Bay City, Texas v. Wade McFarland

• Court: Court of Appeals of Texas
• Decided: September 2, 2016
• Docket: 13-15-00122-CV
• Status: Published

Opinion

NUMBER 13-15-00122-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

BAY CITY, TEXAS Appellant,

v.

WADE MCFARLAND, Appellee.

On appeal from the 23rd District Court of Matagorda County, Texas.

ORDER OF ABATEMENT Before Chief Justice Valdez and Justices Rodriguez and Perkes Order Per Curiam

On August 3, 2016, the Matagorda County District Clerk forwarded to this Court a

compact disc, which appellant purported to include in its plea to jurisdiction and motion

for summary judgment as Exhibit-C. Appellant and appellee do not dispute that Exhibit-

C shows the dash-cam video of Officer Kimberly Kunz’s police vehicle on June 5, 2011. However, the compact disc forwarded to this Court is blank. The current state of the

record raises a question regarding whether Exhibit-C has been lost or destroyed.

Texas Rule of Appellate Procedure 34.5(e) provides as follows:

If a filing designated for inclusion in the clerk's record has been lost or destroyed, the parties may, by written stipulation, deliver a copy of that item to the trial court clerk for inclusion in the clerk's record or a supplement. If the parties cannot agree, the trial court must—on any party's motion or at the appellate court's request—determine what constitutes an accurate copy of the missing item and order it to be included in the clerk's record or a supplement.

TEX. R. APP. P. 34.5(e).

This appeal is ABATED and the cause REMANDED to the trial court. Upon

remand, the trial court shall conduct a hearing to determine first whether the compact disc

forwarded to this Court is the same item that appellant attached to its motion as Exhibit-

C; if the compact disc is the same item, the trial court shall make that finding on the record

and no further inquiry will be necessary. However, if the compact disc is not the same

item, the trial court shall use whatever means necessary to locate the original and forward

it to this Court as a supplement to the clerk’s record. If the original cannot be found, the

trial court shall afford appellant and appellee an opportunity, by written stipulation, to

deliver a copy of that item to the trial court clerk for inclusion as a supplement to the clerk’s

record; if appellant and appellee cannot agree, the trial court shall determine what

constitutes an accurate copy of Exhibit-C and order it to be included as a supplement to

the clerk’s record. See id.

The trial court shall prepare and file its findings and orders and cause them to be

2 included in a supplemental clerk's record which should be submitted to the Clerk of this

Court within fifteen days from the date of this order.

IT IS SO ORDERED.

PER CURIAM

Delivered and filed this 2nd day of September, 2016