In the Interest of J.N.L., A Child--Appeal from 166th Judicial District Court of Bexar County

DISSENTING OPINION
No. 04-04-00539-CV
IN THE MATTER OF J.N.L.
From the 166th Judicial District Court, Bexar County, Texas
Trial Court No. 1995-CI-04653
Honorable Michael P. Peden, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Dissenting opinion by: Alma L. L pez, Chief Justice, joined by Catherine Stone, Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: December 8, 2004

While I applaud the majority's effort to assist the court reporter in this case, and am sympathetic that the court reporter may have to produce a record without pay due to a possible omission by a third party, I do not believe Rule 2 should be applied in this circumstance to enlarge the time limit for filing a contest to an affidavit of indigence. If this appeal involved a criminal matter, I would be even more emphatic because the Texas Court of Criminal Appeals has cautioned:

[W]e think it is clear that using Rule 2(b) to "suspend" or enlarge appellate time limits which regulate the orderly and timely process of moving a case from trial to finality of conviction is overstepping the contemplated uses of Rule 2(b). . . . Rule 2(b) is in essence an escape valve to be used by an appellate court when a case becomes unduly stalled or delayed in the appellate process due to procedural rules, and the interests of justice compel speeding up the process; although Rule 2(b) may be used to shorten the time limits when justice so requires, it should not be used as a method to lengthen procedural time limits absent truly extraordinary circumstances, even in an effort to protect the substantive rights of litigants.

Oldham v. State, 977 S.W.2d 354, 359-60 (Tex. Crim. App. 1998). As that court noted in an earlier case, "rule 2(b) does not authorize the retroactive suspension of rules governing events that have already occurred at the trial level before the record has been conveyed to the appellate court." State v. Garza, 931 S.W.2d 560, 563 (Tex. Crim. App. 1996). Because Oldham and Garza are decisions in criminal appeals and because the Texas Supreme Court has been more liberal than the Texas Court of Criminal Appeals in its application of the appellate rules, I am comfortable that we can disregard the problematic language in those decisions. Compare Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) with Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996).

In the civil context, however, appellate courts have similarly been unwilling to apply Rule 2 to expand either the trial court's jurisdiction or the appellate court's jurisdiction. See Kacal v. Cohen, 13 S.W.3d 900, 901-02 (Tex. App.--Waco 2000, no pet.); Jauregui Partners, Ltd. v. Grubb & Ellis Commercial Real Estate Servs., 960 S.W.2d 334, 336-37 (Tex. App. --Corpus Christi 1997, pet. denied). Although a few appellate courts have been willing to invoke Rule 2 to permit a late filed affidavit of indigence to ensure that an appellant was provided a record on appeal, not all of the judges on one of those courts were in agreement. See Gonzalez v. Gonzalez, No. 08-01-00453-CV, 2003 WL 1759587 (Tex. App.--El Paso Apr. 3, 2003, no pet.) (not designated for publication); Wells v. Breton Mill Apts., 85 S.W.3d 823, 824 (Tex. App.--Amarillo 2001, no pet.); see also Gonzalez, 2003 WL 1759857, at *5-6 (McClure, J., dissenting). Moreover, applying Rule 2 to ensure that the merits of an appeal are decided with a complete record is vastly different than applying Rule 2 to ensure that a court reporter has the ability to contest an affidavit in an effort to be paid. While in the former context, the application of Rule 2 arguably protects the substantive rights of the appellant by ensuring that the appellate court has a sufficient record to review the merits of the appeal, applying Rule 2 in the latter context only serves the financial motive of a non-party. Although the Texas Supreme Court has instructed us to construe the Rules of Appellate Procedure reasonably, yet liberally, this instruction was in furtherance of the policy of disposing of appeals on their merits. See Verburgt, 959 S.W.2d at 616-17.

Applying Rule 2 in this case does not expedite our decision, and I disagree that "good cause" has been shown for suspending Rule 20 in these circumstances. The Texas Supreme Court established time limits in Rule 20 for a reason, and I do not believe Rule 2 should be invoked to suspend its operation in this appeal. Accordingly, I respectfully dissent.

Alma L. L pez, Chief Justice