dissenting.
On direct appeal in this cause, appellant raised only one point of error contending he was entitled to a reversal of his conviction and a new trial because the statement of facts from the no contest plea hearing had been destroyed or lost through no fault of his own. The court of appeals reversed appellant’s conviction, pursuant to Tex.R.App.Proc. 50(e), because of his inability, under the circumstances of this case1, to obtain the statement of facts. Culton v. State, 818 S.W.2d 889, 842 (Tex.App.—Houston [1st Dist.] 1991). We granted the State’s petition for discretionary review to determine whether the court of appeals erred in holding that appellant did not have the burden of contacting, in writing, the court reporter of the 176th District Court for purposes of preparing a portion of the appellate record.
After further review of the this cause, it is my belief that the State’s petition was improvidently granted as I agree with the court of appeals’ opinion. See Tex.R.App.Proc. 202(k). I, therefore, dissent to the majority opinion. At the very least, there is no requirement that the appellant exercise due diligence in attempting to obtain the missing portion of the record as the majority so holds today. Maj. op. at p. 515.
I also write, however, to point out that this case presents an additional problem which neither party has briefed or argued. Section 52.046(a)(4) of the Government Code, entitled General Powers and Duties, provides:
(a) On request, an official court reporter shall: ...
(4) preserve the notes for future reference for three years from the date on which they were taken[.] (emphasis added)
In this case, the State did not move to adjudicate appellant’s guilt until more than three years after appellant’s no contest hearing. Apparently, the court reporter was within her authority, pursuant to § 52.046(a)(4), to destroy the notes from the no contest plea. Under Tex.R.App. Proc. 50(e), an appellant is entitled to a new trial if the court reporter’s notes are lost or destroyed without appellant’s fault. The possible interplay of these two provisions presents this Court with some unanswered questions, viz: (1) is the appellant entitled to a new trial under Rule 50(e) when the court reporter destroys his or her notes pursuant to § 52.046(a)(4); and (2) how do we reconcile these two provisions.
Because I disagree with the majority’s resolution of the State’s petition, I dissent.
. The court of appeals stated that "because the entire record of the case was transferred to the 248th from the 176th, and given the judge’s specific, unlimited order, we find timely notice to the official court reporter of the 248th District Court was adequate as timely notice to the court reporter of the 176th District Court.” Culton, 818 S.W.2d at 842.