Edith Roman and Alejandro Hernandez v. Joy Halverson

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

EDITH ROMAN AND ALEJANDRO § HERNANDEZ, No. 08-17-00241-CV § Appellants, Appeal from the § v. 205th District Court § JOY HALVERSON, of El Paso County, Texas § Appellee. (TC# 20160DCV1580) §

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.

Before McClure, C.J., Rodriguez, and Palafox, JJ.