Daryl Barnes v. Harris County ( 2019 )

Order filed July 9, 2019.
In The
Fourteenth Court of Appeals
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NO. 14-18-00329-CV
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DARYL BARNES, Appellant
V.
HARRIS COUNTY, TEXAS, ET AL, Appellees
On Appeal from the 164th District Court
Harris County, Texas
Trial Court Cause No. 2016-14432
ABATEMENT ORDER
On June 13, 2019, we notified the parties that according to the clerk’s record,
the judgment or order being appealed is not a final, appealable judgment.
Specifically, it appears the claims again Ron Hickman remain pending in the trial
court. On June 24, 2019, appellees responded by letter asserting we have jurisdiction
over this appeal because Hickman was never served with process.
A certificate of service is prima facie evidence of service. Tex. R. Civ. P. 21a.
Rule 21a creates a presumption that a document properly sent is received by the
addressee. Thomas v. Ray, 889 S.W.2d 237, 238 (Tex. 1994). This presumption may
be rebutted by an offer of proof of nonreceipt. Id. In the absence of any proof to the
contrary, the presumption has the force of a rule of law. Id.
Appellant attached a certificate of service to his petition. Appellees do not
assert it is defective nor do they refer this court to anything in our record that rebuts
the presumption Hickman was properly served.
Texas Rule of Appellate Procedure 27.2 provides:
The appellate court may allow an appealed order that is not final to be
modified so as to be made final and may allow the modified order and
all proceedings relating to it to be included in a supplemental record.
Tex. R. App. P. 27.2. See also Lehmann v. Har-Con Corp., 39 S.W.3d 191, 206
(Tex. 2001). Our record does not reflect the appealed order is final as the claims
against Hickman were not included in the dismissal order.
We therefore order the case abated and remanded to the trial court for a period
of thirty days. A supplemental clerk’s record containing the trial court’s order(s), if
necessary, or any records establishing there are no claims pending against Hickman,
shall be filed with the clerk of this court on or before August 9, 2019.
The appeal is abated, treated as a closed case, and removed from this court’s
active docket. The appeal will be reinstated on this court’s active docket when the
supplemental clerk’s record is filed in this court. The court will also consider an
appropriate motion to reinstate the appeal filed by either party, or the court may
reinstate the appeal on its own motion. It is the responsibility of any party seeking
reinstatement to request a hearing date from the trial court and to schedule a hearing,
if a hearing is required, in compliance with this court’s order. If the parties do not
request a hearing, the court coordinator of the trial court shall set a hearing date, if a
hearing is required, and notify the parties of such date.
PER CURIAM
Panel consists of Justices Christopher, Hassan and Poissant.