





Chase Oil v. Dearen (F\C\R)                                         






PETITION FOR WRIT OF MANDAMUS GRANTED
OCTOBER 25, 1990

NO. 10-90-164-CV

IN THE
COURT OF APPEALS
FOR THE
TENTH DISTRICT OF TEXAS
AT WACO

* * * * * * * * * * * * *

          CHASE OIL AND GAS LTD. - HILL PIPELINE,
          ET AL,
                                                                                            Relators
          v.

          MS. SHERRY DEAREN, FORMER OFFICIAL 
          COURT REPORTER, 13TH JUDICIAL DISTRICT
          COURT, NAVARRO COUNTY, TEXAS,
                                                                                            Respondent

* * * * * * * * * * * * *

 ORIGINAL PROCEEDING

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O P I N I O N

* * * * * *
          This original proceeding was initially filed by Chase Oil and Gas Ltd.-Hill Pipeline,
seeking a writ of mandamus against Respondent Sherry Dearen, the official court reporter for the
13th District Court of Navarro County at the time the underlying appeal arose.   The underlying
appeal is pending in this court as No. 10-90-009-CV, styled Chase Oil and Gas Ltd.- Hill Pipeline
and Eli Rebich v. Mexia Gas Co..  Eli Rebich, also an appellant, was granted permission to join
in Chase Oil's petition for a writ of mandamus because of their common interest in compelling
Dearen to prepare and deliver a statement of facts pertaining to the appeal.
          The statement of facts was originally due to be filed in this court on January 17, 1990. 
Chase Oil and Rebich had timely requested Dearen on December 18, 1989, to prepare the
statement of facts.  Dearen filed an affidavit on January 18, 1990, in conjunction with appellants'
first motion for an extension of time to file the record, stating that she would be unable to
complete the statement of facts until March 5.  Her purported excuse for delay was a recently
discovered malfunction in the equipment for making computerized transcriptions from her notes,
which had apparently delayed transcription of some pre-trial matters.  She also cited her
continuing workload as an official court reporter.  
          Dearen filed a second affidavit on April 17, attached to appellants' third motion for an
extension of time, in which she indicated that the statement of facts could not be available until
May 15.  She stated in the affidavit that she was no longer the official court reporter for the 13th
District Court, but was now employed full time by Texas State Technical Institute as a lecture
transcriber for the school's deaf students.  Dearen indicated that, when she left her position as
official court reporter, she had a substantial backlog of civil and criminal cases for which
statements of fact had been requested and on which she was continuing to work diligently in the
evenings and on weekends.  Her affidavit reflects that she had employed another court reporter
to assist her in "cleaning up" this backlog.  Nevertheless, Dearen claimed that she had completed
200 pages of the statement of facts as of April 17.     
          Chase Oil and Rebich filed six motions for extensions of time, making the record due
September 13.  The sixth motion was granted with the notation that no further extensions would
be entertained.  Chase Oil then sought permission on August 24 to file a petition for a writ of
mandamus to compel Dearen to produce a complete statement of facts.  Permission was granted
and a hearing on the petition was set for September 13.  However, upon being informed that
Dearen had forwarded the statement of facts to this court on September 12, Chase Oil agreed to
dismiss the petition.  After reviewing the statement of facts prepared by Dearen, Chase Oil
contends that it was incomplete, contained numerous errors, and omitted exhibits offered or
introduced in evidence at the trial.
          On October 1, Chase Oil again sought permission to file a petition for a writ of mandamus
against Dearen, and also filed a motion to supplement the statement of facts.  Chase Oil and
Rebich were granted extensions of time to November 12 in which to file briefs in the underlying
appeal.  All motions for extensions of time and accompanying exhibits are either attached to the
second petition for mandamus or incorporated therein by reference.  Also attached to the petition
is a copy of a letter from Chase Oil's counsel to Dearen, dated September 25, specifically setting
forth the portions of omitted transcription of various pre- and post-trial hearings and a full
description of each exhibit omitted from the statement of facts.  The letter again requested that
Dearen prepare and furnish a complete statement of facts to avoid further proceedings in the court
of appeals.  An affidavit of the Navarro County District Clerk was filed in this court on October
17, in which she states that she made a diligent search of the court's records in the underlying
cause, but was unable to locate any of the trial exhibits offered or entered into evidence either at
the trial or by a bill of exception.
          A hearing on the petition was held in this court on October 18.  Neither Dearen nor her
counsel appeared at the hearing. 
          A writ of mandamus will issue to compel a public official to perform a non-discretionary
duty when the relator has a clear right to the performance of that duty.  Vondy v. Commissioners
Court of Uvalde Cty., 620 S.W.2d 104, 109 (Tex. 1981).  An official court reporter, under the
supervision of the presiding judge, is obligated to make a complete record of the evidence when
requested by the court or by any party to the case.  TEX. R. APP. P. 11(a)(1).  The court reporter
is further required to file all exhibits with the clerk and to prepare official transcripts of all such
evidence or other proceedings.  Id. at 11(a)(3),(4).  The official court reporter has the clear duty
to furnish the trial record, as certified by the court reporter, upon proper request.  Id. at 53(a),(f). 
A court reporter's duty to prepare a statement of facts is as important as any other of the reporter's
professional duties and may, under some circumstances, take precedence over all other duties. 
Wolters v. Wright, 623 S.W.2d 301, 305 (Tex. 1981).  Thus, a writ of mandamus may issue to
compel the court reporter to furnish a statement of facts.  Id.  Just because Dearen is no longer
the official court reporter for the district court does not relieve her of the duty to prepare
statements of fact in those cases in which she participated as an official reporter.  See Loflin v.
Weiss, 605 S.W.2d 377, 380 (Tex. Civ. App.--Amarillo 1980, no writ). 
          Dearen's lack of diligence has prejudiced the parties as well as the legal system itself.  A
complete, accurate statement of facts is essential to the exercise of appellate jurisdiction in this
case.  See Wolters, 623 S.W.2d at 304.  Therefore, to protect the jurisdiction of this court, the
petition for writ of mandamus is granted.  Dearen is directed to prepare and file in this court a
complete, accurate statement of facts in No. 10-90-009-CV, styled Chase Oil and Gas Ltd.- Hill
Pipeline and Eli Rebich v. Mexia Gas Co., by 5 P.M. on November 5, 1990, or the writ will
issue.


                                                                                                                             
                                                                        BOB L. THOMAS
PUBLISH                                                         Chief Justice

[Participating:  Chief Justice Thomas, Chief Justice McDonald (Retired) and Justice James
(Retired)]

#160;              Justice (Retired)

Before Chief Justice Thomas,
      Justice Cummings, and
      Justice  James (Retired)
Affirmed
Opinion delivered and filed April 12, 1995
Do not publish
