial court in this case must be sustained by the provisions of Section 11.11, Tex. Family Code Ann., if at all. This section authorizes the court in a suit affecting the parent-child relationship to make “any temporary order for the safety and welfare of the child, including but not limited to an order for the temporary conservatorship of the child.” We conclude that the temporary order entered in this case is authorized by that language of the Family Code, which appears in the section entitled “General Provisions.” Paragraph (b) of this section provides that temporary orders are to be governed by the rules governing temporary restraining orders and temporary injunctions in civil cases generally.

Appellant contends that, since temporary injunctions may be appealed, paragraph (b) of Section 11.11, supra, authorizes an appeal of this order. The word “rules” found in paragraph (b) of said section refers to the official Rules of Civil Procedure promulgated by the Supreme Court of Texas.

Rule 385, Vernon’s Texas Rules Annotated, provides:

“Appeals from interlocutory orders (when allowed by law) may be taken by . . ”

Appeals from temporary injunctions granted by a trial court are allowed by law. Article 2251, Vernon’s Texas Annotated Statutes; Article 4662, supra. Since there is no statute specifically authorizing an appeal from a temporary order entered as authorized by Section 11.11, Texas Family Code Ann., the rule governing appeals from temporary injunctions is not applicable.

In the absence of a statute authorizing an appeal from an interlocutory order, there is no right of appeal. Henderson v. Shell Oil Co., 143 Tex. 142, 182 S.W.2d 994 (1944). Prior to the enactment of the Family Code an order temporarily changing child custody was not appealable since it was neither a final judgment nor injunctive in character. Franklin v. Wolfe, 483 S.W.2d 17 (Tex.Civ.App.—Houston [14th] 1972, no writ); Archer v. Archer, 407 S.W.2d 529 (Tex.Civ.App.—San Antonio 1966, no writ).

It is our opinion that the order from which this appeal is attempted is an interlocutory order from which an appeal has not been specifically authorized by statute. This court lacks jurisdiction to entertain this appeal, and the appeal is ordered dismissed.


author: PER CURIAM.

text:
    SEAWAY PIPELINE, INC., Appellant, v. J. M. SCHWEBEL et ux., Appellees.
    No. 16857.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Jan. 20, 1977.
    Rehearing Denied Feb. 17, 1977.
   PER CURIAM.

Appellants have filed a motion to require the Clerk to file the transcript and statement of facts in this case and appellees have filed a motion to affirm the case on certificate. The question before the court is whether appellants’ failure to timely file a motion for extension of time to file the transcript and statement of facts precludes this court’s consideration of the motion.

Appellants’ amended motion for new trial was overruled by operation of law on September 3, 1976, and the transcript was required to be filed in this court on or before November 2, 1976. The appellants’ failure to timely file the transcript did not require a dismissal of the appeal provided that within fifteen days after the transcript was required to be filed, a motion for extension of time was filed with this court reasonably explaining the failure to timely file the transcript. Rule 21c, Texas Rules of Civil Procedure.

The last day for filing a motion to extend time for filing was November 17, 1976, and the appellants’ motion for extension of time was not filed until November 19, 1976. Thus, the motion for extension of time was not timely filed. Appellants’ motion to direct the Clerk to file the transcript reflects that counsel for appellants suffered a heart attack on November 16,1976, and therefore was not able to prepare the motion for extension of time until the deadline of November 17,1976, had passed. Although this court is sympathetic with the circumstances presented by appellants’ motion and would be inclined to grant the motion for extension had it been timely filed, the requirement for filing the motion for extension of time within the time specified is mandatory and jurisdictional. Cousins v. Brown, 539 S.W.2d 233 (Tex.Civ.App.—Houston [1st] 1976, no writ).

Appellees’ motion for affirmance on certificate contains appropriate certificate of the County Clerk stating the time the appeal was perfected and certifying a copy of the judgment entered by the trial court. The motion for affirmance on certificate has been timely and properly filed, and the judgment of the trial court must be affirmed on certificate against both the appellant and the sureties on the appeal bond. Rule 387, Texas Rules of Civil Procedure.