Eve Lynn Baker v. Terry Lee Bizzle

Supreme Court of Texas

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No. 22-0242

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Eve Lynn Baker,

Petitioner

v.

Terry Lee Bizzle,

Respondent

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On Petition for Review from the

Court of Appeals for the Second District of Texas

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JUSTICE YOUNG, joined by Chief Justice Hecht and Justice

Blacklock, concurring.

The Court holds that the trial judge’s email to the parties was not

a “rendition” of a final judgment because a court “renders” judgment only

with a public announcement of the decision, which the email did not do.

I agree and join the Court’s opinion, as well as Justice Lehrmann’s

scholarly concurrence. Both opinions correctly, comprehensively, and

clearly describe current law.

But I am unsatisfied with the status quo—nobody should be

satisfied with it. Our system’s tedious distinction among “rendering”

judgments, “signing” them, and “entering” them was necessary in early

Texas, when judges would travel by horseback to attend court in far-flung

locations. The confusion sown by these distinctions today, however, is

needless and intolerable. Technology now permits judicial actions to be

publicly disseminated with the click of a button and in the flash of an eye.

Our law increasingly and wisely requires courts to provide notice this way,

including in a statute the legislature adopted in its last regular session.

I therefore write separately to suggest that the time has come for

proper changes—whether in procedural rules, statutes, or common law—

to bring much-needed clarity and efficiency to our system of litigation.

Specifically, we should consider banishing from current practice the

distinctions among “rendering,” “signing,” and “entering,” and enshrine

those distinctions into Texas’s storied legal history. This Court could

achieve much of that goal through our rule-making authority, but

legislative consideration of further statutory amendments would be

necessary to truly move beyond our archaic system of judgment-formation.

I

As the Court explains, Texas law distinguishes among the

rendition, signing, and entry of a judgment. Ante at 7–8. These three

actions currently need not and often do not occur simultaneously. As we

observed before the dawn of the current technological era, “[t]he day a

judge signs an order is frequently, perhaps usually, after the time the

judgment is rendered and surely it is before the judgment is entered.”

Burrell v. Cornelius, 570 S.W.2d 382, 384 (Tex. 1978).

This triadic system has always had problems, which remain serious.

But the system developed for reasons rooted in the historic conceptions of

each step’s role. Together, they formed a sensible structure, but one that

I cannot imagine anyone building from scratch today.

2

The most important step was rendition, which the law has long

understood as the “judicial act of the court in pronouncing the sentence of

the law.” Henry Campbell Black, A Treatise on the Law of Judgments 113

(1st ed. 1891). Rendition was the main event—the one that enforceably

adjusted the rights of the parties. It could be either oral or written. See,

e.g., Dunn v. Dunn, 439 S.W.2d 830, 832 (Tex. 1969).

“The entry of a judgment,” by contrast, was (and is) “a ministerial

act, which consists in spreading upon the record a statement of the final

conclusion reached by the court in the matter.” Black, supra, at 113–14;

see also Dunn, 439 S.W.2d at 832 (“[T]he entry of a trial judgment is only

a ministerial act.”). Rendition, therefore, had to go first, and was deemed

conceptually and temporally “independent of the fact of its entry” on the

record. Black, supra, at 115. The ministerial entry of a rendered

judgment was “not essential to the validity of the judgment itself,” and

the court clerk’s failure to enter a judgment “[would] not, as between the

parties, operate to invalidate the judgment.” Id. at 119.

Signing was different still. As our system developed, the

“requirement that a judge shall sign all judgments rendered in his court

[was] merely directory.” Id. at 118. The signature, in other words, served

as a kind of signal that should lead to entry—the signature was merely

“the allowance or permission by the master, prothonotary, or other proper

officer, to the plaintiff or defendant, to have judgment entered in his

favor” by the court clerk. Id. at 117 n.11 (quoting French v. Pease, 10 Kan.

