TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-02-00802-CV

Gem Stokes and John Jay Stokes, Jr., Appellants

v.

Anthony P. Ferris, Trustee for Richard Ferris, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT

NO. 98-03177, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING

PER CURIAM

Gem Stokes and John Jay Stokes, Jr. have filed two motions: (1) asking this Court to direct the trial court to hold a hearing to locate trial exhibits, and (2) to extend the time to file their briefs. The court reporter filed the reporter's record without exhibits, informing this Court by letter that the district clerk had misplaced the exhibits. Appellants request a hearing at the district court to determine the whereabouts of the exhibits, and request that their briefs not be due until after the exhibits are filed in this Court.

The appellate rules provide that appellants are entitled to a new trial if they have timely requested a reporter's record and if, without appellants' fault, a significant exhibit that is necessary to the resolution of the appeal has been lost or destroyed and cannot be replaced by agreement of the parties or by order of the trial court. Tex. R. App. P. 34.6 (f).

We grant appellants' motions. We abate this appeal and remand this cause to the district court for a hearing to determine the whereabouts of the exhibits and, if necessary, to attempt to replace the exhibits as provided by rule. See Tex. R. App. P. 34.6(f). The parties should confer with each other before the hearing and go to the hearing with as much agreement regarding replacement exhibits as possible. We request that the district court hold this hearing as soon as practicable. After the hearing, the court should either (1) have the reporter prepare and file the exhibits with this Court, or (2) sign an order reporting the inability of the parties and the court to replace the missing exhibits and assessing their significance and necessity to the resolution of the appeal. See id. This appeal will be automatically reinstated on June 2, 2003 absent further order of this Court. The parties, the reporter, or the district court should inform this Court if more time is necessary.

Appellants' briefs will be due thirty days after the filing of the exhibits.

It is ordered May 2, 2003.

Before Chief Justice Law, Justices B. A. Smith and Puryear