Michael Francis Palma v. Houston Independent School District and Linebarger, Goggan, Blair and Sampson, LLP

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER

Appellate case name: Michael Francis Palma v. Houston Independent School District, for
itself and on behalf of Harris County Educational District

Appellate case number: 01-07-00898-CV

Trial court case number: 2006-14382

Trial court: 61st District Court of Harris County

On September 10, 2012, appellant filed a “Motion to Have the Record Completed.” In
his motion, appellant requested that the reporter’s record be completed by inclusion of transcripts
from January 12, 2007 and February 2, 2007, for which the court reporter “was present” “[t]o the
best of [appellant’s] recollection.” Appellant also requested supplementation of the clerk’s
record and included a list of “some of the documents that are missing,” consisting of a number of
documents and “missing exhibits” MP1 through MP16, MP16A through MP16F, MP17 through
MP22, and MP22A.
On September 11, 2012, the court reporter filed an information sheet informing this Court
that no reporter’s record exists for January 12, 2007 or February 2, 2007.
On October 18, 2012, we dismissed appellant’s motion as moot, because appellant had
already filed his brief and because rules 34.5(c) and 34.6(d) allow any party to direct the trial
court clerk or court reporter to supplement their respective records without necessity of a court
order. See TEX. R. APP. P. 34.5(c)(1), 34.6(d).
On October 30, 2012, appellant filed another motion in this Court, ostensibly directed to
the Supreme Court of Texas, requesting that the record be completed. In his motion, appellant
states that the “court reporter was notified BOTH [sic] by telephone AND [sic] by sending him
via email the motion to include the above dates in the record” and that “[a]s to notifying the
clerk, appellant did include in his Appendices’ [sic], as stated above, some of the documents that
were missing from the court record showing conclusively that the record was incomplete and are
also included herein.”
The documents appellant complains of as missing from the clerk’s record do not fall
within rule 34.5(a)(1) through 34.5(a)(12). 1 Therefore, to be included in the clerk’s record, the

1 Appellant does request one notice of appeal and one request for findings of fact and
conclusions of law. See TEX. R. APP. P. 34.5(a)(6), (7). However, the requested notice of
documents would have to be designated by a party to the proceedings for inclusion in the clerk’s
record. See TEX. R. APP. P. 34.5(a)(13). To date, appellant has not shown that he ever
designated the enumerated documents for inclusion in the original clerk’s record or requested a
supplemental clerk’s record containing said documents. 2 See TEX. R. APP. P. 34.5(a)(13), (c)(1).
Further, the court reporter has informed this Court that there is no record of the hearings
for which appellant seeks the transcripts, and appellant himself, in the “Motion to Have the
Record Completed,” stated only that, “to the best of [appellant’s] recollection,” the court reporter
was present. Thus, there are no additional reporter’s records with which the appellate record
could be supplemented. See TEX. GOV’T CODE ANN. § 52.046(a) (West 2005); see also TEX. R.
APP. P. 34.6(f).
Accordingly, we DENY appellant’s “Motion . . . for a Complete Record.”
Appellee’s brief, if any, remains due November 9, 2012. See TEX. R. APP. P. 38.6(b).

Judge’s signature: /s/ Justice James Sharp, Jr.
 Acting individually  Acting for the Court

Date: November 5, 2012

appeal is from an interlocutory order and the notice of appeal from the final judgment
appears in the record, and the request for findings of fact and conclusions of law pertains
to a “Tax Master’s recommendation” that has not been designated for inclusion in the
record. In addition, the August 1, 2007 “HISD First amended answer to
Counterclaimants First Amended Petition” was not a live pleading at the time of the trial,
as it had been superseded by a second amended answer. See TEX. R. APP. P. 34.5(a)(1).
Accordingly, these documents are not documents required to be included in the record by
Rule 34.5(a)(1), (6), or (7).

2 The only document filed with this Court showing a request for documents to be included
in the clerk’s record was filed by appellant on October 15, 2007 and shows that appellant
only requested the following: the first amended petition; the September 21, 2007
judgment; the October 15, 2007 notice of appeal; the October 15, 2007 affidavit of
indigence; the request for preparation of the reporter’s record; the request for preparation
of the clerk’s record; the docket sheet; the bill of costs; the court’s charge; and the jury’s
verdict.