CROSSOVER: Lost Hearing Record Can Undo the Order: Rule 34.6(f) Requires a New Trial When an Essential Record Cannot Be Reconstructed

Victor Cavazos Arena v. Andes Global Trading LLC, 13-26-00391-CV, October 15, 2026.

On appeal from 275th District Court of Hidalgo County, Texas

Synopsis

Texas Rule of Appellate Procedure 34.6(f) requires a new trial when a timely requested, necessary reporter’s record is lost without the appellant’s fault and cannot be replaced by agreement or reconstructed with reasonable certainty. Because the record of the special-appearance hearing satisfied those requirements, the court of appeals reversed the order and remanded for further proceedings.

Relevance to Family Law

The decision applies directly to record-dependent appeals in divorce, custody, and marital-property litigation. A missing record from an evidentiary hearing on temporary orders, conservatorship, geographic restrictions, characterization and division of property, reimbursement, enforcement, or personal jurisdiction may prevent meaningful appellate review. If the requirements of Rule 34.6(f) are established, even an otherwise favorable order may be reversed because the appellate court cannot evaluate the evidence, objections, rulings, or preservation of error that produced it.

Case Summary

Fact Summary

Victor Cavazos Arena appealed an interlocutory order granting Andes Global Trading LLC’s special appearance. A court reporter had attended and recorded the special-appearance hearing, and Arena timely requested preparation of the reporter’s record for the appeal.

The court reporter later notified the appellate court that the relevant record had been lost or destroyed. The Thirteenth Court of Appeals abated the appeal and directed the trial court to make findings concerning the requirements of Texas Rule of Appellate Procedure 34.6(f).

At the abatement hearing, the parties appeared through counsel, and the trial court admitted a letter from the court reporter explaining that the hard drive containing the record had been dropped and damaged. The trial court found that the reporter’s materials necessary to prepare the record had been permanently lost through no fault of either party.

The trial court further found that it could not determine who attended the hearing, what evidence was offered, what objections were made, or what evidence was admitted or excluded. Because those matters were material to the special-appearance determination, the missing record was necessary for appellate review. The parties could not agree on an accurate replacement, and the trial court could not reconstruct the record with reasonable certainty.

Issues Decided

Whether the appellant timely requested the reporter’s record.
Whether a significant portion of the reporter’s notes, recordings, exhibits, or related materials was lost or destroyed without the appellant’s fault.
Whether the missing record was necessary to resolve the appeal from the special-appearance order.
Whether the parties could replace the missing record by agreement or the trial court could reconstruct it with reasonable certainty.
Whether satisfaction of Rule 34.6(f) required reversal and remand for further proceedings.

Rules Applied

Texas Rule of Appellate Procedure 34.6(f) entitles an appellant to a new trial when four requirements are met:

The appellant timely requested a reporter’s record.
Without the appellant’s fault, a significant exhibit or a significant portion of the court reporter’s notes, records, or electronic recording was lost, destroyed, or rendered inaudible.
The missing material is necessary to the resolution of the appeal.
The missing portion cannot be replaced by agreement of the parties, or a missing exhibit cannot be replaced by agreement or by a copy that the trial court determines duplicates the original with reasonable certainty.

The court also relied on Garza v. Vargas, 511 S.W.3d 80, 81 (Tex. App.—El Paso 2014, no pet.), which recognizes that an appellant is entitled to a new trial when the requirements of Rule 34.6(f) are satisfied.

Application

The appellate court relied on the trial court’s findings from the abatement proceeding. First, the presence of a court reporter at the special-appearance hearing established that a record had originally been created. Arena had also timely requested that record for purposes of appeal.

Second, the reporter’s letter and the trial court’s findings established that the materials had been permanently lost when the hard drive containing the record was dropped and damaged. The loss was not attributable to either party, satisfying Rule 34.6(f)’s no-fault requirement as to the appellant.

Third, the missing record was essential rather than merely cumulative or incidental. Without it, neither the trial court nor the appellate court could determine who testified, what exhibits or other evidence were offered, what objections were made, or which evidence was admitted or excluded. Those matters were material to reviewing the order granting the special appearance.

Finally, there was no adequate substitute for the original record. The parties could not agree on an accurate replacement, and the trial court could not reconstruct the hearing with reasonable certainty. The findings therefore established each condition required by Rule 34.6(f).

Holding

The court held that Arena was entitled to a new trial under Texas Rule of Appellate Procedure 34.6(f). The reporter’s record had been timely requested, was lost without Arena’s fault, was necessary to resolve the appeal, and could not be replaced by agreement or reconstructed with reasonable certainty.

Because the missing record prevented meaningful appellate review, the court reinstated the appeal, reversed the trial court’s order, and remanded the case for further proceedings.

Practical Application

Family-law cases frequently turn on evidentiary hearings that cannot be replicated from the clerk’s record alone. Temporary-orders proceedings, final trials, enforcement hearings, protective-order hearings, motions to modify, and jurisdictional hearings may involve oral testimony, credibility determinations, exhibits, objections, offers of proof, and oral rulings. If that material disappears, the signed order and docket entries ordinarily will not reveal enough to reproduce the proceeding.

