                                  COURT OF APPEALS FOR THE
                             FIRST DISTRICT OF TEXAS AT HOUSTON

                                      ORDER OF ABATEMENT

Appellate case name:       Sharon Huston v. United Parcel Service, Inc.

Appellate case number:     01-12-00387-CV

Trial court case number: 2009-59257

Trial court:               270th District Court of Harris County

        In her opening brief on appeal, appellant, Sharon Huston, contends that the trial court
erroneously denied her an effective opportunity to cross-examine Dr. Francisco Perez, whom she
describes as a “key witness” for appellee, United Parcel Service, Inc. (“UPS”). In its brief, UPS
first argues that Huston failed to preserve this complaint for appellate review because the
appellate record does not contain “any ruling by the trial court affecting Appellant’s ability to
cross-examine Perez.” UPS then disputes Huston’s characterization of the trial court’s ruling
concerning the cross-examination of Dr. Perez. Neither party points to a portion of the existing
appellate record that contains this ruling.
        On October 2, 2013, Huston filed her reply brief. In this brief, she contends that a court
reporter was “present and recording” the pretrial hearing at which the trial court made its ruling
concerning the cross-examination of Dr. Perez. She further states:
       The court reporter supplemented the [appellate] record on May 6, 2013 with a
       transcript of a hearing held on August 19, 2011 that did not contain the ruling in
       question. At that time, Huston’s counsel was informed that there were no other
       records available. The court reporter sent another letter informing counsel that it
       could find no additional records of hearings.
Huston now argues that she is entitled to a new trial “based solely on the missing portion of the
record” pursuant to Texas Rule of Appellate Procedure 34.6(f). See TEX. R. APP. P. 34.6(f)
(providing that, if certain circumstances are met, appellant is entitled to new trial when portion of
reporter’s record is lost or destroyed). Huston attached the affidavits of her two attorneys to
support her assertions that she had requested that a court reporter “record the proceedings in this
matter,” that the court reporter was present at the hearing and transcribing at the time the trial
court made the relevant ruling concerning the cross-examination of Dr. Perez, that her attorneys
had requested the transcript of this hearing, and that the court reporter informed her attorneys
that she had provided “all of the transcripts that she has and there are no other transcripts.”
        In response, UPS filed a letter with this Court stating that, at the hearing in question, the
trial court asked whether a record of the proceeding was necessary and neither party requested
that a record be made. UPS’s counsel attached his own affidavit to this letter, in which he
averred:
       As counsel representing United Parcel Service, Inc., I was present for the entire
       proceeding, and attended and participated in the hearings of all pre-trial matters,
       including the hearing on Appellant’s offer of page and line designations for the
       deposition of Dr. Francisco Perez. With respect to this hearing, while the trial
       court inquired whether a record was necessary, one was not requested by either
       party. In fact, no record was requested for a majority of the pre-trial proceedings.
        In light of these representations by Huston’s counsel and UPS’s counsel, we abate the
appeal and remand the cause to the trial court for further proceedings. On remand, the trial court
shall conduct a hearing within thirty days of the date of this order, at which Huston’s counsel and
UPS’s counsel shall be present.
       We direct the trial court to make the following findings of fact:
       (1)     Whether Huston requested that the pretrial hearing at which the trial court
               made the ruling concerning cross-examination of Dr. Perez (“the hearing”)
               be transcribed by a court reporter;
       (2)     Whether the hearing was actually recorded, either electronically or by
               other means;
       (3)     If the hearing was recorded, whether Huston timely requested the
               reporter’s record;
       (4)     If the hearing was recorded, whether a significant portion of the court
               reporter’s notes and records concerning the hearing has been lost,
               destroyed, or is inaudible for reasons other than the fault of Huston;
       (5)     Whether the lost, destroyed, or inaudible portion of the reporter’s record is
               necessary to the appeal’s resolution; and
       (6)     Whether the lost, destroyed, or inaudible portion of the reporter’s record
               can be replaced by agreement of the parties.
See TEX. R. APP. P. 34.6(f) (setting out conditions appellant must meet to obtain new trial as
result of lost or destroyed reporter’s record); see also TEX. GOV’T CODE ANN. § 52.046(a)(1), (5)
(Vernon 2013) (providing that, “on request,” court reporter shall “attend all sessions of the court”
and “furnish a transcript of the reported evidence or other proceedings, in whole or in
part . . . .”).
        The trial court shall have a court reporter record the hearing. The trial court clerk is
directed to file a supplemental clerk’s record containing the trial court’s findings with this Court
within thirty-five days of the date of this order. The court reporter is directed to file the
reporter’s record of the hearing within thirty-five days of the date of this order.
       The appeal is abated, treated as a closed case, and removed from this Court’s active
docket. The appeal will be reinstated on this Court’s active docket when records that comply
with this order are filed with the Clerk of this Court. The court coordinator of the trial court shall
set a hearing date and notify the parties.
       It is so ORDERED.

Judge’s signature: /s/ Evelyn V. Keyes
                        Acting individually        Acting for the Court


Date: November 14, 2013
