In The 

Court of Appeals 

Seventh District of Texas at Amarillo 

 

No. 07-24-00032-CV 

 

TEXAS DEPARTMENT OF TRANSPORTATION, APPELLANT 

V. 

RUSSELL SMITHSON, APPELLEE 

On Appeal from the 96th District Court 

Tarrant County, Texas 

Trial Court No. 096-311120-19, Honorable J. Patrick Gallagher, Presiding 

February 7, 2024 

ORDER OF ABATEMENT AND REMAND 

Before QUINN, C.J., and PARKER and DOSS, JJ. 

Appellant, Texas Department of Transportation (“TxDOT”), appeals from the trial 

court’s Final Judgment.

1

 The appellate record was due January 16, 2024. The clerk’s 

record was filed by this deadline. However, the reporter’s record remains outstanding 

because TxDOT has not paid for preparation of the record. By letter of January 29, 2024,

TxDOT notified this Court that it “has made multiple attempts to make arrangements to

1 Originally appealed to the Second Court of Appeals, this appeal was transferred to this Court by 

the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001.
2

pay for the reporter’s record as required by the rules, but the court reporters have refused 

to divulge their social security numbers on the Texas Comptroller’s form that by law must 

be completed before payment can be issued.” TxDOT has filed a motion in the trial court 

seeking to resolve the issue, “Defendant Texas Department of Transportation’s

Unopposed Motion to Require Reporter’s Record,” but the motion remains pending and 

a hearing has not been scheduled.

Accordingly, we abate the appeal and remand the cause to the trial court for further 

proceedings. See TEX. R. APP. P. 35.3(c) (“The trial and appellate courts are jointly 

responsible for ensuring that the appellate record is timely filed.”); 37.3(a)(1) (requiring 

appellate courts to “make whatever order is appropriate to avoid further delay and to 

preserve the parties’ rights” when the appellate record is not timely filed). On remand, 

the trial court shall, upon notice and hearing if necessary, 1) determine the status of the 

reporter’s record in this cause, 2) determine what impediments, if any, delay the filing of 

the reporter’s record, 3) determine the date on which the reporter’s record can reasonably 

be filed, 4) rule upon any pending motions regarding the preparation of the reporter’s 

record, and 5) issue written findings of fact addressing each of the foregoing matters. If 

the trial court determines that the official court reporter cannot complete and file the 

reporter’s record with the Clerk of the Seventh Court of Appeals by March 7, 2024, it shall 

appoint a substitute reporter to complete and file the record by April 7, 2024. The trial 

court is directed to enter such orders necessary to ensure the timely preparation of the 

reporter’s record and cause its findings of fact to be filed with the Clerk of the Seventh 

Court of Appeals by March 7, 2024. If the court reporter files the reporter’s record with 

the Clerk of this Court before the trial court convenes any hearing to address the foregoing 
3

matters, the court reporter shall notify the trial court of same, which will then relieve the 

trial court of performing the directives in this order. 

It is so ordered.

Per Curiam