Appellate Deadlines & ‘Ghost’ Records: 14th Court Dismisses Civil Appeal for Failure to File Brief After Abatement Hearing
Memorandum Opinion Per Curiam, 14-25-00770-CV, January 29, 2026.
On appeal from the County Civil Court at Law No. 2, Harris County.
Synopsis
The Fourteenth Court of Appeals dismissed this appeal for want of prosecution after the appellant failed to file an appellate brief following an unsuccessful attempt to locate a non-existent reporter’s record. Despite an abatement hearing and a subsequent extension of time, the appellant’s failure to meet the final deadline triggered a dismissal under Texas Rule of Appellate Procedure 42.3(b).
Relevance to Family Law
In the context of high-conflict family law litigation, particularly in appeals involving temporary orders or complex property divisions, the “missing reporter’s record” is a common tactical hurdle. This case underscores that appellate courts will not allow the absence of a record to indefinitely stall the proceedings. Once a trial court determines—via an abatement hearing—that no record was taken, the appellant is on a short leash. Family law practitioners must recognize that procedural delays regarding the record have a shelf life, and failing to pivot quickly to a “clerk’s record only” briefing strategy can result in a total loss of appellate rights.
Case Summary
Fact Summary
The judgment in this matter was signed on May 27, 2025. In September 2025, the court reporter notified the appellate court that no reporter’s record existed. However, the appellant contested this, asserting that a record had indeed been taken. To resolve this discrepancy, the Fourteenth Court of Appeals abated the case and remanded it to the trial court for an evidentiary hearing. On November 18, 2025, the trial court held a hearing and confirmed that no reporter’s record was ever made. Following this determination, the appellate court reinstated the case and issued a notice on December 30, 2025, warning the appellant that the brief must be filed by January 9, 2026, or the case would be dismissed. The appellant requested a five-day extension, moving the deadline to January 14, 2026. When that date passed with no filing, the court moved to dismiss.
Issues Decided
Whether an appeal must be dismissed for want of prosecution under Rule 42.3(b) when an appellant, after an abatement hearing clarifies the status of the record, fails to file an appellate brief by the court-ordered extension deadline.
Rules Applied
Texas Rule of Appellate Procedure 42.3(b) permits an appellate court to dismiss an appeal for want of prosecution when an appellant fails to comply with a notice from the clerk requiring response or action within a specified time. The court also navigated the intersection of Rule 34.6 regarding the reporter’s record and the court’s inherent authority to manage its docket through abatement and reinstatement.
Application
The court’s analysis centered on the appellant’s failure to perform after receiving multiple procedural concessions. The legal “story” here is one of exhaustion of remedies. The court granted the appellant the benefit of an abatement to search for a “ghost” record. Once the trial court definitively ruled that no record existed, the appellate court provided a clear, warned deadline. The court applied Rule 42.3(b) strictly because the appellant had already been granted an extension to the very deadline he missed. By failing to file the brief by January 14th, the appellant failed to prosecute the appeal, leaving the court with no choice but to dismiss, as the appellant had been given specific notice that such failure would be terminal.
Holding
The Court held that the appeal must be dismissed for want of prosecution. The court determined that the appellant’s failure to file a brief by the extended deadline, despite receiving a formal notice of intent to dismiss, satisfied the criteria for dismissal under the Texas Rules of Appellate Procedure.
The Court further held that the appellant’s pending motion for an extension of time was moot. Because the requested extension date had already lapsed without a filing, the court found no basis to grant additional time retroactively, as the appellant had already demonstrated an inability or unwillingness to comply with the timeline he himself proposed.
Practical Application
For family law litigators, this case is a reminder that “waiting for the record” is not a permanent defense against a briefing deadline. If you represent an appellee in a divorce or custody appeal where the appellant is claiming a record exists that you know does not, move for an abatement hearing immediately. Once that hearing concludes and the trial court finds no record exists, the appellant’s briefing clock becomes a fixed target. For appellants, if a record truly does not exist, you must be prepared to brief based solely on the Clerk’s Record (e.g., challenging the legal sufficiency of the pleadings or the face of the judgment) rather than letting the deadline expire while chasing a record that won’t appear.
Checklists
Managing a Disputed Record
- Confirm with the court reporter in writing whether a stenographic record was made.
- If the reporter’s “no record” notice is contested, request a formal abatement under TRAP 34.6.
- Prepare for a trial court hearing to determine the existence or loss of the record.
- If the record is truly unavailable, immediately shift the appellate strategy to “Issue of Law” or “Legal Sufficiency” based on the Clerk’s Record.
Avoiding Dismissal for Want of Prosecution
- Treat a Rule 42.3 “Notice of Intent to Dismiss” as the highest priority in the firm.
- If an extension is requested, ensure the brief is filed on or before the requested date; do not wait for the court to formally grant the motion.
- If a brief cannot be completed, file a “Partial Brief” or a “Motion to Re-Abate” with specific supporting evidence to avoid the 42.3(b) guillotine.
Citation
Marvin Lee Jones v. Arlington Place Apartments, No. 14-25-00770-CV (Tex. App.—Houston [14th Dist.] Jan. 29, 2026, no pet. h.) (mem. op.).
Full Opinion
Family Law Crossover
This ruling can be effectively weaponized in Texas divorce or custody appeals to terminate “stalling” tactics. Appellants often use the excuse of an incomplete or missing reporter’s record to delay the finality of a decree or a modification order. By invoking the procedure used in Jones—remanding for a hearing to confirm the record’s status—an Appellee can force the Appellant into a corner. Once the trial court signs an order finding no record exists (or that the appellant failed to pay for it), the Appellee should immediately move the Court of Appeals to set a hard briefing deadline. This case proves that the 14th Court has no patience for “ghost” record claims once an abatement hearing has cleared the air, providing a streamlined path to dismissal for the prevailing party at the trial level.
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