51, 55 (1872)).1

1 But just as the lack of entry itself did not invalidate a judgment as

between the parties, neither did the lack of a signature, because the judgment

3

Historically, therefore, rendition was the central moment. If it was

oral, busy courts, or clerks uninformed of the rendition, might fail to

provide a subsequent signed judgment or enter the rendition into the

record. See, e.g., Bassett v. Mills, 34 S.W. 93, 94 (Tex. 1896) (explaining

that a judgment was not entered in the record “by reason of some

oversight”); Trotti v. Kinnear, 144 S.W. 326, 329 (Tex. Civ. App.—

Galveston 1912, no writ) (explaining that the failure to have the judgment

entered on the record “was due to the inadvertence or negligence of the

clerk”). Signing or entry could be overlooked—perhaps for years. See,

e.g., Burnett v. State, 14 Tex. 455, 456 (1855) (authorizing the court to

direct the clerk to enter on the record a judgment that “was actually made

at a former term and omitted to be entered by the clerk”). A signed and

entered judgment was always desirable, but—and this is what matters

for today’s purposes, and why I have belabored the point—those steps

had “force and effect . . . whether it is ever signed by the judge or not.” Black,

supra, at 119. A signed judgment is not necessary for a judgment to bind the

parties, as this Court has held and as lower courts occasionally continue to

observe. See, e.g., Dunn, 439 S.W.2d at 832–33; In re Marriage of Martz, No. 09-

21-00048-CV, 2022 WL 2251731, at *5 (Tex. App.—Beaumont June 23, 2022,

pet. denied) (citing Dunn for the proposition that a rendered judgment finally

settles the parties’ rights and is not affected by further proceedings). In practice,

however, signed judgments are required, because without them, many other

steps in the litigation process are impossible. See, e.g., Tex. R. App. P. 26.1

(requiring a party to file a notice of appeal within 30 days after a judgment is

signed); Tex. R. App. P. 4.2(c) (requiring judges to sign written orders finding

when a party first received notice or acquired actual knowledge that a judgment

was signed). Because of the impairment of parties’ rights, a court that refuses

to sign a judgment may become the proper target of a mandamus proceeding.

See, e.g., In re Pete, 607 S.W.3d 481, 483 (Tex. App.—Houston [14th Dist.] 2020,

orig. proceeding) (conditionally granting mandamus relief requiring a court to

sign a written order on a party’s motion because “the act of committing the

judgment or order to writing and signing it is a ministerial act”).

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were not needed or expected at the same time as the court’s rendition of

judgment.

It may seem as though, even long ago, nothing justified dividing

the stages of forming a court’s judgment—a trifurcation, one might even

say—but the opposite is true. As I see it, the system developed because

of its practical benefits. Sometimes, judgments could not be quickly

reduced to writing for public consumption, requiring delays between a

judgment’s rendition and its subsequent entry on the record. Litigants

also benefited from the system—they could proceed as if bound by a final

judgment without needing to wait for a written order to memorialize it.

The system also allowed judges to decide cases quickly, leaving it

to clerks to enter their judgments while the judges traveled to other towns

to decide cases. Such a scheme was especially helpful in early Texas,

when a small number of judges “handled crowded dockets . . . traveling

their multicounty circuits twice a year to hear daunting numbers of

cases.” James L. Haley, The Texas Supreme Court: A Narrative History,

1836-1986, at 33 (2013). In the days of the Republic, the justices of this

Court were the district judges, plus a chief justice. Michael Ariens, Lone

Star Law: A Legal History of Texas 201 (2011). Since the Supreme Court

could not meet without the presence of a majority of the district judges,

id., a system that permitted their quick movement throughout Texas

was important.

Historical roots like that one—and many others—illustrate why

it often was essential for the key step of rendition to be distinct. But

that does not mean that entry of the judgment was ever unimportant.

For example, a court’s entry of judgment would “furnish an enduring

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memorial and incontestable evidence of the judgment, and . . . fix its

date for purposes of . . . creating a lien.” Black, supra, at 119. The entry

of judgment, in other words, was historically understood as the effective

date of notice to non-parties of the court’s judgment.

Having a judgment properly appear in the record was also

essential to establish a court’s appellate jurisdiction. Regardless of

when a judgment was rendered, if it was not entered into the record

before a party appealed, courts would dismiss the appeal for lack of

jurisdiction. See, e.g., Scott v. Burton, 6 Tex. 322, 322 (1851) (dismissing

an appeal from a judgment that was not entered on the record); Simpson

v. Bennett, 42 Tex. 241, 241 (1874) (holding that “there [was] no final

judgment” because “the record shows no final disposition of this case”

and dismissing the appeal for lack of jurisdiction); Mignon v. Brinson,

11 S.W. 903, 904 (Tex. 1889) (dismissing a case for lack of jurisdiction

because “an appeal will lie from the judgment entered”).

