Q: Rule 329b(h): if a judgment is modified , corrected or reformed in any respect, time for appeal shall run when signed
However , if a correction is made pursuant to Rule 316 after expiration of plenary power provided by this rule, which states no complaint shall be heard on appeal that could have been presented in an appeal from original judgment. Rule does not address to substantial change made through a Nunc pro Tunc judgment set for submission by plaintiff within extended plenary power ( emphasis added) due to filing of sworn motion for new trial by defendant which subsequently was overruled by of law but still being within plenary power. Pl advise if a defendant can still complain in an appeal taken from Nunc pro Tunc judgment, present and include errors in original judgment?
Court , abused its discretion, signed a judgment for plaintiff allowing him change judicial errors in original judgment through judgment Nunc pro Tunc within extended plenary power and expressly denied too defendant’s sworn motion for new trial even though it had earlier been overruled by operation of law.
A:
Just because a judgment is entitled a "judgment nunc pro tunc" does not mean that it is in fact a judgment nunc pro tunc. If a new judgment makes a substantive change to the previous judgment, it is not a "nunc pro tunc" despite its title. Within its extended plenary power, a trial court can sign a new amended or modified judgment which makes substantive changes. So, even if it is improperly titled a "Judgment nunc pro tunc," that error standing alone is harmless. You will need to raise different grounds on appeal challenging the substantive changes to the original judgment other than the title being incorrect or the timing if it was signed within the court's plenary power.
In Texas state court, a motion for new trial extends the deadline to file a notice of appeal to 90 days after the date the judgment was signed, regardless of whether it is overruled by operation of law or by a written order. There is an additional 15-day period within which an appellant can file a motion to extend time to file a notice of appeal under the Texas Rules of Appellate Procedure for "good cause." In my experience, any reasonably plausible explanation for the delay--including confusion about whether the second judgment is simply a "nunc pro tunc" or a new amended or modified judgment--is usually sufficient for the court of appeals to grant such a motion to extend.
John J. Kappel agrees with this answer
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