In re Jay Vineyard--Appeal from 290th Judicial District Court of Bexar County

PER CURIAM

Sitting: Catherine Stone, Justice

Sandee Bryan Marion, Justice

Steven C. Hilbig, Justice

Delivered and Filed: October 31, 2007

PETITION FOR WRIT OF MANDAMUS DENIED IN PART, DISMISSED FOR LACK OF JURISDICTION IN PART

In a mandamus petition filed in this court, Jay Vineyard asks us to compel the trial court to enter a judgment nunc pro tunc to amend the restitution amount ordered in the judgment in the underlying criminal case. A judgment nunc pro tunc may be used only to correct clerical errors in a judgment, not to address other omissions or errors. State v. Bates, 889 S.W.2d 306, 309 (Tex. Crim. App. 1994). A judgment nunc pro tunc ensures that the record reflects what actually occurred when the judgment was entered; it does not permit the readjudication or the reopening of a controversy. Ex parte Dopps, 723 S.W.2d 669, 671 (Tex. Crim. App. 1986); Chaney v. State, 494 S.W.2d 813, 814 n. 1 (Tex. Crim. App. 1973). Furthermore, a judgment nunc pro tunc is improper when it has the effect of making a new or independent order. Smith v. State, 15 S.W.3d 294, 299 (Tex. App.--Dallas 2000, no pet.). Here, Vineyard does not dispute that the judgment reflects the restitution amount actually ordered by the trial court when the judgment was entered. Instead, Vineyard argues the trial court should amend the restitution amount based on documents he submitted to the trial court after the judgment was entered. Because Vineyard essentially seeks to readjudicate the restitution amount, the trial court did not abuse its discretion in refusing to enter a judgment nunc pro tunc. Accordingly, the part of Vineyard's petition directed to the trial court is denied.

Additionally, Vineyard's petition asks us to compel the Texas Board of Pardons and Paroles to return to him all restitution paid in the underlying criminal case. In Texas, a court of appeals is authorized to issue writs of mandamus against a district or a county court judge in its district. See Tex. Gov't Code Ann. 22.221(b)(1) (Vernon 2004). However, a court of appeals is not authorized to issue writs of mandamus against the Board of Pardons and Paroles unless it is necessary to enforce the appellate court's jurisdiction. See Tex. Gov't Code Ann. 22.221(a); In re Parker, No. 04-06-00007-CV, 2006 WL 166570 at *1 (Tex. App.--San Antonio 2006, orig. proceeding). Vineyard does not allege or show that the issuance of a writ against the Board of Pardons and Paroles is necessary to enforce this court's jurisdiction. Accordingly, the part of Vineyard's petition directed to the Board of Pardons and Paroles is dismissed for lack of jurisdiction. PER CURIAM

1. This proceeding arises out of Cause No. 2000-CR-4856, styled State of Texas v. Jay Vineyard, filed in the 290th Judicial District Court, Bexar County, Texas, the Honorable Sharon MacRae presiding.