dissenting.
I respectfully dissent.
The majority holds that the absence of any showing in the record that required notices were given, combined with the un-contradicted assertion by an appellant in the appellate court that it did not get required notices, is sufficient to establish an “error apparent on the face of the record.”
There is currently no statute or rule requiring anything to be placed in the trial court’s file to affirmatively show that a required notice of intent to dismiss or a notice of dismissal was actually sent to the attorneys of record. In a case such as this, I do not agree that the lack of evidence in the record that notice was given, which evidence is not required to be in the record, constitutes any proof that notice was not given.1
I do believe it would be an improvement for the Texas Rules of Procedure to be amended to require the court clerks to place in the case files proof that notices, required to be sent under the rules, actually are sent.
In my opinion, this case is distinguishable from the cases relied on by the majority in that there is no “missing” certificate of service on an attorney’s pleadings, and there was no motion for new trial, with either affidavits or testimony, in the trial *24court. Rather here, appellant asserts for the first time that it did not get notice, in papers filed in this court, attaching an affidavit from the head clerk of the trial court to its application for writ of error as proof that it never was sent the required notices. I express no opinion as to whether the affidavit could support relief for appellant in some other type of proceeding; however, in this writ of error proceeding, even if the appellee does not contest the truth of appellant’s assertions, we cannot consider the affidavit because it was not before the trial court prior to final judgment, and in fact was not even part of the record brought up from the trial court for our review. The affidavit is clearly not a matter appearing “on the face of the record” and we are not authorized to consider it. See Tankard-Smith, Inc. Gen. Contractors v. Thursby, 663 S.W.2d 473, 476 (Tex.App.-Houston [14th Dist.] 1983, writ ref’d n.r.e.).
I would grant the motion for rehearing and affirm the judgment of the trial court.
. This case is distinguishable from a writ of error appeal involving the absence of a proper officer’s return of citation in the file, for example. There is a specific rule requiring the return to be filed in the case before default judgment is granted, and therefore “error is apparent on the face of the record” when a proper officer’s return is absent from the court's file. See TEX.R. CIV.P. 107; United States ex rel. Adm’r of Small Business Admin. v. Charter Bank, 694S.W.2d 16, 18 (Tex.App.-Corpus Christi 1985, no writ).