Opinion
No. 10-06-00092-CV
Order issued and filed October 10, 2007. DO NOT PUBLISH.
Appeal from the 361st District Court Brazos County, Texas, Trial Court No. 04-001812-CV-361.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
ABATEMENT ORDER
The reporter's record is long overdue. In the past, this Court has issued an order directly to a court reporter requiring that the record be filed within a specified time or the Court may issue a show cause order and/or a judgment of contempt. See, e.g., McElwee v. Joham, 971 S.W.2d 198, 198 (Tex.App.-Waco 1998, order) (per curiam), disp. on merits, 15 S.W.3d 557 (Tex.App.-Waco 2000, no pet.); see also Revell v. State, No. 10-06-00137-CR, slip op. at 2 (Tex.App.-Waco Feb. 7, 2007, order) (per curiam) (not designated for publication). However, the Court has no current location information for the court reporter, and the court reporter has not fulfilled past assurances that the reporter's record in this case (and in others) would be filed by a date certain. Therefore, we will abate this cause for a hearing in the trial court to ensure that the reporter's record is filed within a reasonable period of time following the date of this Order.
Although the Court's February 7, 2007 order is not designated for publication, it was included as an appendix to Chief Justice Gray's dissenting opinion of the same date. See Revell v. State, 211 S.W.3d 483 app. at 484 (Tex.App.-Waco 2007, order) (Gray, C.J., dissenting).
The court reporter in this case no longer serves as the official court reporter for the trial court.
The judgment was signed on January 10, 2006. Appellants filed a motion for new trial and then a notice of appeal. The district clerk filed the clerk's record on September 6, 2006. To date, no reporter's record has been filed.
Because of the motion for new trial, the reporter's record was originally due on May 10, 2006. See TEX. R. APP. P. 35.1(a). The Clerk of this Court notified the official court reporter, Susan Rainwater, that the record was overdue by letters dated August 22, 2006, and November 7, 2006, in addition to several telephone calls regarding the late record. Rainwater has generally failed to return the Clerk's telephone calls.
On February 22, 2007, the Clerk of this Court sent a letter to the trial judge informing him that Rainwater was significantly delinquent in the filing of eight original or supplemental reporter's records, including the one in this case. The Clerk asked for the trial judge's "assistance in getting these records filed as soon as practicable."
Rainwater responded by letter dated February 27, apologizing for the delays and stating when each particular record would be filed. With regard to the record in this case, Rainwater stated that it would be filed "within a month." Now, more than six months after Rainwater assured the Clerk that the reporter's record would be filed in this case, the Court still awaits the filing of the reporter's record.
Therefore, we abate this appeal to the trial court for a hearing to determine:
(1) why Rainwater has failed to file the reporter's record for this case;
(2) Rainwater's current contact information, so the Clerk of this Court will have an address and a telephone number by which she can communicate with Rainwater;
Since Rainwater is no longer the official court reporter, all communications by the Clerk of this Court with Rainwater have been through the trial court's staff.
(3) a date certain within a reasonable period of time when the reporter's record will be filed; and
(4) whether any sanctions should be imposed on Rainwater.
The trial court shall: (1) conduct the hearing within twenty-one (21) days after the date of this Order; (2) prepare any necessary findings of fact and conclusions of law; and (3) sign a written order consistent with the requirements of this Order.
The district clerk shall file a supplemental clerk's record containing a copy of (1) the trial court's findings of fact and conclusions of law and (2) the trial court's order with the Clerk of this Court within thirty-five (35) days after the date of this Order.
Unless the parties waive the making of a reporter's record in the abatement hearing, the trial court's current official court reporter is ordered to prepare and file a supplemental reporter's record of the abatement hearing with the Clerk of this Court within thirty-five (35) days after the date of this Order.