In re Joseph Clyde Ford

We believe it is necessary to review some of the procedural history of this

proceeding; but first, an overview is helpful to understand where we are going. The

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genesis of the problem started with Ford’s conviction in March, 1992. The judgment for

that conviction is at the heart of this proceeding. The fundamental question is whether

the 1992 judgment was for a third degree or second degree felony. According to Ford,

the difference is significant because the sex offender registration requirements would be

for 10 years if it was a third degree felony, or life if it was a second degree felony.

Moreover, according to Ford, if the offense was a third degree felony, he could not be

subject to prosecution for failing to register as a sex offender after 2002.1

Now we turn to some additional procedural details. There have been three nunc

pro tunc judgments rendered in this case since 1992. Then, most recently, an order was

rendered that purports to vacate the last two of those judgments and revive the first nunc

pro tunc judgment. Specifically, in 2014, 22 years after the entry of the original judgment,

the trial court rendered the first nunc pro tunc judgment. The 2014 judgment purported

to change the offense level from a third degree felony to a second degree felony. In 2016,

the trial court rendered the second nunc pro tunc judgment. The 2016 judgment purports

to change the offense level from a second degree felony back to a third degree felony.

In early 2017, the trial court rendered a third nunc pro tunc judgment which

purports to change a citation of the specific statute Ford was convicted of violating. The

statute cited in the 2016 nunc pro tunc judgment was section 22.11(a)(1) of the Texas Penal

1 Because the exact nature of the sex offender requirements are unnecessary to the resolution of this appeal, we express no opinion as to the accuracy of Ford’s representations.

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Code, sexual assault by contact, which is a second degree felony, notwithstanding that

the judgment recited that the offense level was a third degree felony. The change in the

early 2017 nunc pro tunc judgment was to change the statutory reference to section

22.11(a)(2), sexual assault by exposure, which is consistent with the recitation in the 2016

judgment that the conviction was for a third degree felony.

After the rendition of the third nunc pro tunc judgment, the State of Texas moved

for a reconsideration of the second and third nunc pro tunc judgments.2 In late 2017, the

trial court signed an order which purported to order the second and third nunc pro tunc

judgments “vacated” and breathe new life into the 2014 nunc pro tunc judgment. It is

this late 2017 order that Ford attacks in this proceeding. We specifically note that the trial

court did not sign a fourth nunc pro tunc judgment.

OUR APPELLATE JURISDICTION

Now we must look at some specific dates as necessary to determine whether the

trial court had jurisdiction to render the late 2017 order. The third judgment nunc pro

tunc was signed on January 10, 2017. The State’s motion to reconsider that judgment was

filed on March 6, 2017. A hearing on the State’s motion was set for, and was held on,

April 12, 2017. The trial court’s order that purported to vacate the January 10, 2017 nunc

2 Although titled as a motion for reconsideration, the motion is essentially a motion for “new trial” and will be treated as such. Further, in discussing the timeliness of the actions taken, we will discuss only the time from the date the trial court signed the third nunc pro tunc judgment.



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pro tunc judgment was not signed until October 18, 2017.3

Ford attacks the October 18, 2017 order, in part, because the State waited too long

to complain about the January 10, 2017 judgment. Ford is correct, as far as that argument

takes him, but there remains a plethora of issues that we cannot address in this

proceeding.

That we have jurisdiction to review a modification made in a nunc pro tunc

judgment that is adverse to the appellant has been well-established by Court of Criminal

Appeals’ precedent. Blanton v. State, 369 S.W.3d 894, 904 (Tex. Crim. App. 2012). But the

order the trial court signed in late 2017 is not a nunc pro tunc judgment. The October 18,

2017 order is just that, an order in response to a motion for reconsideration brought to

modify or vacate the trial court’s January 10, 2017 judgment. We do not have a judgment

nunc pro tunc in front of us for review. See Guthrie-Nail v. State, 543 S.W.3d 225, 227 (Tex.

Crim. App. 2018) (Oral ratification of a prior nunc pro tunc judgment is not an appealable

order; trial court must “enter” a new nunc pro tunc judgment which would be

appealable.).

Jurisdiction must be expressly given to the courts of appeals. Ragston v. State, 424

S.W.3d 49, 52 (Tex. Crim. App. 2014). The standard for determining jurisdiction is not

3 There was a letter from the trial court to the parties which announced how the trial court would rule and that he would sign an order to that effect when prepared. This Court has determined that language in the letter indicating a future action to be taken for signature of the ruling makes it clear that the letter is not intended as the formal ruling or judgment of the court. See In re Johnson, No. 10-17-00320-CV, ___ S.W.3d ___, 2018 Tex. App. LEXIS 2071 (Tex. App.—Waco Mar. 21, 2018) (orig. proceeding).

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whether the appeal is precluded by law, but whether the appeal is authorized by law.

