The opinion
COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: C.B. v. Department of Family and Protective Services
Appellate case number: 01-16-00989-CV
Trial court case number: 2015-26726
Trial court: 309th District Court of Harris County
This is an accelerated appeal from an order terminating appellant’s parental rights. On
January 18, 2017, court reporter Walter Johnson filed a notice that he was unable to produce a
record for August 16, 2017 because he found nothing on disk or paper for that day. Johnson has
informed our court clerk that he believes, after reviewing the docket sheet and talking to Assistant
County Attorney Francie Aguirre, that no testimony was taken that day and the only proceeding
was to declare the father indigent.
Appellant’s appointed counsel states that the missing record raises no arguable issue
because the existing record supports the trial court’s judgment.
Under Rule 34.6(f), an appellant is entitled to a new trial if the reporter’s record was timely
requested, a significant portion of the court reporter’s notes or records have been lost or destroyed,
the lost or destroyed portion is necessary to resolution of the appeal, and the missing portion cannot
be replaced either by agreement or with a copy the trial court determines is an accurate duplicate
of any original exhibit. See TEX. R. APP. P. 34.6(f).
Accordingly, we abate the appeal and remand the case to the trial court for an evidentiary
hearing to determine, after hearing testimony from Walter Johnson and Francie Aguirre, the
following: (1) whether a significant portion of the court reporter’s notes and record were lost or
destroyed; (2) whether the lost or destroyed portion of the reporter’s record is necessary to the
resolution of the appeal; and (3) if the lost portion of the reporter’s record can be replaced by
agreement or by the trial court. We order the court to prepare a record, in the form of a reporter’s
record, of the hearing. The judge shall make findings of fact and conclusions of law, and shall
order the trial clerk to forward to this court a supplemental clerk’s record containing the findings
and conclusions. The hearing record and supplemental clerk’s record shall be filed with the clerk
of this court within 15 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 the trial court’s findings and
recommendations are filed in 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.
It is so ORDERED.
Judge’s signature: _/s/ Harvey Brown
Acting individually Acting for the Court
Date: April 4, 2017