In re J.K.B.

Full title: In the Interest of J.K.B. and J.D.B.

Court: COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON

Date published: Oct 29, 2013

Appellate case number: 01-13-00629-CV (Tex. App. Oct. 29, 2013)

Opinion

Appellate case number: 01-13-00629-CV Trial court case number: 2011-77322

10-29-2013

In the Interest of J.K.B. and J.D.B.

Laura C. Higley

ORDER

Trial court: 246th District Court of Harris County

On July 23, 2013, appellant, Roy Alan Boldon, filed his Request for Findings of Fact and Conclusions of Law. See TEX. R. CIV. P. 296. On August 21, 2013, appellant filed his Notice of Past Due Findings of Fact and Conclusions of Law. See TEX. R. CIV. P. 297. The trial court did not file the requested findings of fact and conclusions of law. On September 26, 2013, appellant filed a motion requesting abatement of his appeal and remand to the trial court for entry of findings of fact and conclusions of law.

If findings of fact and conclusions of law are properly requested, the trial court must file and prepare them. See id. The trial court's failure to respond to a timely request constitutes error and is presumed harmful unless the record affirmatively shows a complaining party has suffered no harm. Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996); Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989). The proper remedy in this situation is to abate the appeal and direct the trial court to correct its error. See TEX. R. APP. P. 44.4; Baltzer v. Medina, 240 S.W.3d 469, 473 (Tex. App.—Houston [14th Dist.] 2007, no pet.). Accordingly, we grant appellant's motion.

This appeal is abated and remanded for the trial court to make findings of fact and conclusions of law as required by the Texas Rules of Civil Procedure. Because this is an accelerated appeal, the trial court shall make the appropriate findings and conclusions and shall cause them to be filed with the trial court clerk within 20 days of the date of this order.

The trial court clerk is ordered to file a supplemental clerk's record containing the trial court's findings of fact and conclusions of law with this Court within 30 days of the date of this order.

This appeal is abated, treated as a closed case, and removed from this Court's active docket. The appeal will be reinstated on this Court's active docket without further order of the Court when the supplemental clerk's record is filed with this Court.

It is so ORDERED. Judge's signature: Laura C. Higley

[X] Acting individually [ ] Acting for the Court