City of Brownsville, Texas, Tony Martinez, Rose Z. Gowen, Ricardo Longoria Jr., Joel Mungia, Ben Neece and Jessica Tetreau in Their Official Capacities Only v. Brownsville GMS, Ltd. and Michael Bennett

Opinion

NUMBER 13-19-00311-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

CITY OF BROWNSVILLE, TEXAS, TONY MARTINEZ, ROSE M. Z. GOWEN, RICARDO LONGORIA JR., JOEL MUNGIA, BEN NEECE AND JESSICA TETREAU, IN THEIR OFFICIAL CAPACITIES ONLY, Appellants,

v.

BROWNSVILLE GMS, LTD. AND MICHAEL BENNETT, Appellees.

On appeal from the 445th District Court of Cameron County, Texas. NUMBER 13-19-00393-CV

CESAR DE LEON, Appellant,

On appeal from the 445th District Court of Cameron County, Texas.

ORDER OF ABATEMENT Before Justices Benavides, Hinojosa, and Tijerina Order Per Curiam

In cause number 13-19-00311-CV, appellants City of Brownsville, Texas, Tony

Martinez, Rose M. Z. Gowen, Ricardo Longoria Jr., Jessica Tetreau, Joel Munguia, and

Ben Neece, in their Official Capacities (hereafter “City” or “Appellants”), have appealed

an order granting a temporary injunction in favor of appellee Brownsville GMS, Ltd. and

its general manager, Michael Bennett (collectively referred to as GMS). See TEX. CIV.

2 PRAC. & REM. CODE ANN. § 51.014(a)(4). In cause number 13-19-00393-CV, appellant

Cesar De Leon, a former City Commissioner for the City of Brownsville (City), appeals an

order denying his motion to dismiss the claims made against him in his individual capacity

based on the election of remedies provision of the Texas Tort Claims Act (TTCA). See

TEX. CIV. PRAC. & REM. CODE ANN. § 101.106.

These cases arise from the same factual background and, based on our review of

the briefs, present some of the exact same issues on appeal. In cause number 13-19-

00311-CV, appellants have caused to be filed, inter alia, a two-volume clerk’s record and

a first supplemental clerk’s record. In cause number 13-19-00393-CV, appellant has

caused to be filed a three-volume clerk’s record, a two-volume first supplemental clerk’s

record, and a second supplemental clerk’s record.

In cause number 13-19-00393-CV, a pleading entitled “Defendant Cesar De

Leon’s Motion to Dismiss Individual Claims,” which is included in the third volume of the

clerk’s record and the first volume of the two-volume first supplemental clerk’s record,

references two exhibits—Exhibit A, identified in the motion as Article V of the Charter for

the City of Brownsville, and Exhibit B, identified in the motion as excerpts from De Leon’s

deposition. However, the Exhibit B that is actually included in these records consists of

an additional copy of Article V of the Charter. The records fail to include the deposition

excerpts which are identified in the motion as Exhibit B.

The Clerk of this Court has the ability to consult with the parties regarding the

contents of the clerk’s record and can inform the trial court clerk of a defect or inaccuracy

in the clerk’s record. See TEX. R. APP. P. 34.5(d),(h). However, in this situation, the Court

cannot determine whether the clerk’s record is defective or inaccurate and whether or not

3 the referenced Exhibit B was presented to and filed with the trial court. Accordingly, we

ABATE and REMAND these causes to the trial court for a determination regarding

whether the clerk’s records correctly reflect what was filed in the trial court or whether the

records are defective or inaccurate.

Upon remand, the judge of the trial court shall immediately cause notice to be given

and conduct a hearing to determine whether the clerk’s records are complete and

accurate. The trial court shall determine what steps are necessary to ensure the prompt

preparation of complete and accurate clerk’s records and shall enter any orders required

to avoid further delay and to preserve the parties’ rights. If a filing designated for inclusion

in the clerk’s record has been lost or destroyed and the parties cannot agree, by written

stipulation, for a copy of that item to be included in a supplemental record, the trial court

shall determine what constitutes an accurate copy of the missing item and order it to be

included in the a supplemental clerk’s record. See id. R. 34.5(e). The trial court shall

prepare and file its findings and orders and cause them to be included in a supplemental

clerk's record which should be submitted to the Clerk of this Court within thirty days from

the date of this order.

IT IS SO ORDERED.

PER CURIAM

Delivered and filed the 21st day of December, 2020.