Ex Parte:Harold Cornish

Opinion

Order entered February 19, 2013

In The Court of Appeals Fifth District of Texas at Dallas

No. 05-11-01276-CV

EX PARTE: HAROLD CORNISH

On Appeal from the 256th Judicial District Court Dallas County, Texas Trial Court Cause No. X11-555-R

ORDER

Before the Court is appellants’ February 14, 2013 second motion to abate. We GRANT

appellants’ motion only to the extent they seek an extension of time to file their brief. We

ORDER appellants to file their brief on or before March 25, 2013.

On the Court’s own motion, we make the following order:

On October 29, 2011, the district clerk filed a clerk’s record that contained the order

transferring the expunction file to federal court, the notice of restricted appeal, and requests for

the record. By order dated April 25, 2012, we ordered the trial court to make findings of fact

regarding the status of the request for the return of the documents from the federal court. The

trial court’s findings stated the original documents transferred to federal court have been lost or

destroyed, a copy of the file was made prior to the transfer, and the copy of the file is in the

possession of the Dallas County District Clerk’s Office. Accordingly, we ordered Gary Fitzsimmons, Dallas County District Clerk, to file by May 21, 2012 a clerk’s record containing

the contents of the expunction file.

When the Court did not receive the requested clerk’s record, the Court issued another

order on June 12, 2012 ordering Mr. Fitzsimmons to file the clerk’s record by June 18, 2012. In

response, the Court received a letter from Mr. Fitzsimmons stating that he could not comply with

the Court’s order because contrary to the trial court’s findings, his office did not make a copy of

the file prior to its transfer.

On July 12, 2012, the Court ordered the Honorable Mark Stolz, Judge of the 265th

Judicial District Court of Dallas County, Texas, to conduct a hearing with Mr. Fitzsimmons

present to determine the status of the record and whether the parties could create an agreed

substituted record. We ordered Judge Stolz to make findings of fact and file them in a

supplemental clerk’s record.

After receiving the findings of fact regarding the expunction file, the Court, by order

dated September 25, 2012, ordered Judge Stolz to determine what constitutes an accurate copy of

the missing items in the expunction file and to order them to be included in the clerk’s record.

Judge Stolz determined that the only documents available in this case are the petition for

expunction, the order of expunction, and a copy of the envelope from the Dallas County District

Clerk to the Texas Association of School Boards. A supplemental clerk’s record containing

those three documents was filed on October 11, 2012.

On October 31, 2012, appellants filed a motion to compel explaining that the petition for

expunction contained in the supplemental clerk’s record is missing the third page. By order

dated January 16, 2013, the Court ordered Mr. Fitzsimmons to file a supplemental clerk’s record containing the complete four-page petition for expunction. As of today’s date, the requested

supplemental clerk’s record has not been filed.

Accordingly, we ORDER Gary Fitzsimmons, Dallas County District Clerk, to certify and

transmit the requested supplemental clerk’s record in this case to the Clerk of the Court of

Appeals, Fifth District of Texas, George Allen, Sr. Courts Building, 600 Commerce Street,

Second Floor, Dallas, Texas 75202 by 5:00 p.m. FEBRUARY 22, 2012.

FAILURE TO FILE THE REQUESTED SUPPLEMENTAL CLERK’S RECORD

BY THE DATE AND TIME HEREIN SET FORTH MAY RESULT IN THE ISSUANCE

OF A SHOW CAUSE ORDER AND/OR A JUDGMENT OF CIVIL AND CRIMINAL

CONTEMPT.

The Court DIRECTS the Clerk of the Court to send a copy of this order by both

electronic transmission and by certified mail to:

Gary Fitzsimmons Dallas County District Clerk George L. Allen, Sr. Courts Building 600 Commerce Street, Suite 103 Dallas, Texas 75202

/s/ CAROLYN WRIGHT CHIEF JUSTICE