dissent">BUTTS, Justice,

dissenting.

I feel compelled to dissent to the order in this case. This is a unique situation and certainly not the usual one where Tex. R.App.P. 54(c) applies to preclude late filing of the statement of facts as in the ordinary case. See B.D. Click Co. v. Safari Drilling Corp., 638 S.W.2d 860 (Tex.1982).

Electronically recorded statements of facts are a new thing. It is not disputed that the procedure is an experimental one designed to speed up the appellate process. A court’s participation in the experiment which departs from custom is voluntary. In all fairness to lawyers and litigants, the supreme court’s rule implementing this procedure in Bexar County should be published, setting out guidelines to the unique procedure. Then practicing (and sometimes unwary) lawyers can find out how to obtain the totally different statement of facts needed for purposes of appeal.

I agree with appellant in this case that the rule placed the burden on the court recorder to prepare the electronically recorded statement of facts and file it. I do not agree that the lawyer, unfamiliar with the unconventional procedure, should be punished, along with his ehent, for failure to ascertain (presumably in Bexar County from the cosmos) that a foreign and experimental procedure must be followed in order to appeal a judgment.

Rule 4 of the rules governing the procedure for making a record of electronically recorded court proceedings in Bexar County places the burden squarely on the court recorder to file the log he or she has prepared, along with all exhibits, to store the original recording, and to prepare or obtain a certified cassette copy of the original proceeding upon payment of any charge, at the request of a person entitled to it, or at the direction of the presiding judge or any appellate judge, subject to ah rules and laws and instructions of the presiding judge. Rule 4 states that “[t]he court recorder shall file the statement of facts with the court of appeals within fifteen days of the perfection of the appeal or writ of error. No other filing deadlines as set out in the Texas Rules of Appellate Procedure are changed.” R.Elec.Rec. 4 (emphasis added).

When lawyers have no knowledge of the procedural rules governing electronically recorded proceedings and the modified appellate timetable, do we punish both the lawyer and the htigant for following the traditional rules of appellate procedure? The pilot program rules were not pubhshed as local court rules of Bexar County. This failure operates to the detriment of parties trying their cases in the designated district court and to the detriment of the general population of practicing lawyers possibly destined to fall into the same deadly trap. The lack of a statement of facts crucially affects the right of appeal.

The rules governing appeal of electronically recorded cases in Bexar County should be suspended temporarily by the supreme court until there is fair notice by publication in the local rules.

For these reasons, I dissent to the order disallowing the filing of the statement of facts by appellant in this case.

Citation profile

Relationships

How this case has been treated — in progress