Alief Independent School District v. Anthony Velazquez ( 2022 )

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON ORDER Appellate case name: Alief Independent School District v. Anthony Velazquez Appellate case number: 01-22-00444-CV Trial court case number: 2021-42160 Trial court: 80th District Court of Harris County On October 11, 2022, the First Supplemental Clerk’s Record was filed. The correspondence in the First Supplemental Clerk’s Record indicated the following was attached: Image No: 100195815; Exhibit 2 to Alief ISD’s First Amended Plea to the Jurisdiction (delivered via courier on February 3, 2022, as a USB flash drive, as requested by the court clerk and on October 4, 2022, as a document containing a link to video). The First Supplemental Clerk’s Record only contained a non-functioning “video link” and not the original USB flash drive. On December 9, 2022, this Court requested that the district clerk file the USB flash drive that contains Exhibit 2 to Alief ISD’s First Amended Plea to the Jurisdiction within five days. On December 19, 2022, the district clerk filed a Second Supplemental Clerk’s Record that stated the trial court clerk is “unable to locate documents/Video USB Flash Drive relating to Exhibit 2 in our case file.” Texas Rule of Appellate Procedure 34.5 addresses the procedure when the clerk’s record is lost or destroyed. It states: If a filing designated for inclusion in the clerk's record has been lost or destroyed, the parties may, by written stipulation, deliver a copy of that item to the trial court clerk for inclusion in the clerk's record or a supplement. If the parties cannot agree, the trial court must—on any party's motion or at the appellate court's request—determine what constitutes an accurate copy of the missing item and order it to be included in the clerk's record or a supplement. TEX. R. APP. P. 34.5(e). Accordingly, we abate the appeal and remand to the trial court. If the parties can agree by stipulation about the contents of the missing flash drive, they may deliver a copy of the flash drive or the contents thereof to the trial court clerk for inclusion in the clerk’s third supplemental record. If the parties cannot agree by stipulation within fourteen days of the date of this order, the trial court must determine what constitutes an accurate copy of the missing item and order it to be included in the third supplemental clerk’s record. TEX. R. APP. P. 34.5(e). 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 third supplemental clerk’s record is filed with the Clerk of this Court or upon further order from this Court. It is so ORDERED. Judge’s signature: /s/ Veronica Rivas-Molloy Acting individually Date: December 22, 2022