Opinion
Appellate case number: 01-17-00063-CV
03-20-2018
William Solomon Lewis v. Mark Anthony Aguirre
ORDER Trial court case number: 1062343 Trial court: County Civil Court at Law No. 4 of Harris County
Appellant, William Solomon Lewis, has filed a "Notice of Restricted Appeal" of the trial court's August 8, 2016 order of dismissal. The clerk's record was filed in this Court on March 7, 2017. Appellant has filed a "Motion for Reconsideration of Motion to Supplement the Record," and a "Motion to Supplement Appellant's Motion for Reconsideration of his Motion to Supplement the Record," in which he seeks to supplement the clerk's record with a "Motion for Continuance," filed on July 27, 2016. See TEX. R. APP. P. 34.5(e). The trial court clerk has filed in this Court a supplemental clerk's record, reflecting that the trial court "has no record" of a motion for continuance filed on July 27, 2016, and appellant's copy of the motion "does not have a receiv[ed] stamp indicating that we in fact received his motion."
Appellant has filed a sworn declaration in which he states that he mailed the motion for continuance by turning it over to the proper authorities in the federal prison where he is presently detained. He has also provided this court with a copy of a letter from federal prison authorities stating that a "letter" was mailed to the Harris County Clerk's office on July 27, 2016.
Texas Rule of Appellate Procedure 34.5(e), which governs lost or destroyed clerk's records, provides:
If a filing designated for inclusion in the clerk's record has been lost or destroyed, the parties may, by written stipulation, deliver a copy of that item to the trial court clerk for inclusion in the clerk's record or a supplement. If the parties cannot agree, the trial court must—on any party's motion or at the
appellate court's request—determine what constitutes an accurate copy of the missing item and order it to be included in the clerk's record or a supplement.TEX. R. APP. P. 34.5(e). The trial court must resolve any dispute concerning the accuracy of the items to be included in the clerk's record. See Goetz v. Goetz, No. 01-10-00286-CV, 2012 WL 1454385, at *1 (Tex. App.—Houston [1st Dist.] Apr. 26, 2012, no pet.) (mem. op.).
Based on appellant's contentions and the supplemental clerk's record, it appears possible that appellant's motion for continuance may have been lost or destroyed. See TEX. R. APP. P. 34.5(e). Accordingly, we abate the appeal and remand for the trial court to conduct a hearing to:
(1) determine whether appellant's motion for continuance was "lost or destroyed" for purposes of Rule 34.5(e), and, if so,See TEX. R. APP. P. 34.5(e).
(2) order the parties to deliver a copy of the motion for continuance, with a written stipulation signed by the parties, to the trial court clerk and order the clerk to file a supplemental clerk's record in this Court containing the stipulation and the motion for continuance, if the court determines the parties are able to do so; and
(3) if the parties cannot stipulate to the motion for continuance, the trial court shall determine what constitutes an accurate copy of the motion for continuance and order it to be included in a supplemental clerk's record, which shall be filed with the Clerk of this Court.
The trial court shall have a court reporter record the hearing. The trial court clerk is directed to file any supplemental clerk's record with this Court within 30 days of the date of this order. The court reporter is also directed to file a reporter's record of the hearing with this Court within 30 days of this order.
The appeal is abated, treated as a closed case, and removed from this Court's active docket.
It is so ORDERED. Judge's signature: /s/ Russell Lloyd
[v] Acting individually [ ] Acting for the Court Date: March 20, 2018