             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
      ___________________________
           No. 02-20-00056-CV
      ___________________________

    IN THE INTEREST OF J.T., A CHILD



   On Appeal from the 323rd District Court
           Tarrant County, Texas
       Trial Court No. 323-108806-18


  Before Sudderth, C.J.; Gabriel and Kerr, JJ.
Memorandum Opinion by Chief Justice Sudderth
                           MEMORANDUM OPINION

      Appellant Father appeals from the trial court’s final order granting him only

supervised visitation with his son, J.T.1 Two days after Father filed a timely request

for a reporter’s record, the court recorder notified this court that the record “was

taken by digital audio recording” and that “there are portions of the audio recording

missing,” rendering her “unable to prepare a true and correct transcription of the

proceedings held in this matter.” See Tex. R. App. P. 34.6(a)(2). We abated the case

to the trial court to conduct an evidentiary hearing and make findings pursuant to

Texas Rule of Appellate Procedure 34.6(f).

      Under Texas Rule of Appellate Procedure 34.6(f), an appellant is entitled to a

new trial if: (1) the appellant timely requested a reporter’s record; (2) without the

appellant’s fault, a significant exhibit or a significant portion of the court reporter’s

notes and records has been lost or destroyed or—if the proceedings were

electronically recorded—a significant portion of the recording has been lost or

destroyed or is inaudible; (3) the lost, destroyed, or inaudible portion of the reporter’s

record, or the lost or destroyed exhibit, is necessary to the appeal’s resolution; and


      1
       The Department of Family and Protective Services (DFPS) sought
conservatorship of J.T. and the termination of his parents’ rights. During the
pendency of the case, the trial court granted DFPS’s motion to appoint J.T.’s paternal
grandparents as temporary possessory conservators. After a bench trial, the trial court
appointed DFPS as J.T.’s permanent managing conservator, appointed J.T.’s paternal
grandparents as his possessory conservators, and granted supervised visitation to both
parents. J.T.’s mother did not appeal.

                                            2
(4) the lost, destroyed, or inaudible portion of the reporter’s record cannot be

replaced by agreement of the parties, or the lost or destroyed exhibit cannot be

replaced either by agreement of the parties or with a copy determined by the trial

court to accurately duplicate with reasonable certainty the original exhibit. Tex. R.

App. P. 34.6(f).

      At the hearing, the court recorder testified that the audio file was incomplete

and that she believed a significant portion was missing, although she did not know

how much because she had not been at the trial. When asked whether there was any

way to replace the lost portion, she replied, “Not to my knowledge.” The court

recorder explained that the trial judge operates the audio-recording system, and she

agreed that, to the extent there was any fault to be had, it was either on the audio

equipment or the judge,2 not the parties.

      At the conclusion of the hearing, the trial court found that:

   • the trial proceedings from the previous hearing were electronically recorded;

   • a timely reporter’s record had been requested;

   • a “significant portion of the electronically recorded record” had been lost or
     had not been recorded;

   • the failure to record, the loss, or the destruction was not the fault of any party
     to the case;


      2
       The judge who presided over Father’s bench trial had retired by the time of
the abatement hearing.

                                            3
   • the trial court could not determine whether the missing record would be
     absolutely necessary to resolve the appeal;

   • the evidence in the missing record could have been material to the trial court’s
     best interest and placement decisions and thus “probably was evidence that was
     considered by the trial court in making its findings”; and

   • the lost record could not be replaced by agreement of the parties.3

      In his single issue, Father argues that he was deprived of a true and accurate

record of his trial and that he is thus entitled to a new trial under Texas Rule of

Appellate Procedure 34.6(f).4 Having reviewed the trial court’s findings under Rule

34.6(f), we agree. See In re S.V., No. 05-16-00519-CV, 2017 WL 3725981, at *3 (Tex.

App.—Dallas Aug. 30, 2017, pet. denied) (op. on reh’g) (applying abuse-of-discretion

standard); see also Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134

S.W.3d 835, 838–39 (Tex. 2004). Accordingly, we sustain Father’s sole issue, reverse

the trial court’s judgment as to Father, and remand the case for a new trial as to

Father. See In re K.B.A., 145 S.W.3d 685, 689 (Tex. App.—Fort Worth 2004, no pet.)

(“An appellant is entitled to a new trial when he timely requests the reporter’s record,




      3
        While counsel for J.T.’s mother said that she thought the testimony could be
recreated, the district attorney and attorney ad litem expressed their doubts that they
could recreate it exactly and accurately based on their recollections, and Father’s
appellate counsel had not represented him during the trial and so had no basis from
which to attempt to recreate the missing testimony.
      4
        DFPS agrees that the Rule 34.6(f) factors have been met and that Father is
entitled to a new trial.

                                           4
and by no fault of the appellant, the reporter’s record has been lost or destroyed, is

necessary for the appeal, and cannot be reconstructed.”).



                                                     /s/ Bonnie Sudderth
                                                     Bonnie Sudderth
                                                     Chief Justice

Delivered: April 30, 2020




                                          5
