Uptmore v. Jones
| Decision Date | 13 April 1994 |
| Docket Number | No. 04-94-00066-CV,04-94-00066-CV |
| Citation | 875 S.W.2d 422 |
| Parties | James H. UPTMORE, Appellant, v. William Ray JONES, Jr., et al., Appellees. |
| Court | Texas Court of Appeals |
Richard H. Ihfe, Teresa J. Waldrop, Ihfe & Associates, P.C., San Antonio, for appellant.
William A. Jeffers, Jr., Steven B. Treu, Jeffers, Brook, Kraeger & Gragg, San Antonio, for appellees.
Before CHAPA, C.J., and BUTTS and LOPEZ, JJ.
ON APPELLANT'S MOTION TO EXTEND TIME FOR FILING RECORD AND
APPELLANT'S BRIEF
Appellant's case was tried in the 57th Judicial District Court of Bexar County. That court is operating under a 1990 supreme court order adopting "Rules Governing the Procedure for Making a Record of Court Proceedings in Bexar County by Electronic Recording." Appellant contends that he was unaware that special deadlines apply to the filing of an electronically recorded statement of facts, and he requests that we file the tapes in spite of the fact that they were tendered late and his motion for extension of time to file them is late.
The Rules Governing the Procedure for Making a Record of Court Proceedings in Bexar County by Electronic Recording (R.ELEC.REC.) (see appendix for text of rules) require the statement of facts, which consists of the cassette recording, typewritten and original logs certified by the court recorder, and the exhibits (R.ELEC.REC. 3), to be filed with the appellate court within fifteen days of the perfection of the appeal. R.ELEC.REC. 4. The judgment in this case was signed on September 26, 1993. A motion for new trial was timely filed on October 26, 1993. Appellant timely filed his appeal bond on December 6, 1993. A conventional statement of facts would be due by January 25, 1994. However, because this case was tried under the pilot program for electronically recorded statements of facts, the statement of facts was due by December 21, 1993: fifteen days from the date the appeal was perfected. The tapes were not received in this court until January 4, 1994. The rules of appellate procedure continue in force when not inconsistent with the Rules Governing the Procedure for Making a Record of Court Proceedings in Bexar County by Electronic Recording. R.ELEC.REC. 11; National Union Fire Ins. Co. v. Ninth Court of Appeals, 864 S.W.2d 58, 59 n. 2 (Tex.1993). Texas Rule of Appellate Procedure 54(c) requires a motion for extension of time to file the statement of facts to be filed with this court within fifteen days of the date the statement of facts is due, 1 in this case, it was due by January 5, 1994. Appellant, believing he had 120 days to file the statement of facts under Texas Rule of Appellate Procedure 54, did not file his motion for extension of time until February 17, 1994. While the motion is timely for a conventional statement of facts, it was over six weeks late for an electronically recorded one.
We are without authority to accept a late statement of facts in the absence of a timely filed motion for extension of time. TEX.R.APP.P. 54(c); B.D. Click Co. v. Safari Drilling Corp., 638 S.W.2d 860, 862 (Tex.1982).
Appellant argues that he was unaware that a rule existed outside of the Texas Rules of Appellate Procedure, the Texas Fourth Court Appellate Rules, or the Local Rules Governing Bexar County that affected the filing deadlines for the statement of facts. He argues that the Rules Governing the Procedure for Making a Record of Court Proceedings in Bexar County by Electronic Recording were not published by the supreme court or the 57th district court. We acknowledge that the supreme court has not published the rules and that they are not to be found in the Texas Rules of Appellate Procedure, our local rules, or the Bexar County local rules. The lack of publication has created several problems for appellants in those counties participating in the pilot program. See, e.g. National Union Fire Ins. Co. v. Ninth Court of Appeals, 864 S.W.2d 58 (Tex.1993) (); Fazio v. Hames, 866 S.W.2d 267 (Tex.App.--Dallas 1993, n.w.h.) (late motion for extension of time for statement of facts); Bell v. Hair, 832 S.W.2d 53 (Tex.App.--Houston [14th Dist.] 1992, n.w.h.) (late filed statement of facts); Rowlett v. Colortek, Inc., 741 S.W.2d 206 (Tex.App.--Dallas 1987, writ denied) (); Darley v. Texas Uvatan, Inc., 741 S.W.2d 200 (Tex.App.--Dallas 1987, n.w.h.) (timeliness of transcription of cassette tapes appended to brief).
