Argelio R. Villarreal Saldana v. Victoria Lynn Villarreal

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF CONTINUING ABATEMENT
Style: Argelio R. Villarreal Saldana v. Victoria Lynn Villarreal
Appellate case number: 01-19-00424-CV
Trial court: 428th District Court, Hays County, Texas
Trial court case number: 18-2100
The clerk’s record was filed June 27, 2019. The reporter’s record was originally
due on July 5, 2019. See TEX. R. APP. P. 35.1. On July 8, 2019, this Court ordered the
court reporter to file the record within 30 days of the date of the order. When the court
reporter failed to file the record as ordered, this court issued a second order on August 9,
2019 ordering the court reporter, Ruby Castilleja, or the substitute court reporter to file the
record within 30 days, and instructed the court reporter that if the record was not filed, the
court would order the trial court to conduct a hearing to determine the reason for failure to
file the record. On October 22, 2019, we ordered the trial court to conduct a hearing to
determine whether a record exists and when it can be filed in this Court. On October 23,
2019, Robin Clark filed an information sheet, stating (1) “no” to the question of whether
there is a reporter’s record; (2) appellant had not requested a reporter’s record; and (3)
appellant has not paid or made arrangements to pay for the record. The filing from Robin
Clark also included an uncertified audio CD-ROM, purportedly a recording of the
underlying proceedings. See TEX. FAM. CODE § 201.009(c). On October 29, 2019, we
withdrew our October 22, 2019 abatement order, reinstated the appeal, and struck the audio
CD-ROM for failing to comply with the appellate rules. See TEX. R. APP. P. 13.2,
34.6(a)(2). On October 31, we notified appellant that the court reporter has not filed the
record because he failed to request it or he had not paid or made arrangements to pay the
reporter’s fee to prepare it. We gave appellant a deadline of November 11, 2019 to submit
written evidence from the court reporter that he has paid or made arrangements to pay the
reporter’s fee for preparing the reporter’s record.
On October 31, appellant notified this Court that he has attempted to request and
pay for the record from an April 9, 2019 hearing. Appellant appeared to have received
conflicting information about the record and who is responsible for transcribing a record
of the proceedings.
On November 14, 2019, we abated this appeal and ordered the trial court to hold a
hearing to (1) determine the reason for failure to file the record; (b) establish a date certain
when the reporter’s record will be filed; and (c) make whatever additional findings and
orders to ensure that the appellate record is timely filed.
On November 18, 2019, court reporter, Frances B. Janezic filed a supplemental
reporter’s record containing a transcript and exhibits from the April 9, 2019 hearing.
On January 9, 2020, Mallory Rogers, on behalf of Beverly Crumley, the Hays
County District Clerk, notified this Court that she was unable to file a supplemental record
because the trial court had not set a hearing. On January 29, 2020, appellant filed a
response in this Court, asking that we hold the trial court in contempt for failing to follow
our November 14, 2019 order, and he requested transcripts from the February 21, 2019 and
April 9, 2019 hearings.
Based on the foregoing, we issue the following order of continuing abatement. The
appellate record does not appear to be complete. The trial and appellate courts are jointly
responsible for ensuring that the appellate record is timely filed. T EX. R. APP. P. 35(c).
The appellate court may enter any order necessary to ensure the timely filing of the
appellate record. Id.
The judge of the 428th District Court is ordered to conduct a hearing at which the
court reporter or court recorder, appellant’s counsel, and appellee’s counsel shall
participate to
(1) Determine whether a reporter’s record of a February 21, 2019 hearing
exists;
(2) If it exists, determine a date certain when a reporter’s record of this
hearing will be filed;
(3) If no record exists of a February 21, 2019 hearing:
(a) Determine why there is no record for said hearing;
(b) Determine if the record is necessary to this appeal; and
(c) Determine if the record can be replaced by agreement of the
parties;
(4) Make whatever additional findings and orders to ensure that the
appellate record is timely filed.
See TEX. R. APP. P. 34.6(f).
The trial court shall have a court reporter, or court recorder, record the hearing. The
trial court clerk is directed to file a supplemental clerk’s record containing the trial court’s findings,
recommendations, and orders with this Court within 25 days of the date of this order. The court
reporter is directed to file the transcript of the hearing within 25 days of the date of this order.
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 records that
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comply with our order are filed with the Clerk of 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. If the court reporter files the record prior to the date set for
the hearing, the appeal will be reinstated and the trial court need not hold a hearing. The
court coordinator of the trial court shall set a hearing date and notify the parties.
It is so ORDERED.
Judge’s signature: __/s/ Sherry Radack_____________________________________
 Acting individually  Acting for the Court
Date: __August 6, 2020____
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