Opinion
No. 04-16-00800-CV
05-23-2017
James F. MCKINNON, Appellant v. Robert Stone WALLIN and William Brandon Wallin, Appellee
From the County Court, Gillespie County, Texas
Trial Court No. 10093
Honorable Polly Jackson Spencer, Judge Presiding
ORDER
Appellees Brandon Wallin and Robert Wallin have filed a Motion to Resolve Issues Related to the Reporter's Record and Motion to Extend Deadline to File Appellees' Brief. In their motion, the Wallins point out that Appellant James F. McKinnon in his pro se brief has alleged that the trial court "ordered the bailiff to remove [McKinnon] from the courtroom and continued the court hearing without [McKinnon] being represented." The Wallins state in their motion that the reporter's record does not reflect that McKinnon was removed from the courtroom. The Wallins again point to appellant's brief where McKinnon asserts that "the transcript of the court proceedings were altered." The Wallins move for this Court to remand this cause so that the trial court can hold a hearing pursuant to Texas Rule of Appellate Procedure 34.6(e)(3). Appellees' Motion to Resolve Issues Related to the Reporter's Record is GRANTED to the extent detailed below.
Texas Rule of Appellate Procedure 34.6(e)(3) provides that if a dispute over inaccuracies in the reporter's record "arises after the reporter's record has been filed in the appellate court, that court may submit the dispute to the trial court for resolution." TEX. R. APP. P. 34.6(e)(3). "The trial court must then proceed as under subparagraph (e)(2)." TEX. R. APP. P. 34.6(e)(3). Subparagraph (e)(2) provides that "[i]f the parties cannot agree on whether or how to correct the reporter's record so that the text accurately discloses what occurred in the trial court and the exhibits are accurate, the trial court must—after notice and hearing—settle the dispute." TEX. R. APP. P. 34.6(e)(2). "If the court finds any inaccuracy, it must order the court reporter to conform the reporter's record (including text and any exhibits) to what occurred in the trial court, and to file certified corrections in the appellate court." TEX. R. APP. P. 34.6(e)(2).
We therefore abate this appeal and remand the cause to the trial court. We ORDER the trial court, on or before June 22, 2017, after notice and hearing, to settle this dispute pursuant to Texas Rule of Appellate Procedure 34.6(e)(2). If the trial court finds any inaccuracy, it must order the court reporter to conform the reporter's record (including text and any exhibits) to what occurred in the trial court, and to certify and file such record in this Court in a timely manner. See TEX. R. APP. P. 34.6(e)(2).
We further ORDER the trial court to file its findings of fact regarding this matter on or before July 3, 2017. We also ORDER the trial court clerk to file a supplemental clerk's record containing the trial court's findings of fact within ten days of the trial court signing the findings of fact. Finally, we ORDER the court reporter to file a supplemental reporter's record of the trial court's hearing within twenty days of the hearing.
All appellate deadlines are suspended pending further order of this Court. Therefore, appellees' motion for extension of time to file their brief is DENIED AS MOOT.
/s/_________
Karen Angelini, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 23rd day of May, 2017.
/s/_________
Keith E. Hottle
Clerk of Court