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Motion for Rehearing Granted; Memorandum Opinion of July 26, 2007, Withdrawn; Reversed and Remanded; Majority and Dissenting Opinions on Rehearing filed January 10, 2008.

 

 

In The

 

Fourteenth Court of Appeals

____________

 

NO. 14-06-00549-CV

____________

 

JEFF FORRESTER AND KIM FORRESTER, Appellants

 

V.

 

EMMANUEL GINN, A&R TRANSPORT, INC., KEITH JACKSON, AND STEVE BRANTLEY, Appellees

 

 

On Appeal from the 333rd District Court

Harris County, Texas

Trial Court Cause No. 2004-04581

 

 

D I S S E N T I N G   O P I N I O N   ON   R E H E A R I N G

I respectfully dissent from the majority=s grant of appellants= motion for rehearing.


Despite the language in our former opinion, the following language from the Texas Supreme Court is  dispositive:  A>The absence from the record of affirmative proof that notice of intent to dismiss or of the order of dismissal was provided does not establish error.=@  Alexander v. Lynda=s Boutique, 134 S.W.3d 845, 849 (Tex. 2004) (quoting Gen. Elec. Co. v. Falcon Ridge Apartments, Joint Venture, 811 S.W.2d 942, 943B44 (Tex. 1991) (refusing to consider, as proof of lack of notice, affidavits filed in the appellate court Afrom both the district clerk and its counsel averring respectively that notice was neither given nor received@)).[1]  Because the clerk of the district court has no affirmative duty to make a record showing whether it did or did not give the required notice,[2] the absence of a such a record  is no more than silence:

[T]he fact that the record is silent about the sending of notices under Rule 165a does not establish error on the face of the record.  And mere silence as to whether notice was sent does not establish that notice was not sent or that it was sent to the wrong address.  Accordingly, when the record does not reflect whether notice was sent, that is insufficient to establish reversible error in a restricted appeal proceeding.

Id. at 849B50. 

Under the precedent by which we are bound, the materials presented do not indicate whether there was a failure to send the required notice or whether notice was sent but the clerk of the court simply made no record of its action.  Consequently, I would deny the motion for rehearing.

 

 

 

/s/      Eva M. Guzman

Justice

 

Judgment rendered and Majority and Dissenting Opinions on Rehearing filed January 10, 2008.

Panel consists of Chief Justice Hedges, Justices Guzman, and  Hudson.*  (Chief Hedges, J., majority).



[1]  811 S.W.2d at 943.

[2]  Tex. Gov=t Code Ann. ' 51.303 (Vernon 2005) (addressing duties and powers of the clerk of a district court; although the clerk is required to record the acts and proceedings of court, enter all judgments, and record all executions issued, the statute does not contain an affirmative requirement that the clerk record the mailing or failure to mail a required notice); Tex. R. Civ. P. 165a (clerk is required to send notice, but rule contains no requirement that clerk make a record showing that notice was sent).

*  Senior Justice J. Harvey Hudson sitting by assignment.