Opinion
10-22-00041-CV
01-30-2024
MARVIN W. HAWKINS, Appellant v. SENTRY CASUALTY COMPANY, Appellee
From the 414th District Court McLennan County, Texas Trial Court No. 2019-572-5
Before Chief Justice Gray, Justice Johnson, and Justice Smith
REINSTATEMENT AND ABATEMENT ORDER
PER CURIAM
Because it is the joint responsibility of this Court and the trial court to ensure the timely filing of the appellate record, Tex.R.App.P. 35.3(c), and because this Court's efforts to obtain a complete appellate record had been exhausted without success, this proceeding was abated and remanded to the trial court on November 27, 2023 for the trial court to determine whether or not a reporter's record exists for the portion of the trial which occurred on October 8, 2021 and the hearing on the Appellant's motion for new trial which occurred on December 3, 2021. If the trial court found that the transcript of either or both of those dates exists, the trial court was ordered to order the court reporter to file the reporter's record with this Court within 45 days of the November 27, 2023 Order. If the trial court determined that there is no record of either or both of those dates, the trial court was ordered to determine why no record was made, and if it was lost, destroyed, or inaudible, to make written findings as required by Rule of Appellate Procedure 34.6(f).
Both the trial court clerk and the court reporter were ordered to file a record of any hearing conducted or findings made pursuant to the November 27, 2023 Order within 14 days of the hearing, although the Order did not require a formal hearing to be conducted. More than 45 days have passed from the November 27, 2023 Order and we have not received anything to evidence compliance with any part of this Court's November 27, 2023 Order. The trial court clerk has filed a supplemental clerk's record that contains no information as to what transpired in the trial court relating to the Court's November 27, 2023 Order. The court reporter has not filed anything.
This proceeding is REINSTATED for the purpose of entering this Order.
This proceeding is also ABATED again until further order of this Court and this proceeding is REMANDED to the trial court to comply with this Order.
1. The trial court is ORDERED to conduct a formal hearing within 21 days of this Order. The trial court is ORDERED to determine whether or not a reporter's record was taken for the portion of the trial held on October 8, 2021, and the hearing on the motion for new trial held on December 3, 2021. If no reporter's record exists, the trial court is ORDERED to determine why no reporter's record was made or whether it was lost, destroyed, or is inaudible.
2. The trial court is ordered to have the official court reporter for the 414th District Court to take a record of the hearing conducted pursuant to this Order and to file a supplemental reporter's record of that hearing within 14 days of the hearing.
3. After the hearing, the trial court is ORDERED to render and sign a written order as to whether or not a record was made of the portion of the trial which occurred on October 8, 2021 and the December 3, 2021 hearing on the motion for new trial. If the record exists, the trial court is ORDERED to ascertain the identity and current address for the reporter responsible for the preparation of the reporter's record for each stated date and include it in the written order and to render and sign any orders appropriate to ensure the prompt preparation of the reporter's record for these dates. If the record for either date does not exist, the trial court is ORDERED to make written findings as to why the record does not exist including whether it was not made or whether it was lost, destroyed, or is inaudible and to make the findings required by Rule of Appellate Procedure 34.6(f) within seven days of the hearing conducted pursuant to this Order. The trial court is ORDERED to deliver to the trial court clerk all orders and written findings made pursuant to this Order within seven days of the hearing conducted pursuant to this Order.
We recognize that the elected judge of the 414th District Court who rendered judgment in this proceeding left office on November 30, 2023, which may make these determinations more complicated than otherwise. However, to establish that this Court and the trial court have taken all measures possible in order to ensure the filing of the reporter's record and to avoid the possibility of a new trial because of a lost, destroyed, or inaudible record, this Order is necessary.
4. If there is a reporter's record of the trial on October 8, 2021 or the motion for new trial hearing on December 3, 2021, the trial court is ORDERED to order the court reporter to prepare the record and to file it with this Court within 14 days of the hearing conducted pursuant to this Order. The court reporter's failure to comply with the trial court's order may result in an order for the court reporter to appear and show cause as to why the record has not been filed and why the court reporter should not be held in contempt for failure to comply with the trial court's order.
5. The trial court clerk is ORDERED to file a supplemental clerk's record with this Court that contains the written order and findings of the trial court pursuant to this Order within 7 days after the entry of the written order and findings by the trial court.
Appeal reinstated; Appeal abated Order issued and filed January 30, 2024 [RWR]