Robert A. Eakin v. State of Texas, County of Bexar, Et Al.--Appeal from 225th Judicial District Court of Bexar County

No. 04-97-01038-CV
Robert Alan EAKIN, Individually and D/B/A Robert A. Eakin Insurance,
Appellant
v.
STATE of Texas, County of Bexar, City of San Antonio,
San Antonio Independent School District, and the San Antonio Independent School District
as Successor in Interest for the Bexar County Education District,
Appellees
From the 225th Judicial District Court, Bexar County, Texas
Trial Court No. 97-TAI-0781
Honorable Carol R. Haberman, Judge Presiding

Opinion by: Phil Hardberger, Chief Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Catherine Stone, Justice

Delivered and Filed: October 7, 1998

AFFIRMED

Robert Eakin ("Eakin") appeals by restricted appeal from a post-answer default judgment taken against him in a delinquent tax collection proceeding. In four points of error, Eakin contends that the trial court's judgment should be reversed because: (1) he was not properly served with citation; and (2) no reporter's record was made of the trial court proceeding.(1) We affirm the trial court's judgment.

Requisites for a Restricted Appeal

A party, who did not participate in the hearing that resulted in the judgment complained of and who did not timely file a postjudgment motion or request for findings of fact and conclusions of law, may seek a reversal of the judgment by filing a notice of restricted appeal within six months from the date of the judgment and showing error that is apparent from the face of the record. Stubbs v. Stubbs, 685 S.W.2d 643, 644 (Tex. 1985); Tex. R. App. P. 30. In this case, Eakin filed his notice of restricted appeal within six months from the date the judgment was signed, and he did not participate in the hearing that resulted in the judgment against him or timely file a postjudgment motion. We must therefore consider whether Eakin has shown error apparent on the face of the record.

Absence of Service

Eakin first contends that the judgment is void because the record does not show that he was served. Contrary to Eakin's contention, however, the clerk's record contains a certified mail receipt signed by Eakin and an officer's return stating that service was executed by certified mail. Eakin's first complaint is overruled.

Absence of Reporter's Record

Eakin's second contention is that reversal is required because he was unable to obtain a reporter's record from the trial court proceeding through no fault of his own. Eakin states in his brief that he requested the reporter's record but was informed that no court reporter was present at the time the judgment was entered. Assuming that Eakin's statement in his brief is sufficient proof that a reporter's record was not made in the absence of a brief by the appellees controverting this statement, we find Eakin's assertion lacks merit.

"Where the record supports the judgment in the absence of a [reporter's record], it is incumbent on the party alleging error to show that a [reporter's record] was necessary. In the absence of such a showing there is no error." Brown v. McLennan County Children's Protective Services, 627 S.W.2d 390, 394 (Tex. 1982); see also Angelo v. Champion Restaurant Equipment Co., 702 S.W.2d 209, 211 (Tex. App.--Houston [1st Dist.] 1985), rev'd on other grounds, 713 S.W.2d 96 (Tex. 1986). In this case, the record contains the affidavits of the legal custodian of the tax records for Bexar County and the San Antonio Independent School District and the legal custodian of the tax records for the City of San Antonio, setting forth the delinquent taxes owed by Eakin. These affidavits support the trial court's judgment. See Brown, 627 S.W.2d at 394; Angelo, 702 S.W.2d at 211; Naficy v. Braker, 642 S.W.2d 282, 285 (Tex. App.--Houston [14th Dist.] 1982, writ ref'd n.r.e.). Eakin does not contend that the making of a reporter's record was statutorily required. See Stubbs v. Stubbs, 685 S.W.2d at 646. Since Eakin failed to make a showing that the reporter's record was necessary in light of the fact that the record supports the judgment in its absence, there is no error.

Conclusion

Eakin has failed to show error apparent on the face of the record. The judgment of the trial court is affirmed.

PHIL HARDBERGER,

CHIEF JUSTICE

DO NOT PUBLISH

1. In Eakin's second and third points, he merely asserts that he did not participate in the hearing that resulted in the judgment and did not consent to the judgment. We note that these points are not independent grounds for reversal but simply elements that must be satisfied to show entitlement to a restricted appeal.

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