Abbott v. State, 271 S.W.3d 694, 696 (Tex. Crim. App. 2008). We have not found any rule

or any statutory or constitutional provision that would authorize Ford’s appeal from the

trial court's October 18, 2017 order. Accordingly, the order is not appealable, and we

have no jurisdiction to entertain Ford’s appeal.

OUR MANDAMUS JURISDICTION

However, Ford has asked that if we determine the October 18, 2017 order to not

be an appealable order, we consider his attack to be a petition for a writ of mandamus.

Following the lead of both the Court of Criminal Appeals and the Texas Supreme Court,

we agree to consider Ford’s appeal as a petition for writ of mandamus. See Houlihan v.

State, 579 S.W.2d 213, 217 (Tex. Crim. App. 1979). See also CMH Homes v. Perez, 340 S.W.3d

444, 453 (Tex. 2011).

Requirements

In criminal cases, the test for determining whether mandamus relief is appropriate

requires the relator to establish both: (1) that there is no adequate remedy at law to

redress the alleged harm; and (2) that the act sought to be compelled is ministerial, not

involving a discretionary or judicial decision. State v. Sixth Judicial Dist. Court of Appeals,

236 S.W.3d 207, 210 (Tex. Crim. App. 2007).

Adequate Remedy

We have already held that we cannot review Ford’s appeal. But is a post

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conviction writ of habeas corpus, through which an applicant seeks relief from a felony

judgment, an adequate remedy at law for Ford? In some cases, a remedy at law may

technically exist but may nevertheless be so uncertain, tedious, burdensome, slow,

inconvenient, inappropriate, or ineffective as to be deemed inadequate. Smith v. Flack,

728 S.W.2d 784, 792 (Tex. Crim. App. 1987). Even if a writ of habeas corpus was

technically a remedy for Ford, the underlying issue here is whether Ford had to register

as a sex offender for 10 years or for life. A writ of habeas corpus would not, at this point

in time, solve Ford’s issue. See TEX. CODE CRIM PROC. ANN. art. 11.07, sec. 1 (West 2015);

In re McCann, 422 S.W.3d 701, 710-11 (Tex. Crim. App. 2013) (noting that relator had no

adequate remedy at law even though he could seek relief from his order for contempt

through a writ of habeas corpus because it would not resolve the underlying issue in the

case). Accordingly, we hold Ford has no adequate remedy at law.

Ministerial Duty

As for the second requirement, an act is “ministerial” if it constitutes a duty clearly

fixed and required by law and is accomplished without the exercise of discretion or

judgment. State ex rel. Cobb v. Godfrey, 739 S.W.2d 47, 49 (Tex. Crim. App. 1987). This

requirement is sometimes discussed in terms of a trial court's authority or jurisdiction. In

re Gambling Devices & Proceeds, 496 S.W.3d 159, 164 (Tex. App.—San Antonio 2016, pet.

ref’d). If a trial judge lacks authority or jurisdiction to take a particular action, the judge

has a ministerial duty to refrain from taking that action, to reject or overrule requests that

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he take such action, and to undo the action if he has already taken it. Id.

The October 18, 2017 order resulted from a motion for reconsideration filed by the

State. Although the order reads like Ford filed the motion, he did not. The motion, in

response to the third judgment nunc pro tunc signed on January 10, 2017, was not filed

until 55 days after the judgment was rendered. A motion, such as the one submitted by

the State in this case, must be filed within 30 days to extend the time in which the trial

court may reconsider the earlier judgment. See TEX. R. APP. P. 21.4. Because the State

filed its motion after the expiration of 30 days, the trial court had no authority to entertain

the motion. Drew v. State, 743 S.W.2d 207, 223 (Tex. Crim. App. 1987).

Moreover, the trial court’s order that purports to vacate the January 10, 2017 nunc

pro tunc judgment was not signed until 281 days had passed, October 18, 2017. By that

time, even if the State had timely filed its motion, any authority the trial court had to

change, modify, vacate, or amend the judgment had long since expired. See TEX. R. APP.

P. 21.8(a), (c); Baker v. State, 956 S.W.2d 19, 25 (Tex. Crim. App. 1997). Thus, because the

trial court had no authority to render an order purporting to vacate its January 10, 2017

judgment after 30 days from the time the judgment was signed, absent a timely motion

for rehearing and only then within 75 days to rule, the trial court has a ministerial duty

to withdraw its October 18, 2017 order purporting to set aside the January 10, 2017

judgment. Ford has met the second criteria for relief by a petition for writ of mandamus.

See State ex rel. Cobb v. Godfrey, 739 S.W.2d 47, 48 (Tex. Crim. App. 1987); In re Gambling

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Devices & Proceeds, 496 S.W.3d 159, 164 (Tex. App.—San Antonio 2016, pet. ref’d).

Accordingly, we conditionally grant the petition for writ of mandamus and order

the trial court to withdraw its October 18, 2017 order. The writ will issue only if the trial court fails to comply with the relief ordered within 14 days from the date of this opinion.