Marcus A. Tavira v. Texas Dept. of Criminal Justice ( 2014 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-14-00046-CV
MARCUS A. TAVIRA, APPELLANT
V.
TEXAS DEPT. OF CRIMINAL JUSTICE AND
T & J WILLIS EQUIPMENT RENTAL AND SALES, INC., APPELLEES
On Appeal from the 100th District Court
Childress County, Texas
Trial Court No. 10163, Honorable Stuart Messer, Presiding
April 23, 2014
ORDER
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
The clerk’s record in this appeal has been filed. On April 8, 2014, the Court
issued an order by letter seeking information bearing on its jurisdiction. Appellees
Texas Department of Criminal Justice and T & J Willis Equipment Rental and Sales,
Inc., and appellant Marcos Anthony Tavira responded to our April 8 order.1 After further
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It appears J.L.G. Industries, Inc. a/k/a JLG Industries, Inc., remains a defendant
in trial court cause number 10163. This entity has taken no action here or in the trial
court relevant to the matters addressed by this order.
considering the clerk’s record and those parties’ responses, the Court has identified
three issues requiring the parties’ prompt attention.
First, with its response TDCJ provided a copy of a signed November 12, 2013
order granting its plea to the jurisdiction and with its response Willis provided a copy of
a signed November 14, 2013 order granting a summary judgment in its favor. But the
orders do not appear in the clerk’s record. Despite inquiries, the Court has no indication
either order was presented for filing.
An appellate court may generally not consider matters outside the appellate
record. In the Interest of M.S., 115 S.W.3d 534, 546 (Tex. 2003); Kohutek v. Kohutek,
No. 07-10-0143-CV, 2011 Tex. App. LEXIS 7585, at *14 n.8 (Tex. App.—Amarillo Sept.
16, 2011, no pet.) (mem. op.). While we may consider documents from outside the
record for the limited purpose of determining our own jurisdiction, TEX. GOV’T CODE ANN.
§ 22.220(c) (West Supp. 2013), we decline to do so here because of the absence of
affidavits and because of the availability of the procedure under appellate rule 34.5(e).
TEX. R. APP. P. 34.5(e).
Pursuant to appellate rule 34.5(e), the Court directs the parties to confer among
themselves, and with the trial court if necessary, to determine whether the original
November 12 and November 14 orders are lost. If either order is lost, the parties shall
further confer concerning the accuracy of the copies produced by TDCJ and Willis. If
the parties agree to the accuracy of the copies, they shall so stipulate in writing, and file
an original stipulation with copies of the orders attached in trial court cause numbers
10163 and 10357. If the parties are unable to agree as to either order, the trial court
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shall conduct a hearing to determine what constitutes an accurate copy of each order.
It shall then render and sign a written order stating the correct substance of each order.
See TEX. R. APP. P. 34.5(e). Whether by agreement, resulting in a stipulation with
attachments, or by trial court proceeding, resulting in a signed order, the proper
instrument shall be included in a supplemental clerk’s record in cause number 10163
and filed in appellate case number 07-14-00046-CV. The supplemental clerk’s record
shall be filed as promptly as feasible, and in no event later than 20 days from the date of
this order.
Second, on January 29, 2014, the trial court severed Mr. Tavira’s case against
Willis into cause number 10357. Although Mr. Tavira seeks to appeal the grant of
summary judgment in favor of Willis, a record from cause number 10357 was not
brought forward on appeal. The appeal of cause number 10357 will henceforth bear
appellate case number 07-14-00157-CV. In addition to the items specified in the trial
court’s January 29 severance order, the record brought forward for filing in case number
07-14-00157-CV shall include, Mr. Tavira’s December 13, 2013 notice of appeal, the
previously mentioned agreement or order under appellate rule 34.5(e), and any other
item requested by a party. See TEX. R. APP. P. 34.5(b). Mr. Tavira shall make payment
arrangements acceptable with the clerk for preparation of the record in cause number
10357 within ten days of the date of this order. The clerk shall file the record from
cause number 10357 in appellate case number 07-14-00157-CV within twenty days of
the date a stipulation or order under appellate rule 34.5(e) is filed.
Third, if, as appears, the trial court signed the order granting TDCJ’s plea to the
jurisdiction on November 12, 2013, Mr. Tavira’s notice of interlocutory appeal appears
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untimely. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(8) (West Supp. 2013)
(appeal from interlocutory order granting or denying plea to the jurisdiction); TEX. R.
APP. P. 28.1(a) (accelerated appeal of interlocutory order); TEX. R. APP. P. 26.1(b)
(notice of appeal in accelerated appeal must be filed within twenty days of appealable
order). However, the fifteen-day extension authorized by appellate rule 26.3 also may
apply. TEX. R. APP. P. 26.3. If so, a motion for extension of time is implied. Verburgt v.
Dorner, 959 S.W.2d 615, 617 (Tex. 1997). If Mr. Tavira is relying on the fifteen-day
extension under rule 26.3, he must file a reasonable explanation of his need for an
extension of time. Woodard v. Higgins, 140 S.W.3d 462, 462 (Tex. App.—Amarillo
2004, no pet.); TEX. R. APP. P. 10.5(b). The written explanation must be filed within ten
days of the date the previously-referenced stipulation or trial court order under appellate
rule 34.5(e) is filed with the clerk of the trial court. Mr. Tavira’s failure to comply will
result in dismissal of his interlocutory appeal in case number 07-14-00046-CV. TEX. R.
APP. P. 42.3(a) and (c).
The abatement created by the Court’s order of April 8, 2014 is dissolved.
It is so ordered.
Per Curiam
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