                             In The
                       Court of Appeals
         Sixth Appellate District of Texas at Texarkana


                            No. 06-19-00076-CV



JERRY DUFFEY, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF
               BESSIE FAITH DUFFEY, DECEASED, Appellant

                                     V.

SLEEP CENTER OF LONGVIEW AND BAHER ELHALWAGI, M.D., INDIVIDUALLY
           AND D/B/A SLEEP CENTER OF LONGVIEW, Appellees



                  On Appeal from the 124th District Court
                          Gregg County, Texas
                      Trial Court No. 2016-1261-B




                Before Morriss, C.J., Burgess and Stevens, JJ.
                                           ORDER
       Pending before this Court is Appellant Jerry Duffey’s motion to abate this appeal to the

trial court. In his motion, Duffey contends that there is a crucial exhibit missing from the record.

Duffey maintains that he, through counsel, has asked the district clerk about the missing exhibit,

but indicates that he did not receive a satisfactory response.

       Since Duffey has raised issues regarding the accuracy of the record after it has been filed

in this Court, we will submit this dispute to the trial court for resolution under Rules 34.5(e) and

34.6(e) and (f) of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 34.5(3), 34.6(e),

(f). We hereby abate this matter to the trial court to conduct an evidentiary hearing pursuant to

Rules 35.5(3) and 34.6(e) and (f), for the purposes of (1) determining whether all portions of the

record to which the parties are entitled have been provided to them and filed with this Court and

(2) identifying and correcting, if possible, any inaccuracies or deficiencies in the reporter’s record.

       We instruct the trial court to conduct an evidentiary hearing within fifteen days of the date

of this order and to enter findings regarding the following:

       1.      Precisely what portions of the record Duffey (or any other party) claims are missing

and/or what parts of the record Duffey (or any other party) claims are inaccurate.

       2.      For each error or omission identified in response to No. 1 above, whether the issue

can be resolved by agreement as contemplated by Rules 34.5(e) or 34.6(e)(1) of the Texas Rules

of Appellate Procedure;




                                                  2
        3.      If such error or omission can be corrected by agreement, then the trial court is

instructed to take steps to ensure that the record is corrected in accordance with the parties’

agreement;

        4.      If such error or omission cannot be corrected by agreement, then the trial court is

instructed to take the steps outlined in Rules 34.5(e) and 34.6(e)(2) of the Texas Rules of Appellate

Procedure to resolve the dispute and correct the record;

        5.      For each error or omission identified in response to No. 1 above, whether any

missing exhibit or portion of the record has been lost or destroyed as contemplated by Rules 34.5(e)

and 34.6(f) of the Texas Rules of Appellate Procedure;

        6.      For each exhibit or portion of the record that is determined to be lost or destroyed,

if any, the trial court is instructed to take evidence on and enter findings regarding each of the four

factors set out in Rule 34.6(f) of the Texas Rules of Appellate Procedure and to enter

recommendations regarding whether the appellant is entitled to a new trial as a result of the lost or

destroyed exhibit or portion of the record.

        7.      We also request that the trial court make any additional findings that it believes will

be helpful to this Court in fully and finally resolving all issues related to the record in this matter.

        The trial court’s findings, as set forth above, shall be entered into the record of the case and

filed with this Court as a supplemental clerk’s record within ten days of the date of the hearing.

The reporter’s record of the hearing, and any certified corrections to the reporter’s record under

Rule 34.6(e)(2), shall be filed in the form of a supplemental reporter’s records within ten days of

the date of the hearing.

                                                   3
       All appellate timetables are stayed and will resume on our receipt of the supplemental

record. We withdraw Duffey’s current briefing deadline and will establish a new briefing schedule

once the case is returned to our jurisdiction from abatement.

       IT IS SO ORDERED.



                                                     BY THE COURT

Date: November 7, 2019




                                                4
