B.T. Health Care, Inc., D/B/A Bender Terrace v. Thurman Honeycutt, as and Representative of the Estate of Ronald Honeycutt

NO. 07-04-0084-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

SEPTEMBER 10, 2004



______________________________



B. T. HEALTH CARE, INC., D/B/A BENDER TERRACE, APPELLANT

V.

THURMAN HONEYCUTT, AS EXECUTOR AND REPRESENTATIVE

OF THE ESTATE OF RONALD HONEYCUTT, APPELLEE



_________________________________

FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2002-516,937; HONORABLE MACKEY HANCOCK, JUDGE

_______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.

ON ORDER OF ABATEMENT AND REMAND

Appellant B. T. Health Care, Inc., d/b/a Bender Terrace, is appealing a judgment from a jury trial. The judgment was signed on December 17, 2003. The trial court clerk's record was filed on April 22, 2004 and a supplemental clerk's record was filed on April 29, 2004 and May 4, 2004. The court reporter's record originally was due to be filed on April 15, 2004.

On April 16, 2004, the court reporter requested an extension of time and was granted until May 17, 2004. On May 26, 2004, the court reporter requested a second extension of time and was granted until June 21, 2004. On July 20, 2004 this Court issued a letter asking for a status report to be filed by the court reporter, Deborah Reeves. The Court directed the status report be filed no later than Friday, July 30, 2004. On August 12, 2004, the court reporter responded by filing a 3rd motion for extension of time, without specifying a date to which the extension was required, but stating that she would try to complete the record by September 1, 2004. The record has not been filed and we have had no further contact by the court reporter.

The trial court and an appellate court are jointly responsible for ensuring that an appellate record is filed. Tex. R. App. P. 35.3(c). Among other duties, the trial court must "help ensure that the reporter's work is timely accomplished by setting work priorities," and may appoint a deputy reporter when the official court reporter is unable to perform the duties. Tex. R. App. P. 13.3 and 13.5.

Accordingly, we abate the appeal and remand the cause to the 99th District Court of Lubbock County for further proceedings. Upon remand, the trial court shall immediately cause notice of a hearing to be given and, thereafter, conduct a hearing to determine:

  • whether Deborah Reeves is unable to prepare and file the reporter's record within 30 days from the date of hearing; or
  • whether the trial court should appoint a deputy reporter to prepare and file the reporter's record within 30 days from the date of hearing.

The trial court shall cause the hearing to be transcribed. The trial court also shall enter any and all orders necessary to assure the timely completion of the reporter's record in this appeal. So too shall it prepare and file its findings and orders and cause them to be included in a supplemental clerk's record. In addition, the trial court shall cause the transcription of the hearing to be included in a supplemental reporter's record. Both the supplemental clerk's record and supplemental reporter's record shall be submitted to the Clerk of this Court by September 28, 2004.

It is so ordered.

Per Curiam







if"'>            Appellant Albert V. Jessep, acting pro se, has pursued in the trial court a subsequent application for writ of habeas corpus, pursuant to article 11.072 of the Texas Code of Criminal Procedure.1  His first application was denied by the trial court, and we affirmed its denial.2  Appellant filed his subsequent application on October 1, 2009, and the trial court signed an order November 3, 2009, denying the subsequent application.  Appellant has filed notice of appeal from the order.

            The clerk's record for this appeal has not been filed. The trial court clerk has requested an extension of time to prepare the record, advising us that appellant has not made arrangements to pay for the record.  The trial court clerk also has expressed uncertainty over the necessary contents of the record.  Along with his subsequent application for writ of habeas corpus filed in the trial court on October 1, appellant submitted an affidavit asserting his indigence.  In a motion filed in this Court, and in a response to the clerk’s request for an extension, appellant has asserted his entitlement to a free record.  See Tex. R. App. P. 20.2, 31.1.

            Although appellant’s assertions demonstrate some misunderstanding of the procedures necessary to obtain a free appellate record, to expedite the appeal in these peculiar circumstances,3 we will exercise our authority under Rule of Appellate Procedure 2, and order the preparation of a clerk’s record for the appeal of the trial court’s order denying appellant’s subsequent application for writ of habeas corpus.  Tex. R. App. P. 2.  The trial court clerk is directed to prepare and submit two clerk’s records containing the papers appellant filed in cause numbers 51,224-A and 51,225-A on October 1, 2009, and all papers filed in those causes since that date.  The records shall be prepared without cost to appellant and shall be filed with this Court’s clerk no later than February 11, 2010.  The trial court clerk’s request for an extension to submit the record is granted to that date, but is otherwise denied.  Appellant’s motion seeking a free record is granted.  All other relief requested in appellant’s Motion to Permit Appellant to Proceed In Forma Pauperis on Subsequent Writ of Habeas Corpus is denied.

            It is so ordered.

 

                                                                                                Per Curiam

 

Do not publish.

 

 

           

 



     1 Tex. Code Crim. Proc. Ann. art. 11.072, sec. 9 (Vernon 2003) (addressing subsequent applications).                       

     2  Appellant seeks habeas corpus relief from orders imposing community supervision in two possession of child pornography cases, trial court cause numbers 51,224-A and 51,225-A. See Ex parte Jessep, 281 S.W.3d 675 (Tex.App.–Amarillo 2009, pet. ref’d).

     3  Our judgment and mandate in his appeal of the denial of appellant’s original habeas corpus application indicated appellant proceeded “in forma pauperis.”  It appears from the information before us that appellant’s financial condition has not changed significantly.