Monday, March 25, 2013
(10) Absence of Public Record or Entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with Rule 902, or testimony, that diligent search failed to disclose the record, report statement, or data compilation, or entry.
As the recent opinion of the Court of Appeals of Texas, Houston, in Texas Municipal Power Agency v. Johnston, 2013 WL 744395 (Tex.App.-Houston [1 Dist. 2013]), makes clear, this exception frequently applies to "no records" certificates.
In Johnston, Kirk A. Johnston sought temporary and permanent injunctive relief against the Texas Municipal Power Agency ("TMPA") to prohibit TMPA from, among other things, entering onto his property to conduct surveys and inspections and attempting to condemn a portion of his property. In response, the TMPA filed a plea to the jurisdiction, and the trial court denied the plea. Thereafter, the TMPA appealed.
In addressing the TMPA's appeal, the Court of Appeals of Texas, Houston, noted that
At the hearing on its plea to the jurisdiction, the trial court admitted into evidence a certification from Wanda Callahan, the assistant secretary of the Board, certifying that the minutes and records of the Board's meetings "contain no record of the adoption by the Board of Directors of any motion, order, or resolution or any other action declaring the existence of a public purpose or necessity for the filing of a condemnation proceeding to acquire any property interest owned by Kirk A. Johnston or otherwise authorizing the filing of such a proceeding."
The appellate court agreed with this decision, finding that
Johnston objected to the admission of the no-records certificate on the ground that this document constitutes inadmissible hearsay. This document, however, proves "the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency" and thus falls within an exception to the hearsay rule. See TEX.R. EVID. 803(10)....