Alief Independent School District v. Anthony Velazquez

                                 COURT OF APPEALS FOR THE
                            FIRST DISTRICT OF TEXAS AT HOUSTON

                                              ORDER

Appellate case name:      Alief Independent School District v. Anthony Velazquez

Appellate case number:    01-22-00444-CV

Trial court case number: 2021-42160

Trial court:              80th District Court of Harris County

       On October 11, 2022, the First Supplemental Clerk’s Record was filed. The
correspondence in the First Supplemental Clerk’s Record indicated the following was attached:

       Image No: 100195815; Exhibit 2 to Alief ISD’s First Amended Plea to the Jurisdiction
       (delivered via courier on February 3, 2022, as a USB flash drive, as requested by the court
       clerk and on October 4, 2022, as a document containing a link to video).

The First Supplemental Clerk’s Record only contained a non-functioning “video link” and not
the original USB flash drive. On December 9, 2022, this Court requested that the district clerk
file the USB flash drive that contains Exhibit 2 to Alief ISD’s First Amended Plea to the
Jurisdiction within five days.

        On December 19, 2022, the district clerk filed a Second Supplemental Clerk’s Record
that stated the trial court clerk is “unable to locate documents/Video USB Flash Drive relating to
Exhibit 2 in our case file.”

         Texas Rule of Appellate Procedure 34.5 addresses the procedure when the clerk’s record
is lost or destroyed. It states:

       If a filing designated for inclusion in the clerk's record has been lost or destroyed,
       the parties may, by written stipulation, deliver a copy of that item to the trial court
       clerk for inclusion in the clerk's record or a supplement. If the parties cannot
       agree, the trial court must—on any party's motion or at the appellate court's
       request—determine what constitutes an accurate copy of the missing item and
       order it to be included in the clerk's record or a supplement.
TEX. R. APP. P. 34.5(e). Accordingly, we abate the appeal and remand to the trial court. If the
parties can agree by stipulation about the contents of the missing flash drive, they may deliver a
copy of the flash drive or the contents thereof to the trial court clerk for inclusion in the clerk’s
third supplemental record. If the parties cannot agree by stipulation within fourteen days of the
date of this order, the trial court must determine what constitutes an accurate copy of the missing
item and order it to be included in the third supplemental clerk’s record. TEX. R. APP. P. 34.5(e).

        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 the third supplemental
clerk’s record is filed with the Clerk of this Court or upon further order from this Court.

       It is so ORDERED.

Judge’s signature: /s/ Veronica Rivas-Molloy
                   Acting individually


Date: December 22, 2022