§ 51.018.Appendix in Lieu of Clerk's Record

A cost-saving alternative to the clerk’s record, and the last subsection is where the saving is.

Not later than the 10th day after filing a notice of appeal, a party may notify the trial court and the court of appeals that the party will file an appendix that replaces the clerk’s record.

The deadline is short and jurisdictional in effect. Notice must come within ten days of the notice of appeal, and a party who misses it takes the clerk’s record and its cost.

The appendix is filed with the party’s appellate brief, and both are due not later than the 30th day after the later of the notice or the filing of the reporter’s record — except in an expedited proceeding or by order of the court.

That timetable is demanding. Thirty days for brief and appendix together is considerably less than ordinary briefing allows, which is the trade for avoiding the clerk’s record.

The appendix must contain a file-stamped copy of each document Rule 34.5 requires for a civil suit, plus any other item the party intends to reference in the brief.

File-stamped copies are the safeguard. The appendix substitutes for a record certified by a clerk, and the file stamps are what show each document is what it claims to be.

It may not contain a document that has not been filed with the trial court, except by agreement of the parties. An appellate record cannot be improved by adding material the trial court never saw.

The appendix becomes part of the appellate record, and a court clerk may not prepare or file a clerk’s record or assess a fee for preparing one.

That fee bar is the point of the section. A clerk’s record in a substantial case can cost more than the appeal is worth, and this removes the charge rather than merely offering an alternative to reading it.