Over time, the date a judgment was signed also grew in

importance. Because renditions of judgment were not required to be in

writing, they often were not written down for entry into the record, which

made it difficult for parties to calculate procedural timelines. 2 For

2 In part to avoid such problems, our rules of procedure—nearly from

their birth—emphasized the date a judgment was signed to “insure [the

judgment’s] appearance of record,” Official Amendments to Texas Rules of

Practice and Procedure in Civil Cases, 8 Tex. B.J. 532, 534 (1945) (Rule 306a),

and thus “enable the appellant to ascertain more definitely when the time to

perfect an appeal begins to run,” Tentative Amendments to Rules of Civil

Procedure, 8 Tex. B.J. 405, 408 (1945); see also Rogers v. Peeler, 271 S.W.3d 372,

376–77 (Tex. App.—Texarkana 2008, pet. denied) (citing Texas Rule of Appellate

Procedure 26.1 and Texas Rule of Civil Procedure 329b when noting that “[t]he

importance of the date the written judgment is signed is to provide certainty

in calculating procedural timetables”).

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example, an early amendment to Rule 306a directed judges, attorneys,

and clerks “to use their efforts to cause all judgments, decisions, and

orders . . . to be reduced to writing and signed by the trial judge and the

date of signing stated therein,” but continued to acknowledge that the

“absence of any such showing shall not invalidate any judgment or order.”

Official Amendments to Texas Rules of Practice and Procedure in Civil

Cases, 8 Tex. B.J. 532, 533 (1945). A later amendment to Rule 306a

“eliminate[d] the use of the term ‘rendition of judgment,’” Rules of Civil

Procedure: New Amendments, 43 Tex. B.J. 767, 778 (1980), to make

abundantly clear that “[t]he date a judgment or order [was] signed” was

what courts must use to “determine the beginning of the periods

prescribed by these rules.” Id. at 775 (emphasis added).3

Our law has also consciously reduced its emphasis on rendition of

judgment to limit undesirable ambiguity. When parties get a rendition

unaccompanied by other indicia of a judgment, they often have more

questions than answers. Appearances can be deceiving. To be a binding

rendition of judgment, for example, the oral pronouncement must

“dispose[] of all issues between the two parties.” State v. Naylor, 466

S.W.3d 783, 789 (Tex. 2015). Otherwise, it is not a rendition at all—

what seems like it would bind the parties in fact will not. And, as today’s

case reflects, a purported rendition of judgment will not qualify as a

3 And as lawyers well know, today’s rules trigger a host of vital deadlines

or consequences based not on when judges render a judgment but when they

sign it (or, sometimes, when that judgment is entered). See, e.g., Tex. R. App. P.

26.1 (making notice of appeal due within 30 days after a judgment is signed);

Tex. R. Civ. P. 510.8(b) (requiring justice courts, in judgments for a plaintiff in

an eviction case, to render judgment “for possession of the premises, costs,

delinquent rent as of the date of entry of judgment, if any, and attorney fees if

recoverable by law”).

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rendition if it is not publicly announced. See Garza v. Tex. Alcoholic

Beverage Comm’n, 89 S.W.3d 1, 6 (Tex. 2002) (“[A] judgment is rendered

when the decision is officially announced orally in open court, by

memorandum filed with the clerk, or otherwise announced publicly.”).

Likewise, to count as a rendition, the trial court must “indicate[] its intent

to render immediate judgment,” and do so with clarity. Naylor, 466

S.W.3d at 789 (emphasis added). So if the court’s pronouncement, even

if public, does not “clearly indicate that [it] intended to render judgment,”

it simply fails to be a rendition of judgment that binds the parties. S & A

Rest. Corp. v. Leal, 892 S.W.2d 855, 858 (Tex. 1995) (emphasis added).

Parties can hardly be faulted for worrying about whether

something that looks like a rendition is clear enough, or public enough, or

complete enough, to be a rendition. They should worry about it, because

when a court defectively renders judgment, it can leave the parties in

limbo, or worse. For example, if a court (for any of the reasons listed

above, or more) defectively renders judgment declaring the parties

divorced, the parties cannot know whether they are actually divorced.

