Darley v. Texas Uvatan, Inc.

OPINION ON MOTION FOR REHEARING

Our original opinion holds that none of the provisions of Rule 53 are rendered ineffective by the January 8, 1986 order of the Texas Supreme Court pertaining to tape recorded proceedings. In his motion for rehearing, Darley questions the correct*307ness of our holding on this point. Darley contends that Paragraph 4 of the order directly conflicts with subsection (a) of this rule and cancels its effectiveness because of the exception appearing in Paragraph 11 of the order. Paragraph 11 of the order provides that all rules governing procedure in civil actions shall continue to apply except to the extent inconsistent with the order. According to Darley, Paragraph 4 mandates, in pertinent part, that the court reporter shall file the statement of facts with the court of appeals. Darley argues that by placing this duty on the court reporter when trial proceedings are tape recorded, the Supreme Court relieved appellants from the request obligation of Rule 53(a). Our opinion denied relief to Darley because of his failure to meet this Rule 53(a) obligation.

We disagree with Darley’s present contention. The obligation of the court reporter to file the statement of facts is not inconsistent with the fallback duty of the appellant to supervise and police the court reporter's compliance. A comparable situation exists with respect to the transcript. While the clerk has the duty of preparing the transcript and filing it with the court of appeals, the appellant is burdened with the obligation of ascertaining that it is prepared and filed in a form sufficient to present to the appellate court those errors sought to be reviewed. See Rules 50(d) and 51(b). Similarly, with respect to the statement of facts in appeals such as this, the responsibilities of the court reporter and the appellant are joint, not different. See Rule 53(k). Accordingly, Darley’s motion for rehearing is overruled.