Rule 1.1 - APPENDIX IN LIEU OF CLERK'S RECORD IN A CIVIL CASEThis rule sets out additional procedures to be followed in this court when a party opts to file an appendix in lieu of a clerk's record in a civil case. See Tex. Civ. Prac. & Rem. Code Ann. § 51.018 (applicable to notices of appeal filed on or after January 1, 2024). An appendix in lieu of a clerk's record is different from the appendix required in civil cases under Rule 38.1(k) of the Texas Rules of Appellate Procedure. The below rule contains the text of proposed Rule 34.5 a as published in the Texas Supreme Court's Misc. Docket No. 23-9106, which substantially comprises subsections (a)- (h), and additional Second-Court-specific sections and additions to the proposed rule. For clarity, this court's augmentations to the supreme court's proposed rule are italicized.
(a)Notice of Election. Within 10 days after the date that an appellant files a notice of appeal for a civil suit, an appellant may file a notice of election with the trial court and the court of appeals stating that the appellant will file an appendix that replaces the clerk's record for the appeal.(b)Time to File Original Appendix. The appellant filing a notice of election under (a) must file the appendix with the appellant's brief. Except by order of the court under Texas Rule of Appellate Procedure 38.6(d), the brief and appendix must be filed within 30 days-or 20 days in an accelerated appeal-after the later of:(1) the date the appellant filed the notice of election under (a); or(2) the date the reporter's record, if any, is filed with the court of appeals.(c)Supplemental or Joint Appendices. If the appellant files an appendix under (b), any other party may file a supplemental appendix with that party's brief. The parties may agree under Texas Rule of Appellate Procedure 6.6 to file a joint appendix. Such an agreed joint appendix must be filed at the same time as the appellant's brief.(d)Court-Directed Supplement. The court of appeals may direct the appellant to file a supplemental appendix containing items described by the court of appeals. If the appellant fails to supplement as requested, and the record fails to establish the court of appeals' jurisdiction, the court of appeals may dismiss the appeal. In cases where the court of appeals has jurisdiction, and the appellant fails to supplement as requested, the court of appeals may presume that the missing items support the trial court's judgment.(e)Contents of Original Appendix. The appendix filed under (b) must contain a copy of: (1) each document required by Texas Rule of Appellate Procedure 34.5(a) for a civil case; and(2) any other item in the record and referenced in the appellant's brief.(f)Contents of All Appendices. When available, the contents of an appendix must be file-stamped. An appendix must not contain a document that was not filed with the trial court, except: (1) if the document was issued by the trial court; or(2) by agreement of the parties under Texas Rule of Appellate Procedure 6.6.(g)Filing Requirements for All Appendices. An appendix must be filed separately from any other document, and the pages must be consecutively numbered. An appendix must meet the applicable filing requirements of Texas Rules of Appellate Procedure 9.4, 9.8, and 9.9. A nonconforming appendix is subject to court action under Texas Rule of Appellate Procedure 9.4(k). A conforming appendix becomes a part of the appellate record under Texas Rule of Appellate Procedure 34.1(h)No Clerk's Record. A court clerk must not prepare or file a clerk's record or assess a fee for preparing a clerk's record if a party files an appendix under this rule.(i)Additional Filing Requirements for Second Court of Appeals.1.Separate filing. Because a Section 51.018 appendix must be filed separately from any other document, it must satisfy the certificate requirements of Texas Rule of Appellate Procedure 9.5(e).2.Cover page. The appendix must contain a cover page that includes (i) the case style; (ii) the case number; (iii) the trial-court cause number of the matter being appealed; (iv) the name of the party filing the appendix; and (v) the name, mailing address, telephone number, fax number (if any), email address, and State Bar of Texas identification number of the lead counsel for the filing party or the name, mailing address, telephone number, fax number (if any), and email address of an unrepresented party filing an appendix.3.Index; appendix format. Each Section 51.018 appendix must contain an index immediately following the cover page. The index must be in chronological order from the earliest to the latest date that a pleading contained in the appendix was filed with a court clerk or that an order was signed. The appendix pages must be sequentially numbered. For each document included in the appendix, the index must separately list such document and identify it by (i) the verbatim title of the pleading or order (or by other information sufficient to identify the document if it is not a pleading or order), (ii) the file-mark date of the document or the date of an order's signature, and (iii) a listing of the number within the appendix's sequence of documents where the first page of the included document is found. The appendix must be electronically bookmarked for each document contained in the appendix. The index listing of any document filed by the parties' agreement pursuant to Section 51.018(c) must contain a notation that it is being filed pursuant to that subsection, and such agreed document(s) must appear in the appendix after documents filed with a court clerk. For a document filed by agreement, the parties are reminded that the court cannot consider materials outside the appellate record. In re K.M., 401 S.W.3d 864, 866 (Tex. App.-Houston [14th Dist.] 2013, no pet.). For an electronically filed appendix in lieu of a clerk's record, the appendix must comply with the efiling requirements of Texas Rule of Appellate Procedure 9.4(j). An unrepresented party not filing an appendix electronically must include an index that meets this subsection's requirements. A nonconforming appendix is subject to court action under Texas Rule of Appellate Procedure 9.4(k).(j)Redaction. An appendix in lieu of a clerk's record must comply with (i) the requirementsfor the protection of a minor's identity contained in Texas Rule of Appellate Procedure 9.8, (ii) the privacy protection for documents filed in civil cases contained in Texas Rule of Appellate Procedure 9.9,and (iii) Local Rule 7. The party filing the appendix must also follow any other redaction requirement imposed under Texas or federal law.(k)References in Briefs or Other Appellate Filings. To distinguish between an appellant's Texas Rule of Appellate Procedure 38.1(k) appendix and a Section 51.018 appendix in lieu of a clerk's record, the parties should cite to a page (or page range) within a Section 51.018 appendix as "ALCR ___."Tex. 2nd. Ct. App. L. R. 1.1