§ 13.003.Free Transcript of Statement of Facts on Appeal

The provision governing a record at public expense, and its conditions are cumulative.

A court reporter shall provide without cost a statement of facts, and a clerk shall prepare a transcript, only if an affidavit of inability to pay the cost of the appeal has been filed under the appellate rules and the trial judge finds two things.

That the appeal is not frivolous, and that the statement of facts and the clerk’s transcript is needed to decide the issue presented.

The second finding is easy to overlook and does real work. Some appeals turn on a pure question of law that can be decided from the pleadings and the judgment, and no record is needed to decide them.

The determination belongs to the trial judge, not to the appellate court — which places it with the judge who heard the case and knows what the record contains.

In deciding whether an appeal is frivolous, a judge may consider whether the appellant has presented a substantial question for appellate review.

That is a different formulation from the dismissal section’s three considerations, and a more appellate one — the question is whether there is something worth reviewing.

Subsection (c) resolves a circularity. The judge may order a clerk to prepare a transcript, or any part of it, necessary for making the determination.

Without that, a judge might need the record to decide whether the record is needed. The subsection allows a partial transcript for the limited purpose of making the finding.

The provision reflects the same principle as the costs section. Public expense follows a judicial finding, rather than an affidavit alone.