The same is true, of course, for other steps. When a court fails to sign a

judgment or appealable order—or signs one without the parties knowing

about it, see, e.g., In re Whataburger Rest., 645 S.W.3d. 188, 192–93 (Tex.

2022)—it may inject risk and uncertainty when parties attempt to

calculate and abide by the relevant timelines for post-judgment motions

and the filing of appeals.

In so many ways, therefore, our State’s archaic system of

judgment formation can create serious problems. The problems

transcend substantive ambiguity (“am I divorced, or not?”) because a

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defect in one step or another can pose jurisdictional consequences, as in

Whataburger. See id. at 193–94 (mandamus relief required where

appellate jurisdiction was not timely invoked due to the failure to notify

parties of signed order). Circumstances like these can leave parties (and

courts) to question whether a court even has jurisdiction to decide their

case at all. See, e.g., Garza, 89 S.W.3d at 2 (classifying the appeal as

interlocutory and “dismissing the appeal for want of jurisdiction” because

“the district court . . . never signed a judgment affirming the [challenged]

administrative decision”).

Problems like these waste the appellate courts’ judicial resources,

expand costs to the parties by thousands of dollars, prolong litigation by

months or years, and potentially deprive citizens of their appellate rights

altogether. Such a problem attributable to our system of judgment

formation always presents a great and terrible irony—after all, in early

Texas, the division of judgments facilitated efficient justice. Imagine, for

example, if the law would not resolve even simple disputes for parties in

remote areas until they waited for the judge to travel back to the city,

issue written orders, give them to the clerk, and then send notification

that all of this had happened—with the parties bound only then. What

was meant for good can, as circumstances evolve, turn out for ill.

II

Our divided system of judgment formation can do real harm, in

other words. The question for today is whether the triad still provides

enough value to compensate for the harm. I doubt it. True, binding

parties at the moment of rendition without requiring a simultaneous

written order still has its benefits, especially where reducing a complex

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judgment to writing may take time. But this step usually can be

handled expeditiously, and I doubt that the crutch of differentiating

among “rendering,” “signing,” and “entering” a judgment is truly

indispensable in any case. The one we decide today is one of many in

which the current system engenders more confusion than clarity.

Nor is my observation today particularly novel. In 1976, when

electronic filing or video conferencing were science fiction at best, Justice

Reavley remarked for the Court that “[t]he opportunities for error and

confusion may be minimized if judgments will be rendered only in writing

and signed by the trial judge after careful examination.” Reese v. Piperi,

534 S.W.2d 329, 330 (Tex. 1976). In other words, our judicial system

should take every opportunity to extirpate rather than fertilize confusion.

Forty-eight years later, previously unimaginable information

technology has created new opportunities for fostering clarity. Courts can

simultaneously render, sign, and enter judgments on the record. Doing

so electronically guarantees that it is done publicly. Given these new

abilities, there is no excuse for not eliminating the “error and confusion,”

id., that inhere in our current system. The judiciary and the legislature

should consider taking up Justice Reavley’s challenge. Better late than

later yet.

Had we done so already, problems like the one we resolve today

would not arise in the first place. Fixing the problem, however, is not

something that can be done in a contested case like this one that

generates a judicial opinion. “[W]e do not exercise our rulemaking

authority via judicial opinion.” In re Meador, 968 S.W.2d 346, 351 (Tex.

1998). Instead, it will likely require a variety of revisions to the law

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governing Texas courts, both in our rules and in various statutes. As I

noted above, many current rules and statutes are tied to a court’s taking

one action or another.4 Some are of extreme importance,5 others are

relatively mundane,6 but all of them would be better if we had a single

moment of general applicability: the moment at which a court’s decision

is electronically added to the public docket. We can address some of this

in our administrative capacity after consultation with the Supreme Court

Advisory Committee, including the participation of other interested

parties. And the legislature can do so after consideration in its normal

4 So many of the difficult cases arise in the family-law context because

the Family Code contains many provisions that rely on this distinction. See, e.g.,

Tex. Fam. Code § 263.4011 (requiring courts to render a final order within 90

days after the commencement of a suit affecting parent-child relationships); id.

§ 101.026 (defining “render” as “the pronouncement by a judge of the court’s

ruling on a matter” and providing that a court may render judgment by, among

other things, a notation “on the court’s docket sheet or by a separate written

instrument”); id. § 85.041 (requiring courts that have rendered protective orders

to give “to the respondent a copy of the order, reduced to writing and signed by

the judge or master”).

