Edith Roman and Alejandro Hernandez v. Joy Halverson ( 2019 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
EDITH ROMAN AND ALEJANDRO §
HERNANDEZ, No. 08-17-00241-CV
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Appellants, Appeal from the
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v. 205th District Court
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JOY HALVERSON, of El Paso County, Texas
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Appellee. (TC# 20160DCV1580)
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ORDER
The above-styled and numbered appeal involves an issue related to the requirements of
notice when a case is dismissed for want of prosecution pursuant to TEX.R.CIV.P. 165a or the trial
court’s inherent power. In the order of dismissal, the trial court notes that due notice was given to
Appellants and the cause was called on the date given in the notice, August 23, 2017. The Clerk’s
record does not include the order issued by the trial court setting the case for a hearing on
August 23, 2017. Appellee attached to her brief a copy of an “Order Setting Hearing” signed by
the trial court on July 6, 2017 and setting the case for hearing on August 23, 2017. The Court is
prohibited from considering documents attached to a brief which are not included in the official
appellate record. Therefore, on our own motion, we ordered the El Paso County District Clerk to
prepare a supplemental clerk’s record containing the Order Setting Hearing, but the District Clerk
has informed the Court that a supplemental clerk’s record cannot be prepared because the order is
not found in the clerk’s file of the case. It therefore appears to the Court that the Order Setting
Hearing signed by the trial court on July 6, 2017 has been lost.
Pursuant to TEX.R.APP.P. 34.5(e), we abate the appeal and order the trial court to conduct
a hearing to determine what constitutes an accurate copy of the missing Order Setting Hearing.
Further, the trial court shall order that the copy of the missing item be filed with the District Clerk
and included in a supplemental clerk’s record. The trial court is directed to conduct the hearing
and enter its order pursuant to Rule 34.5(e) as soon as possible but no later than twenty-one days
from the date of this order. The trial court shall file with the District Clerk its order entered
pursuant to Rule 34.5(e). The District Clerk shall prepare and file a supplemental clerk’s record
containing the trial court’s order and the copy of the missing item as determined by the trial court.
The supplemental clerk’s record is due to be filed no later than ten days after the trial court’s order
is entered.
PER CURIAM
Before McClure, C.J., Rodriguez, and Palafox, JJ.
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