In RE BEVERLY KOTSANIS v. the State of Texas

Supreme Court of Texas
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No. 23-0319
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In re Beverly Kotsanis,
Relator

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On Petition for Writ of Mandamus
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JUSTICE HUDDLE, joined by Justice Busby, Justice Bland, and
Justice Young, concurring in the denial of the petition for writ of
mandamus.

This petition for writ of mandamus contends that the trial court
abused its discretion when it refused to permit a court reporter to
transcribe a hearing. I concur with the Court’s denial of the petition
with two brief observations.
First, our decision to deny mandamus relief should not be taken
to endorse the denial of a party’s request for a court reporter. To the
contrary, Texas law mandates that a court reporter transcribe
proceedings upon a party’s request. The Government Code states: “On
request, an official court reporter shall . . . attend all sessions of the court
[and] furnish a transcript of the reported evidence or other proceedings
. . . .” TEX. GOV’T CODE § 52.046(a)(1), (5) (emphasis added). And Texas
Rule of Appellate Procedure 13.1(a) likewise mandates that “[t]he
official court reporter or court recorder must . . . unless excused by
agreement of the parties, attend court sessions and make a full record
of the proceedings.” Thus, if a party requests an official court reporter
to transcribe a hearing, the trial court has no discretion to deny that
request. See In re Larkin, 516 S.W.3d 583, 585 (Tex. App.—Houston [1st
Dist.] 2017, orig. proceeding) (“[Relator] specifically requested that the
court reporter record all pretrial and trial proceedings. Once the request
was made, the trial court had no discretion to deny it.”). Even so, it
sometimes happens that parties and counsel arrive at the courthouse for
a hearing only to learn that the court reporter is unavailable (at lunch,
in another proceeding down the hall, what have you), and the trial judge
intends to proceed without one. What to do?
That brings me to my second point. As with any error, a
complaint about the lack of a court reporter must be properly preserved.
“As a prerequisite to presenting a complaint for appellate review, the
record must show that . . . the complaint was made to the trial court by
a timely request, objection, or motion . . . .” TEX. R. APP. P. 33.1(a)
(emphases added). Here, nothing in the record shows that relator asked
the trial court for a reporter or objected to the reporter’s absence.
Relator instead relies on affidavits describing what happened at the
hearing that were created for this mandamus proceeding and attached
to her petition, along with a copy of an email requesting a court reporter
that relator’s counsel avers was sent to the court coordinator before the
hearing. None of this was filed with the trial court, and this Court does
not consider materials attached to a petition in the first instance. See
Guajardo v. Conwell, 46 S.W.3d 862, 864 (Tex. 2001) (declining to
consider evidence “attached to [the] petition” and “not in the clerk’s

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record”).
How to preserve a complaint about the lack of a court reporter is
not self-evident—after all, it is the reporter who usually creates the
official record of the proceeding. Fortunately, the Rules of Appellate
Procedure tell us the answer: file a formal bill of exception and follow
the steps in Rule 33.2 to ensure that the bill of exception gets included
in the record. See TEX. R. APP. P. 33.2. Relator here did not comply with
Rule 33.2, nor did she file any other motion or written objection with the
trial court that might have preserved her complaint. See Reyes v. Credit
Based Asset Servicing & Securitization, 190 S.W.3d 736, 740 (Tex.
App.—San Antonio 2005, no pet.) (noting that a complaint that the court
reporter failed to make a record can be preserved “by filing a motion or
other written objection”).
Relator’s failure to preserve her complaint for our review justifies
denial of mandamus relief.1 I therefore concur in the Court’s denial of
the petition.

Rebeca A. Huddle
Justice

OPINION FILED: November 17, 2023

1 I express no view on the merits of the additional arguments for
denying mandamus relief presented by the real party in interest.

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