5 See, e.g., Tex. R. Civ. P. 306a(1) (providing that the court’s plenary

power and the deadline for parties to file post-judgment motions stems from the

date the judgment was signed); Tex. R. App. P. 35.1 (requiring parties to file an

appellate record within 60 days after a judgment is signed); Tex. R. Civ. P. 150

(providing that in cases where a judgment has been rendered, the suit may

proceed to judgment if the cause of action survives a party’s death).

6 See, e.g., Tex. R. App. P. 24.2(a)(2)(b) (providing that, in cases where a

judgment is for recovery of an interest in personal property, a judgment debtor

must post a bond that is more than the value of the property interest on the date

when the court rendered judgment); Tex. R. Civ. P. 90 (requiring parties in

nonjury cases to specifically point out pleading defects in writing before the

judgment is signed); Tex. Water Code § 55.509 (detailing how courts render

judgments in validation suits and providing that the judgment has res judicata

effect only when entered); Tex. Civ. Prac. & Rem. Code § 51.013 (providing that

writs of error, when available, may be taken at any time within six months after

a final judgment is rendered).

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process, which would, of course, allow it to either make a wholesale

reform or to do so in stages, if it chooses to act at all.7

Similar changes—or at least complementary changes—to what I

suggest today have recently been made. In its most recent legislative

session, the legislature passed and Governor Abbott signed a bill that

requires trial and appellate courts to “deliver through the electronic filing

system . . . to all parties in each case in which the use of the electronic

filing system is required or authorized all court orders the court enters

for the case.” Act of May 29, 2023, 88th Leg., R.S., ch. 861, § 18.003,

§ 80.002 (codified at Tex. Gov’t Code § 80.002(b)). This Court recently

enacted amendments to the Texas Rules of Civil and Appellate Procedure

to implement the legislative mandate. Order of September 8, 2023, Misc.

Docket No. 23-9071 (modifying Tex. R. Civ. P. 21, 165a, 246, 298, 299,

299a, and 306a; Tex. R. App. P. 9.2; and Rule 2.7 of the Statewide Rules

Governing Electronic Filing in Criminal Cases).

The new statute and new rules reflect an effort to create a legal

culture of clarity and notice. This Court has long reiterated and enforced

the overriding value of clarity to ensure that litigation proceeds on its

merits without substantial rights being forfeited through procedural

irregularity. For example, we granted conditional mandamus relief in

7 Various other statutes may bear reexamining in light of the systemic

changes that I suggest today. Here are just a few possibilities: Tex. Gov’t Code

§ 72.157 (requiring the clerk of the court to “enter” a copy of a protective order

into the registry no later than 24 hours after the court “issues” the order); Tex.

Lab. Code § 102.075 (requiring parties to appeal a judgment entered pursuant

to an arbitration board decision within ten days of when the district court

entered its judgment); Tex. Code Crim. Proc. art. 42.01 (defining a “judgment”

as “the written declaration of the court signed by the trial judge and entered of

record showing the conviction or acquittal of the defendant”).

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Whataburger “because the clerk’s failure to give notice of the trial court’s

order” prevented the exercise of relator’s right to appeal. 645 S.W.3d at

194. The need for that relief arose because the trial judge signed

something, which started a clock—but because nobody knew it, the clock

ran out before the aggrieved party could act. The new statute and rules

should eliminate this sort of trap. Our system would be better and clearer

if the rules were triggered only when the order is in fact electronically

filed. Put another way, the delivery of the orders should be the single

point of their effectiveness, replacing the existing, antiquated medley.

* * *

Our divided system of rendering, signing, and entering judgments

creates far more problems than it solves—and needlessly. In today’s

technological era, we should no longer tolerate this confusing, error-

inducing, and cost-imposing system. When the rules impose

requirements tethered to rendition, signing, or entering, we should

instead key those requirements to the electronic filing of an order. When

statutes impose such requirements, the legislature could make the

needed changes. I encourage not just the three branches of our state

government but all relevant stakeholders to consider how our system can

be improved along these lines to more effectively administer justice on

behalf of the People of Texas.

Evan A. Young

Justice

OPINION FILED: March 1, 2024

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