Order entered February 19, 2013
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-11-01276-CV
EX PARTE: HAROLD CORNISH
On Appeal from the 256th Judicial District Court
Dallas County, Texas
Trial Court Cause No. X11-555-R
ORDER
Before the Court is appellants’ February 14, 2013 second motion to abate. We GRANT
appellants’ motion only to the extent they seek an extension of time to file their brief. We
ORDER appellants to file their brief on or before March 25, 2013.
On the Court’s own motion, we make the following order:
On October 29, 2011, the district clerk filed a clerk’s record that contained the order
transferring the expunction file to federal court, the notice of restricted appeal, and requests for
the record. By order dated April 25, 2012, we ordered the trial court to make findings of fact
regarding the status of the request for the return of the documents from the federal court. The
trial court’s findings stated the original documents transferred to federal court have been lost or
destroyed, a copy of the file was made prior to the transfer, and the copy of the file is in the
possession of the Dallas County District Clerk’s Office. Accordingly, we ordered Gary
Fitzsimmons, Dallas County District Clerk, to file by May 21, 2012 a clerk’s record containing
the contents of the expunction file.
When the Court did not receive the requested clerk’s record, the Court issued another
order on June 12, 2012 ordering Mr. Fitzsimmons to file the clerk’s record by June 18, 2012. In
response, the Court received a letter from Mr. Fitzsimmons stating that he could not comply with
the Court’s order because contrary to the trial court’s findings, his office did not make a copy of
the file prior to its transfer.
On July 12, 2012, the Court ordered the Honorable Mark Stolz, Judge of the 265th
Judicial District Court of Dallas County, Texas, to conduct a hearing with Mr. Fitzsimmons
present to determine the status of the record and whether the parties could create an agreed
substituted record. We ordered Judge Stolz to make findings of fact and file them in a
supplemental clerk’s record.
After receiving the findings of fact regarding the expunction file, the Court, by order
dated September 25, 2012, ordered Judge Stolz to determine what constitutes an accurate copy of
the missing items in the expunction file and to order them to be included in the clerk’s record.
Judge Stolz determined that the only documents available in this case are the petition for
expunction, the order of expunction, and a copy of the envelope from the Dallas County District
Clerk to the Texas Association of School Boards. A supplemental clerk’s record containing
those three documents was filed on October 11, 2012.
On October 31, 2012, appellants filed a motion to compel explaining that the petition for
expunction contained in the supplemental clerk’s record is missing the third page. By order
dated January 16, 2013, the Court ordered Mr. Fitzsimmons to file a supplemental clerk’s record
containing the complete four-page petition for expunction. As of today’s date, the requested
supplemental clerk’s record has not been filed.
Accordingly, we ORDER Gary Fitzsimmons, Dallas County District Clerk, to certify and
transmit the requested supplemental clerk’s record in this case to the Clerk of the Court of
Appeals, Fifth District of Texas, George Allen, Sr. Courts Building, 600 Commerce Street,
Second Floor, Dallas, Texas 75202 by 5:00 p.m. FEBRUARY 22, 2012.
FAILURE TO FILE THE REQUESTED SUPPLEMENTAL CLERK’S RECORD
BY THE DATE AND TIME HEREIN SET FORTH MAY RESULT IN THE ISSUANCE
OF A SHOW CAUSE ORDER AND/OR A JUDGMENT OF CIVIL AND CRIMINAL
CONTEMPT.
The Court DIRECTS the Clerk of the Court to send a copy of this order by both
electronic transmission and by certified mail to:
Gary Fitzsimmons
Dallas County District Clerk
George L. Allen, Sr. Courts Building
600 Commerce Street, Suite 103
Dallas, Texas 75202
/s/ CAROLYN WRIGHT
CHIEF JUSTICE