John Benjamin Clopton, Jr. v. Mountain Peak Water Supply Corporation and Texas Natural Resource Conservation Commission ( 1998 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-97-00383-CV

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John Benjamin Clopton, Jr., Appellant

v.

Mountain Peak Water Supply Corporation and Texas Natural Resource Conservation Commission, Appellees

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FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT NO. 93-15139, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING

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PER CURIAM

John Benjamin Clopton, Jr., perfected appeal from the trial court judgment rendered against him in his suit for judicial review. Although Clopton properly requested a record, this Court has never received a complete reporter's record. The question before us is whether Clopton has satisfied the requirements to secure a new trial based on a lost or destroyed reporter's record. See Tex. R. App. P. 36.6(f). ⁽¹⁾ We hold that he has.

The portion of the reporter's record covering a hearing held May 3, 1996, has never been tendered. ⁽²⁾ After a series of extensions and pursuant to an order of this Court, Tom McMinn, the court reporter responsible for that hearing, tendered an affidavit that he had searched his records and cannot locate his notes or exhibits in order to prepare a reporter's record for the May 3, 1996 hearing. We abated the appeal and remanded to the trial court for an evidentiary hearing on the elements of Texas Rule of Appellate Procedure 34.6(f). The trial court held a hearing and the record of that hearing has been forwarded to this Court for review.

The record establishes that Tom McMinn was the court reporter who recorded the hearing in question. The district court time records showed that he worked that day. None of the parties recall any reporter other than Tom McMinn being present at that hearing. Therefore, we can conclude that no one else would have the notes and exhibits to prepare the record. The parties testified that they had attempted to formulate an agreed record, but did not succeed in constructing an agreed record. The missing portion of the record concerned an evidentiary hearing on a substantive issue. The first elements of Rule 36.6 have been satisfied. The remaining factor to consider is whether the missing hearing is necessary to the appeal's resolution.

The missing hearing concerned a claim of ex parte contacts. The Administrative Procedure Act generally prohibits communication between an agency fact-finder and a party-representative in connection with an issue of fact or law in a pending hearing. Tex. Gov't Code Ann. § 2001.061(a) (West 1999). The prohibition against ex parte communications was designed to prevent litigious facts coming before agency decision makers without becoming part of the record in the contested case. See Young Chevrolet, Inc. v. Texas Motor Vehicle Bd., 974 S.W.2d 906, 914 (Tex. App.--Austin 1998, pet. denied); Lone Star Greyhound Park, Inc. v. Texas Racing Comm'n, 863 S.W.2d 742, 751 (Tex. App.--Austin 1993, writ denied). The mere fact that an ex parte communication occurred is not sufficient to establish a violation of the constitutional guarantees of procedural due process of law. Young, 974 S.W.2d at 914; Smith v. Houston Chem. Servs., Inc., 872 S.W.2d 252, 278 (Tex. App.--Austin 1994, writ denied). A violation of the prohibition against ex parte communications is not shown unless a party establishes that the content of the ex parte conversation came within the prohibition. Young, 974 S.W.2d at 914.

In this case, the parties agree that an evidentiary hearing was held, with at least one witness testifying concerning the alleged ex parte contacts. Appellees characterize the witness as dispelling any ex parte problems; appellant refers to the witness as being "good for him." Without a record from the hearing we do not see how appellant could establish that the content of the alleged ex parte communications fell within the prohibition in the APA and thus violated due process. This Court has no record to review to evaluate that communication. Therefore, we hold the missing portion is necessary to the appeal's resolution. Clopton has satisfied the provisions of Rule 36.6(f) entitling him to a new trial.

Accordingly, we reverse the trial court judgment and remand the cause for a new trial. ⁽³⁾

Before Chief Justice Aboussie, Justices Jones and B. A. Smith

Reversed and Remanded

Filed: December 17, 1998

Do Not Publish

1. An appellant is entitled to a new trial if: appellant has timely requested a reporter's record; without appellant's fault, a significant exhibit or portion of the court reporter's notes and records has been lost or destroyed; if the lost portion of the reporter's record or exhibit is necessary to the appeal's resolution; and the parties cannot agree on a complete reporter's record. See Tex. R. App. P. 36.6(f). The requirement that the lost portion be necessary to the appeal's resolution was added in the rules effective September 1, 1997.

2. The hearing concerned ex parte contacts. When a party alleges that procedural irregularities occurred before the agency, the trial court may receive evidence of the alleged procedural irregularities. See Tex. Gov't Code Ann. § 2001.175(e) (West 1999).

3. Clopton's pending motion for extension of time to file his brief is dismissed.

Tom McMinn, the court reporter responsible for that hearing, tendered an affidavit that he had searched his records and cannot locate his notes or exhibits in order to prepare a reporter's record for the May 3, 1996 hearing. We abated the appeal and remanded to the trial court for an evidentiary hearing on the elements of Texas Rule of Appellate Procedure 34.6(f). The trial court held a hearing and the record of that hearing has been forwarded to this Court for review.

The record establishes that Tom McMinn was the court reporter who recorded the hearing in question. The district court time records showed that he worked that day. None of the parties recall any reporter other than Tom McMinn being present at that hearing. Therefore, we can conclude that no one else would have the notes and exhibits to prepare the record. The parties testified that they had attempted to formulate an agreed record, but did not succeed in constructing an agreed record. The missing portion of the record concerned an evidentiary hearing on a substantive issue. The first elements of Rule 36.6 have been satisfied. The remaining factor to consider is whether the missing hearing is necessary to the appeal's resolution.

The missing hearing concerned a claim of ex parte contacts. The Administrative Procedure Act generally prohibits communication between an agency fact-finder and a party-representative in connection with an issue of fact or law in a pending hearing. Tex. Gov't Code Ann. § 2001.061(a) (West 1999). The prohibition against ex parte communications was designed to prevent litigious facts coming before agency decision makers without becoming part of the record in the contested case. See Young Chevrolet, Inc. v. Texas Motor Vehicle Bd., 974 S.W.2d 906, 914 (Tex. App.--Austin 1998, pet. denied); Lone Star Greyhound Park, Inc. v. Texas Racing Comm'n, 863 S.W.2d 742, 751 (Tex. App.--Austin 1993, writ denied). The mere fact that an ex parte communication occurred is not sufficient to establish a violation of the constitutional guarantees of procedural due process of law. Young, 974 S.W.2d at 914; Smith v. Houston Chem. Servs., Inc., 872 S.W.2d 252, 278 (Tex. App.--Austin 1994, writ denied). A violation of the prohibition against ex parte communications is not shown unless a party establishes that the content of the ex parte conversation came within the prohibition. Young, 974 S.W.2d at 914.

In this case, the parties agree that an evidentiary hearing was held, with at least one witness testifying concerning the alleged ex parte contacts. Appellees cha