Opinion
No. 04-19-00196-CV
04-25-2019
IN THE GUARDIANSHIP OF JAMES E. FAIRLEY
From the Probate Court No 2, Bexar County, Texas
Trial Court No. 2011-PC-1068
Honorable Polly Jackson Spencer, Judge Presiding
ORDER
The trial court clerk has filed a clerk's record. However, the clerk's record does not comply with Texas Rule of Appellate Procedure 34.5(a), which lists the documents that must be included in the clerk's record "[u]nless the parties designate the filings in the appellate record by agreement under Rule 34.2." TEX. R. APP. P. 34.5. Rule 34.5(a) provides that in civil cases, the documents to be included in the clerk's record are the following:
(1) all pleadings on which the trial was held;
(2) the court's docket sheet,
(3) the court's charge and the jury's verdict, or the court's findings of fact and conclusions of law;
(4) the court's judgment or other order that is being appealed;
(5) any request for findings of fact and conclusions of law, any post-judgment motion, and the court's order on the motion;
(6) the notice of appeal;
(7) any formal bill of exception;
(8) any request for a reporter's record, including any statement of points or issues under Texas Rule of Appellate Procedure 34.6(c);
(9) any request for preparation of the clerk's record;
(10) a certified bill of costs including the cost of preparing the clerk's record, showing credits for payments made; and
(11) any filing that a party designates to have included in the record.
In this appeal, appellant appeals from the trial court's order denying appellant's motion to dismiss pursuant to the Texas Citizens Participation Act. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.001-27.011. The clerk's record does not contain all pleadings and orders relating to the denial of this motion. We ORDER the trial court clerk to file a supplemental clerk's record on or before May 6, 2019 containing the following documents:
1. Order Dismissing Application for Appointment of Permanent Guardian of the Person signed on September 19, 2014;
2. Motion to Transfer Matter Related to Guardianship filed on January 7, 2019;
3. Objection to the Court Transferring District Court Case Into Terminated Guardianship filed on January 14, 2019;
4. Order Transferring Cause signed on February 28, 2019;
5. Answer/Response filed on March 14, 2019;
6. Plaintiff's First Amended Petition filed on March 14, 2019; and
7. Response to Rule 91a Motion filed on March 21, 2019.
We recognize that appellant attached some of these pleadings to her motion to dismiss filed on March 6, 2019. However, a clerk's record must include the actual pleadings filed; the attachment of the pleadings to another motion is not sufficient.
/s/_________
Liza A. Rodriguez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 25th day of April, 2019.
/s/_________
KEITH E. HOTTLE,
Clerk of Court