Opinion
Appellate case number: 01-19-00424-CV
11-14-2019
Argelio R. Villarreal Saldana v. Victoria Llynn Villarreal
ORDER Trial court case number: 18-2100 Trial court: 428th District Court of Hays County
The clerk's record was filed June 27, 2019. The reporter's record was originally due on July 5, 2019. See TEX. R. APP. P. 35.1. On July 8, 2019, this Court ordered the court reporter to file the record within 30 days of the date of the order. When the court reporter failed to file the record as ordered, this court issued a second order on August 9, 2019 ordering the court reporter, Ruby Castilleja, or the substitute court reporter to file the record within 30 days, and instructed the court reporter that if the record was not filed, the court would order the trial court to conduct a hearing to determine the reason for failure to file the record. On October 22, 2019, we ordered the trial court to conduct a hearing to determine whether a record exists and when it can be filed in this Court. On October 23, 2019, Robin Clark filed an information sheet, stating (1) "no" to the question of whether there is a reporter's record; (2) appellant had not requested a reporter's record; and (3) appellant has not paid or made arrangements to pay for the record. The filing from Robin Clark also included an uncertified audio CD-ROM, purportedly a recording of the underlying proceedings. See TEX. FAM. CODE § 201.009(c). On October 29, 2019, we withdrew our October 22, 2019 abatement order, reinstated the appeal, and struck the audio CD-ROM for failing to comply with the appellate rules. See TEX. R. APP. P. 13.2, 34.6(a)(2). On October 31, we notified appellant that the court reporter has not filed the record because he failed to request it or he had not paid or made arrangements to pay the reporter's fee to prepare it. We gave appellant a deadline of November 11, 2019 to submit written evidence from the court reporter that he has paid or made arrangements to pay the reporter's fee for preparing the reporter's record.
On October 31, appellant notified this Court that he has attempted to request and pay for the record. Appellant appears to have received conflicting information about the record and who is responsible for transcribing a record of the proceedings.
Based on the foregoing, we issue the following order. The reporter's record has not been filed with the Court. The trial and appellate courts are jointly responsible for ensuring that the appellate record is timely filed. See TEX. R. APP. P. 35.3(c). Because the reporter's record has not been filed timely as ordered, we issue the following order.
The judge of the 428th District Court is ordered to conduct a hearing at which the court reporter or court recorder, appellant's counsel, and appellee's counsel shall participate (a) to determine the reason for failure to file the record; (b) to establish a date certain when the reporter's record will be filed, and (c) to make whatever additional findings and orders to ensure that the appellate record is timely filed. The trial court shall forward to this court a supplemental clerk's record containing its relevant findings and orders. The hearing record and supplemental clerk's record shall be filed with the clerk of this court within 30 days of the date of this order.
We note that if the proceedings were electronically recorded, the reporter's record consists of certified copies of all tapes or other audio-storage devices on which the proceedings were recorded, any of the exhibits that the parties to the appeal designate, and certified copies of the logs prepared by the court recorded under Texas Rule of Appellate Procedure 13.2. See TEX. R. APP. P. 34.6(a)(2). The official court recorder must, among other things, (a) ensure that the recording system functions properly throughout the proceeding and that a complete, clear, and transcribable record is made; (b) make a detailed, legible log of all proceedings being recorded, showing: (1) the number and style of the case before the court; (2) the name of each person speaking; (3) the event being recorded such as the voir dire, the opening statement, direct and cross-examinations, and bench conferences; (4) each exhibit offered, admitted, or excluded; (5) the time of day of each event; and (6) the index number on the recording device showing where each event is recorded. See TEX. R. APP. P. 13.2
The 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 when the trial court's findings and recommendations are filed in this court. The court will also consider an appropriate motion to reinstate the appeal filed by either party, or the court may reinstate the appeal on its own motion. If the court reporter files the record prior to the date set for the hearing, the appeal will be reinstated and the trial court need not hold a hearing.
It is so ORDERED. Judge's signature: /s/ Sherry Radack
[×] Acting individually [ ] Acting for the Court Date: November 14, 2019