O'Neal v. Stovall

• Decision Date: 04 April 1979
• Docket Number: No. 13033,13033
• Citation: 580 S.W.2d 130
• Parties: Phil P. O'NEAL, Relator, v. Gary W. STOVALL, Respondent.
• Court: Texas Court of Appeals

Page 130

580 S.W.2d 130

Phil P. O'NEAL, Relator, v. Gary W. STOVALL, Respondent.

No. 13033.

Court of Civil Appeals of Texas, Austin.

April 4, 1979.

James A. Childress, Senterfitt, Adams, Miller & Childress, San Saba, Shannon H. Ratliff, McGinnis, Lochridge & Kilgore, Austin, for relator.

Jon N. Coffee, Coffee, Goldston & Bradshaw, Austin, for respondent.

SHANNON, Justice.

This is an original proceeding in mandamus filed by relator Phil P. O'Neal. Relator asks this Court to compel respondent Gary W. Stovall, official court reporter for the 33rd Judicial District Court of San Saba County, to prepare a statement of facts in our cause number 12,955, Phil P. O'Neal v. County of San Saba. The transcript in that cause was filed with the Clerk of this Court on November 2, 1978.

After about a three-day trial, the jury returned its verdict on September 17, 1977. On July 1, 1978, the district court signed the judgment. The district court overruled relator's amended motion for new trial on September 8, 1978. On the same date, counsel for relator notified Gary W. Stovall, official court reporter for the 33rd Judicial District Court of San Saba County, to prepare a statement of facts.

On April 4, 1979, the date of this opinion, and 208 days after the date of the request for its preparation, respondent still has not prepared the statement of facts. Counsel for respondent represented to this Court during oral argument of the petition for writ of mandamus that the respondent had completed four hundred pages of an approximate nine hundred-page statement of facts.

In his response to the petition for mandamus, respondent answered that he had resigned as official court reporter of the 33rd Judicial District Court effective March 19, 1979. In his answer respondent represented that he would complete and deliver the statement of facts "within a reasonable time," but has been unable to do so thus far. Counsel for respondent represented in oral argument that respondent will continue to report proceedings in the 33rd Judicial District Court when that court sits in Burnet County.

Respondent's excuses for failure to complete and deliver the statement of facts within the time required by Tex.R.Civ.P. 386 and the several extensions of time granted by this Court were set out in affidavits prepared by respondent to be attached to the several motions for extension of time. The affidavit attached to the fourth motion is representative of the several affidavits and is set out below:

"Before me, the undersigned authority, on this date personally appeared Gary W. Stovall, a credible person known to me to be the person whose name is subscribed below, who being by me first duly sworn, upon his oath deposed and said; I am the official Reporter in and for the 33rd Judicial District Court of Texas. I am the Reporter who took the testimony in Cause No. 4944, styled The County of San Saba vs. Phil P. O'Neal.

I will be unable to complete the preparation of this Statement of Facts by February 15, 1979. My problem is occasioned by the fact that the 33rd Judicial District Court encompasses six counties. I am the only Court Reporter within this district and the current work load, length of this Statement of Facts, demands of other matters now on appeal and duties of my office have denied me time to work solely on this Statement of Facts. An additional sixty (60) days will be required in which to timely complete and file the Statement of Facts in this cause.

For such reasons I respectfully request sucn (Sic ) an extension of time in which to complete and deliver the Statement of Facts, together with exhibits, for filing with the Court of Civil Appeals. Such an extension of time is necessary and will be sufficient."

The 33rd Judicial District is composed of six counties: Mason, Menard, Blanco, San Saba, Llano, and Burnet. Four of the six counties are included within the Third Supreme Judicial District. This Court judicially knows that those counties are rural in character and are sparsely populated. Because there are fewer appeals taken from judgments entered by the 33rd District Court than practically any other district within the Third Supreme Judicial District, we think it a fair conclusion that the amount of civil litigation within the district is moderate.

This Court recognizes that parts of respondent's court days may be consumed by travel between county seats within the 33rd Judicial District. We also know that there is no time to dictate or transcribe notes during the time a trial of a cause is in progress. Nevertheless, we recognize that the services of a reporter are not requested by the parties in many hearings. We also know that many "firm" trial settings break down and that some causes are settled at the last minute. We are not persuaded by respondent's presentation...