December 15, 2017

Texas Courts of Appeals

State v. Atkinson

No. 04-17-00184-CR         12/07/17


Is a judge’s handwritten edit to the caption of a motion to dismiss sufficient to change it from a motion to dismiss with leave to refile to a motion to dismiss with prejudice?


No. Although the trial judge added the words “/w prejudice” to the caption of the motion, the text of the dismissal order unambiguously states “the case is hereby dismissed with leave to refile.” An unambiguous order must be given effect based on the literal language used; matters extrinsic to the order may not be considered. Furthermore, the alteration to the caption is not a part of the motion filed by the State because it was done by the trial judge, not State’s counsel. It is not the place of the trial judge to modify motions. Finally, the trial court’s docket sheet, which indicates a dismissal with prejudice, does not control over the text of a written order. Read opinion.


A trial court does not have the authority—generally—to dismiss a case “with prejudice.” Instead of deciding the case on that basis, however, the court of appeals construes the motion and its accompanying order as requesting and obtaining a dismissal of the case “without prejudice” to refile. There is some good language in this opinion if a similar fact situation arises in one of your cases.


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