The Supreme Court of Texas recently denied review in a case our firm handled concerning an appealing party’s obligation to order hearing and trial transcripts. The bottom-line result of that denial is to entrench a potential trap for trial lawyers under the Texas Rules of Appellate Procedure.
Rule 34.6(f) of the appellate rules provides that an appellant is entitled to a new trial due to a lost or destroyed transcript so long as the appellant made a timely request for the transcript and was without fault in its loss or destruction (of course, the transcript also must be necessary to the appeal). Rule 34.6(b)(1) provides that a request for a transcript is timely if made at or before the time for perfecting appeal (normally 30 days after entry of judgment). The rule seems to establish a simple timeline—an appealing party who files notice of appeal and requests the transcript at the same time has met all requirements under the rule. But not so fast . . . .
Section 52.046(a)(4) of the Texas Government Code, which regulates court reporters, requires an official court reporter to preserve notes of proceedings for only three years after they were taken. This three-year period runs from the time the notes were taken – not from the conclusion of the case.
A potential conflict between the rules arises most in at least two scenarios. First, imagine a case where some type of evidentiary hearing occurs at the outset of a case on a motion subject to later appeal, and the case then is litigated for more than three years. This is not at all uncommon (think, for example, of a venue hearing). Second, imagine a case in which the trial is completed but entry of judgment is delayed for more than three years. This may sound, far-fetched but it was precisely what happened in our case. In both scenarios, the court reporter would be entitled to destroy notes from the proceedings under the government code. Yet the appellate rules would suggest that the appealing party has made a timely request by requesting the record when the notice of appeal is filed. How do courts resolve the apparent contradiction? Is an appellant in these scenarios entitled to a new trial based on the destroyed record?
In 1983, the Texas Supreme Court held that an appellant who does nothing to preserve a court reporter’s notes within the three-year period is not without fault in the destruction of those notes and records, and thus is not entitled to a new trial based on their absence. Piotrowski v. Minns, 873 S.W.2d 368 (Tex. 1994).
In our case, we asked the Court to reconsider that earlier decision in light of intervening changes in the appellate rules. The court requested merits briefing but ultimately denied review.
The net effect of this decision is that trial lawyers must be vigilant in protecting the record. During pendency of proceedings that last longer than three years, if there is any possibility that the transcript of a hearing may ultimately be necessary on appeal, the trial lawyers should take affirmative steps to ensure the availability of those transcripts.