New Service Rule Applicable to the State Prosecuting Attorney Per Misc. Docket No. 19-012
PD-0642-18 through PD-0644-18 12/12/2018
“These cases were selected to address an issue reserved by this Court in Safety Nat’l Cas. Corp. v. State, 305 S.W.3d 586 (Tex. Crim. App. 2010). The issue was raised by motion to retax costs and a motion for new trial. There was a contested hearing in which evidence was offered before the trial court. The parties stipulate that they requested a court reporte[r] and that a court reporte[r] appeared to transcribe the hearing at issue. However, when the record was filed before the court of appeals, no reporter’s record was filed. The record was the subject matter of the hearing that was the issue to be appealed to the court of appeals. Without the record, it was presumed that all of the evidence offered supported the trial court’s ruling. Therefore, the petitioner asked for a new trial. The court of appeals denied the request. This was error.”
International Fidelity Insurance Company posted bond for a defendant who later failed to appear. The trial court entered judgment forfeiting the bond, and the clerk issued a bill of costs. International filed a motion for new trial and a motion to retax costs. The trial court held an evidentiary hearing and denied the motions. International filed notice of appeal and asked that this single hearing be included in the record. On abatement after the record was not filed, the trial court found that, though not International’s fault, the hearing was not stenographically or otherwise recorded and thus a transcript of the hearing could not be prepared. Since it had never been prepared, the trial court found that the record was neither lost nor destroyed. The parties could not agree on a replacement record.
In the court of appeals, International contended that it was entitled to a new trial under Rule of Appellate Procedure 34.6(f). The court of appeals held that the rule applies only when a portion of the proceedings was recorded but then later was lost or destroyed. The trial court found that the hearing had not been recorded, and International did not show it was an abuse of discretion to make that finding.
International argues it is entitled to a new trial based on the parties’ stipulation that (1) the parties informed the trial court that a court reporter was needed, (2) the reporter was called, and (3) the reporter was present for the hearing. International contends it is not its responsibility to ensure that the reporter “actually perform the job upon which she was requested.” International contends that at the hearing, it raised and preserved an issue of importance to the bail-bond industry: whether civil filing fees can be charged as costs of court in a criminal bond forfeiture case.