Counsel appealing an adverse family-law ruling should request the reporter’s record promptly and document that request. If the reporter identifies missing, corrupted, or inaudible material, counsel should notify the appellate court and seek an abatement for findings under Rule 34.6(f). The resulting evidentiary record should address each element of the rule separately.

Counsel defending a favorable order should participate fully in any reconstruction process. A reversal may be avoidable if the missing material can be accurately replaced by agreement, through duplicate exhibits, or through a reliable reconstruction. Proposed reconstructions should distinguish between matters that can be verified—such as filed exhibits or written rulings—and matters that depend on uncertain recollection.

The “necessary to the appeal’s resolution” requirement deserves particular attention. A lost record does not automatically require reversal. The appellant should connect the missing testimony, exhibits, objections, or rulings to the appellate issues. Conversely, the appellee should evaluate whether the appeal can be resolved from the clerk’s record, undisputed facts, written findings, or other preserved materials.

The rule can be especially consequential in interstate family disputes. A special appearance may arise in a divorce involving a nonresident spouse, a dispute over jurisdiction concerning marital property, or a proceeding involving support or enforcement against a nonresident. Although subject-matter jurisdiction under the UCCJEA or UIFSA presents distinct legal questions, those hearings can likewise generate record-dependent appellate issues.

Checklists

Protect the Record Before the Hearing

Confirm that a certified court reporter will attend every evidentiary hearing that may generate an appealable ruling.
Make a clear request on the record that all testimony, objections, rulings, and offers of proof be reported.
Mark exhibits consistently and retain complete copies of admitted, excluded, and offered exhibits.
File important demonstratives, summaries, and written proffers when procedurally appropriate.
Obtain a clear ruling on each objection and request.
Make an offer of proof when evidence is excluded and preservation requires one.
Preserve written versions of stipulations, agreements, and proposed findings whenever feasible.

Request and Verify the Appellate Record

Timely request the reporter’s record in writing.
Identify every hearing and trial date relevant to the appellate issues.
Confirm the reporter’s receipt of the request.
Pay or make arrangements to pay the reporter’s fee, or establish entitlement to proceed without payment.
Review the filed record promptly for omitted hearing dates, exhibits, or proceedings.
Calendar deadlines to request supplementation or correction.
Preserve correspondence concerning unavailable, damaged, or incomplete materials.

Establish Rule 34.6(f)

Prove that the reporter’s record was timely requested.
Establish that a significant portion of the notes, records, recording, or exhibits was lost, destroyed, or rendered inaudible.
Establish that the loss occurred without the appellant’s fault.
Identify the appellate issue for which the missing material is necessary.
Explain why the clerk’s record and surviving portions of the reporter’s record are insufficient.
Determine whether the parties can agree on an accurate replacement.
Present evidence concerning whether reconstruction is possible with reasonable certainty.
Request express findings addressing each element of Rule 34.6(f).

Respond to a Missing-Record Claim

Determine precisely which portions of the proceeding are missing.
Evaluate whether the appeal can be resolved without the missing material.
Identify duplicate exhibits, written stipulations, filed motions, orders, or other reliable substitutes.
Confer with opposing counsel regarding an agreed replacement where accuracy can be assured.
Avoid agreeing to a reconstruction that rests on disputed or uncertain recollections.
Develop evidence for the abatement hearing concerning what can and cannot be reliably reconstructed.
Request element-by-element findings from the trial court.

Prepare for Remand

Determine whether the appellate disposition requires a new hearing, a new trial, or broader further proceedings.
Reassess jurisdictional, evidentiary, and preservation issues before the remand hearing.
Reissue subpoenas and update business-record affidavits as necessary.
Confirm the continued availability of witnesses and exhibits.
Address changed circumstances that may affect custody, support, property, or enforcement issues.
Ensure that the new proceeding is fully reported and that all exhibits are preserved.

Citation

Cavazos Arena v. Andes Global Trading LLC, No. 13-26-00391-CV (Tex. App.—Corpus Christi–Edinburg Oct. 15, 2026, no pet. h.) (mem. op.).

Full Opinion

Read the full opinion.

Family Law Crossover

The crossover mechanism is Rule 34.6(f), which provides a procedural remedy when the appellate record has been lost through no fault of the appellant. In a family-law appeal, the rule may be invoked when the reporter’s record of a temporary-orders hearing, final divorce trial, conservatorship proceeding, modification hearing, enforcement proceeding, protective-order hearing, or jurisdictional hearing cannot be produced.

The appellate court ordinarily may abate the appeal and direct the trial court to conduct a hearing. That hearing should determine whether the record was timely requested, whether significant material was lost without the appellant’s fault, whether the material is necessary to decide the appeal, and whether it can be replaced or reliably reconstructed. The trial court’s findings then allow the appellate court to determine whether Rule 34.6(f) requires a new trial.

In practical terms, the rule protects the ability to obtain meaningful appellate review, but it also creates risk for the party defending a favorable family-law ruling. When the missing record contains material testimony, evidentiary objections, excluded evidence, or oral rulings—and no reliable substitute exists—the underlying order may not survive even if the clerk’s record contains a signed order or findings. The operative inquiry is whether the appellate court can decide the issues presented without the missing material, not whether a hearing indisputably occurred.

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