The legislature has delegated the power to promulgate rules and regulations for practice in the supreme court and other courts in this state to the Supreme Court of Texas. TEX.GOV'T CODE ANN. §§ 22.003(a), (b) (Vernon 1988). The supreme court has exercised that authority in adopting the Rules Governing the Procedure for Making a Record of Court Proceedings in Bexar County by Electronic Recording. 2 The Government Code sets out a procedure to be followed when amending or creating rules of civil procedure. That statute provides:
The clerk of the supreme court shall file with the secretary of state the rules or amendments to rules promulgated by the supreme court under this subsection and shall mail a copy of those rules or amendments to each registered member of the State Bar of Texas not later than the 60th day before the date on which they become effective.
TEX.GOV'T CODE ANN. § 22.004(b) (Vernon Supp.1994). The statute further provides:
The rules of practice and procedure in civil actions shall be published in the official reports of the supreme court. The supreme court may adopt the method it deems expedient for the printing and distribution of the rules.
Id. § 22.004(d) (Vernon 1988). Traditionally, amendments and new rules have been published in the State Bar Journal, thus advising each registered member of the state bar of the changes.
The Rules Governing the Procedure for Making a Record of Court Proceedings in Bexar County by Electronic Recording have not been printed in the State Bar Journal or sent to each registered member of the State Bar of Texas. The obvious requirement of such publication is to prevent the use of "secret" rules known only to a handful of attorneys. Without such publication an attorney is left to question each court before which he appears whether any unpublished or secret rules apply to that court. Diligent research does an attorney in that case no good. 3 The Rules Governing the Procedure for Making a Record of Court Proceedings in Bexar County by Electronic Recording have not been printed in the State Bar Journal or sent to each registered member of the State Bar of Texas.
We do not think it was the intention of the supreme court to leave an attorney in the dark concerning such a devastating rule as shortening the filing deadlines. The supreme court has, in the past, held that its policy is "to be liberal in the application of its rules until the bench and bar have had reasonable time to become familiar with [newly adopted] rules." See Glenn v. McCarty, 130 Tex. 641, 110 S.W.2d 1148, 1150 (1937). However, we are not in a position to be so liberal. See B.D. Click Co. v. Safari Drilling Corp., 638 S.W.2d at 862.
The publication rules of sections 22.004(b) and (d) do not contain any provision negating the effect of a new rule or amendment should publication not occur. The rules do not provide that the new or amended rules shall be effective only after appropriate notification. Subsection (b) of that statute requires only that notice be sent 60 days prior to the effective date of the new or amended rule. Thus, we must hold that the publication requirements are mere ministerial acts which do not affect the enforcement of the new rules regarding electronically recorded statements of facts.
We reluctantly hold that regardless of the lack of publication the rule and shortened time limits applicable to this pilot program are enforceable. With no timely filed motion for extension of time we are without authority to enlarge the time to file the electronically recorded statement of facts. TEX.R.APP.P. 54(c); B.D. Click Co. v. Safari Drilling Corp., 638 S.W.2d at 862.
Appellant urges that the language contained in rule 4 of the Rules Governing the Procedure for Making a Record of Court Proceedings in Bexar County by Electronic Recording places the burden on the court recorder to timely file the electronic statement of facts, and he should not be punished for the recorder's omission. He also argues that the Rules Governing the Procedure for Making a Record of Court Proceedings in Bexar County by Electronic Recording are inconsistent with the Texas Rules of Appellate Procedure, which places the burden on the appellant to ensure that an adequate record is presented, and therefore, the Rules Governing the Procedure for Making a Record of Court Proceedings in Bexar County by Electronic Recording must bow to the Texas Rules of Appellate Procedure. Rule 53 of the appellate rules places the duty squarely on appellant to cause the statement of facts to be filed with the clerk of this court. TEX.R.APP.P. 53(k). Rule 50 similarly places the burden on the appellant to see that a sufficient record is presented to this court. TEX.R.APP.P. 50(d). Local rule 4 provides, "The court recorder shall file the statement of facts with the court of appeals ... (emphasis added)." R.ELEC.REC. 4. Rule 4 does not discharge appellant from the duty of seeking extensions of time should they become necessary. It is appellant's duty to determine whether and when such requests are necessary. We agree with the Bell court that the supreme court did not intend to shift the burden of presenting a record on appeal from appellant. Bell v. Hair, 832 S.W.2d at 55. Appellant retained the burden to timely seek an extension of time in which to file the statement of facts. It remained his burden to check with the court recorder to coordinate the filing of the tapes with any...
To continue reading
Request your trial
-
Uptmore v. Fourth Court of Appeals
...TEX.R.APP.P. 54. The court of appeals nevertheless held that the statement of facts was not timely filed and could not be considered. 875 S.W.2d 422. Within the time in which the appellate record must be filed under Rule 54, relator tendered not only the recordings of the proceedings, toget......