In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-13-0064-CV
________________________
BENJAMIN ALLEN BENGE, APPELLANT
VS.
ROBERT N. HARRIS AND KARI L. IMLER-HARRIS, APPELLEES
On Appeal from the 69TH District Court
Sherman County, Texas
Trial Court Cause No. 5035, Honorable Ron Enns, Judge Presiding
March 19, 2013
ORDER OF ABATEMENT AND REMAND
Before Quinn, C.J., and Campbell and Pirtle, JJ.
On May 11, 2012, Appellees, Robert N. Harris and Kari L. Imler-Harris, filed a
petition to terminate the parental rights of Appellant, Benjamin Allen Benge, to his child,
A.M.I-H. 1 On October 23, 2012, the trial court signed an Order of Termination, and on
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To protect the child=s privacy, we refer to her by her initials. See TEX. FAM. CODE ANN. ' 109.002(d)
(W EST SUPP. 2012).
November 13, 2012, Appellant timely filed a Notice of Appeal. 2 The filing of a notice of
appeal by any party invokes the appellate court’s jurisdiction over all parties to the trial
court’s judgment or order appealed from. TEX. R. APP. P. 25.1(b).
Appeals in parental termination cases are governed by the rules of appellate
procedure for accelerated appeals. TEX. R. APP. P. 28.4(a)(1). In an accelerated
appeal, the appellate record, including the reporter’s record, is due within 10 days after
the judgment being appealed is signed. TEX. R. APP. P. 35.1(b). Where a reporter
requests an extension of time to file the reporter’s record, the extension or cumulative
extensions granted must not exceed 30 days, absent extraordinary circumstances. TEX.
R. APP. P. 28.4(b)(2). Furthermore, the restrictions on preparation of a reporter’s record
found in section 13.003 of the Texas Civil Practice and Remedies Code do not apply to
an appeal from a parental termination case. TEX. R. APP. P. 28.4(b)(3).
Pending before this Court is the affidavit of Shelly C. Burnett, Official Court
Reporter of the 69th District Court, wherein she alleges that she is unable to file the
reporter’s record in the above-styled and numbered cause because Appellant has not
paid or made arrangements to pay for the record. She further alleges that she filed a
Contest of Affidavit of Inability to Pay Costs on March 5, 2013. From the clerk’s record
already filed we note that Appellant has filed affidavits of indigency in this proceeding on
four separate occasions: August 21, 2012, January 4, 2013, January 30, 2013, and
February 8, 2013. Even if Ms. Burnett’s contest were to be meritorious, it would have
been subject to denial as untimely. See TEX. R. APP. P. 20.1(e) (providing that a contest
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The deadline for filing the notice of appeal was Monday, November 12, 2012. However, that date was a
legal holiday and the deadline was extended to November 13, 2012. TEX. R. APP. P. 4.1(a).
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to indigence must be filed within 10 days after the date when the affidavit of indigency
was filed in the trial court). Unless a contest is timely filed, an affidavit of indigency shall
be deemed true, and the party allowed to proceed without the advancement of costs.
TEX. R. APP. P. 20.1(f).
Because the reporter’s record is currently past due and any extension this Court
could grant pursuant to Rule 28.4(b)(2) would have already elapsed, we abate this
appeal and remand the cause to the trial court for further proceedings. Upon remand,
the trial court is directed to use whatever means available to determine whether
Appellant is entitled to a free reporter’s record and, if so, to ensure the filing of the
appellate record on or before April 2, 2013, by ordering the court reporter to immediately
commence preparation of the reporter’s record and, if necessary, by making
arrangements for a substitute reporter. See TEX. R. APP. P. 28.4(b).
Upon the filing of the reporter’s record, Ms. Burnett is ordered to notify the trial
court, in writing, of the filing. Should Ms. Burnett timely file the reporter’s record in
accordance with the order of the court, the trial court need not take any further action
other than to cause a supplemental clerk’s record to be filed with the Clerk of this Court
by April 9, 2013, containing the court’s order and the reporter’s notice.
Should the trial court find Appellant not to be entitled to a free reporter’s record,
then the court shall file findings of fact and conclusions of law supporting that decision
on or before April 2, 2013, and cause a supplemental clerk’s record to be filed with the
clerk of this Court by April 9, 2013, containing those findings and conclusions.
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It is so ordered.
Per Curiam
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