in the Interest of M.A.B. IV v. Department of Family and Protective Services ( 2015 )

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON MEMORANDUM ORDER Appellate case name: In the Interest of M.A.B. IV v. Department of Family and Protective Services Appellate case number: 01-15-00388-CV Trial court case number: 2014-00044J Trial court: 314th District Court of Harris County On July 14, 2015, appellant filed a motion to supplement the clerk’s record with additional items. We granted appellant’s motion to supplement in our order dated July 17, 2015. On the same day, the district clerk filed a supplemental clerk’s record. On July 20, 2015, appellant filed a First Amended Motion for Extension of Time to File Appellant’s Brief and to Secure Full Record asserting that the supplemental clerk’s record filed July 17, 2015 contains only three documents when he had requested additional items. On July 20, 2015, appellant also filed a Motion to Supplement Reporter’s Record with the Exhibits from Hearing Following Abatement. Appellant indicates to this Court that exhibits that were admitted into evidence or tendered in an offer of proof during the abatement hearing on June 30, 2015 are not in the reporter’s record of the hearing and that the court reporter cannot locate the exhibits. Appellant requests specific exhibits be included in a supplemental reporter’s record. We GRANT appellant’s Motion to Secure Full Record and his Motion to Supplement Reporter’s Record with the Exhibits from Hearing Following Abatement and abate the appeal. To expedite decision and for good cause, we suspend the operation of Texas Rule of Appellate Procedure 10.3(a)’s 10-day waiting period and order the following procedure. See TEX. R. APP. P. 2, 10.3(a). The appeal is abated for 20 days and the case is remanded to the trial court for a hearing to be held within 15 days of the date of this order to develop a record concerning the missing exhibits. Accordingly, we direct the trial court to: 1) Determine whether the exhibits from the June 30, 2015 hearing are lost or destroyed; 2) If any of those exhibits are lost or destroyed, determine whether the lost or destroyed exhibits are necessary to the appeal’s resolution; 3) If any of the exhibits are lost or destroyed, determine whether the parties can replace the lost or destroyed exhibits by agreement; 4) If any of the exhibits are lost or destroyed and cannot be replaced by agreement of the parties, determine whether those exhibits can be replaced with copies determined by the trial court to accurately duplicate with reasonable certainty the exhibits from the June 30, 2015 hearing; 5) Make any other findings and recommendations the trial court deems appropriate; and 6) Issue written findings of fact, conclusions of law, and recommendations as to these issues, separate and apart from any docket sheet notations. See TEX. R. APP. P. 34.6(f). If any of the exhibits are able to be located or have been lost or destroyed but can be replaced by agreement of the parties or by the trial court, the court reporter shall file a supplemental exhibit volume to the reporter’s record containing the located or replaced exhibits within 20 days from the date of this order. We further order the district clerk to comply with our previous July 17, 2015 Order to supplement the appellate record with the relevant items requested by appellant and submitted to the district clerk on July 13, 2015 within 20 days from the date of this order. See TEX. R. APP. P. 34.5(c). This abatement does not affect the obligation of this Court to bring this case to final disposition within 180 days of the date the notice of appeal was filed. See TEX. R. JUD. ADMIN. 6.2(a). Therefore, NO EXTENSIONS OF TIME will be considered for 2 the deadlines for filing of the supplemental clerk’s record and reporter’s record, nor for the filing of the briefs by the parties. The district clerk is directed to file a supplemental clerk’s record of the second abatement hearing containing the trial court’s findings, recommendations, and orders with this Court within 20 days of the date of this order. The court reporter is directed to file the reporter’s record of the second abatement hearing within 20 days of the date of this order. This appeal will be reinstated and placed on our active docket 20 days from the date of this order, with no further action from this Court. Appellant’s brief shall be due 20 days thereafter. Appellee shall file its brief within 20 days after appellant’s brief is filed. Appellant’s First Amended Motion for Extension of Time to File Appellant’s Brief is denied as moot. It is so ORDERED. Judge’s signature:_/s/ Rebeca Huddle Acting individually  Acting for the Court Date: July 22, 2015 3