Tex. R. App. P. 34

Appellate Record

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Rule 34. Appellate Record
34.1. Contents
The appellate record consists of the clerk’s record
and, if necessary to the appeal, the reporter’s record.
Even if more than one notice of appeal is filed, there
should be only one appellate record in a case.
34.2. Agreed Record
By written stipulation filed with the trial court
clerk, the parties may agree on the contents of the
appellate record. An agreed record will be presumed
to contain all evidence and filings relevant to the
appeal. To request matter to be included in the agreed
record, the parties must comply with the procedures in
Rules 34.5 and 34.6.
34.3. Agreed Statement of the Case
In lieu of a reporter’s record, the parties may agree
on a brief statement of the case. The statement must be
filed with the trial court clerk and included in the
appellate record.
34.4. Form.
The Supreme Court and Court of Criminal
Appeals will prescribe the form of the appellate
record.
34.5. Clerk’s Record
(a) Contents. Unless the parties designate the
filings in the appellate record by agreement
under Rule 34.2, the record must include
copies of the following:
(1) in civil cases, all pleadings on which the
trial was held;
(2) in criminal cases, the indictment or
information, any special plea or defense
motion that was presented to the court
and overruled, any written waiver, any
written stipulation, and, in cases in
which a plea of guilty or nolo contendere
has been entered, any documents
executed for the plea;
(3) the court's docket sheet;
(4) the court's charge and the jury's verdict,
or the court's findings of fact and
conclusions of law;
(5) the court's judgment or other order that is
being appealed;
(6) any request for findings of fact and
conclusions of law, any post-judgment
motion, and the court's order on the
motion;
(7) the notice of appeal;
(8) any formal bill of exception;
(9) any request for a reporter’s record,
including any statement of points or
issues under Rule 34.6(c);
(10)any request for preparation of the clerk’s
record;
(11)in civil cases, a certified bill of costs,
including the cost of preparing the
clerk’s record, showing credits for
payments made;
(12)in criminal cases, the trial court's
certification of the defendant's right of
appeal under Rule 25.2;
(13) in civil cases, any supersedeas bond or
certificate of cash deposit in lieu of a
bond; and
(14)subject to (b), any filing that a party
designates to have included in the
record.
(b) Request for Additional Items.
(1) Time for Request. At any time before
the clerk’s record is prepared, any party
may file with the trial court clerk a
written designation specifying items to
be included in the record.
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(2) Request Must be Specific. A party
requesting that an item be included in the
clerk’s record must specifically describe
the item so that the clerk can readily
identify it. The clerk will disregard a
general designation, such as one for “all
papers filed in the case.”
(3) Requesting Unnecessary Items. In a civil
case, if a party requests that more items
than necessary be included in the clerk’s
record or any supplement, the appellate
court may — regardless of the appeal's
outcome — require that party to pay the
costs for the preparation of the
unnecessary portion.
(4) Failure to Timely Request. An appellate
court must not refuse to file the clerk’s
record or a supplemental clerk’s record
because of a failure to timely request
items to be included in the clerk’s record.
(c) Supplementation.
(1) If a relevant item has been omitted from
the clerk’s record, the trial court, the
appellate court, or any party may by
letter direct the trial court clerk to
prepare, certify, and file in the appellate
court a supplement containing the
omitted item.
(2) If the appellate court in a criminal case
orders the trial court to prepare and file
findings of fact and conclusions of law
as required by law, or certification of the
defendant's right of appeal as required by
these rules, the trial court clerk must
prepare, certify, and file in the appellate
court a supplemental clerk’s record
containing those findings and
conclusions.
(3) Any supplemental clerk’s record will be
part of the appellate record.
(d) Defects or Inaccuracies. If the clerk’s record
is defective or inaccurate, the appellate clerk
must inform the trial court clerk of the defect
or inaccuracy and instruct the clerk to make
the correction.
(e) Clerk’s Record Lost or Destroyed. If a
filing designated for inclusion in the clerk’s
record has been lost or destroyed, the parties
may, by written stipulation, deliver a copy of
that item to the trial court clerk for inclusion
in the clerk’s record or a supplement. If the
parties cannot agree, the trial court must —
on any party's motion or at the appellate
court's request — determine what constitutes
an accurate copy of the missing item and
order it to be included in the clerk’s record or
a supplement.
(f) Original Documents. If the trial court
determines that original documents filed with
the trial court clerk should be inspected by the
appellate court or sent to that court in lieu of
copies, the trial court must make an order for
the safekeeping, transportation, and return of
those original documents. The order must list
the original documents and briefly describe
them. All the documents must be arranged in
their listed sequence and bound firmly
together. On any party's motion or its own
initiative, the appellate court may direct the
trial court clerk to send it any original
document.
(g) Additional Copies of Clerk’s Record in
Criminal Cases. In a criminal case, the
clerk’s record must be made in duplicate, and
in a case in which the death penalty was
assessed, in triplicate. The trial court clerk
must retain the copy or copies for the parties
to use with the court’s permission.
(h) Clerk May Consult With Parties. The clerk
may consult with the parties concerning the
contents of the clerk’s record.
34.5a Appendix in Lieu of Clerk’s Record in a Civil
Case
(a) Notice of Election. An appellant in a civil
case 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. The notice
of election must be filed within 10 days after
the date the appellant files a notice of appeal.
(b) Time to File Original Appendix. The
appellant filing a notice of election under (a)
must file the appendix at the same time as the
appellant’s brief. Except by order of the court
under Rule 38.6(d), the brief and appendix
must be filed within 30 days—or 20 days in
an accelerated appeal—after the later of:
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(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
at the same time as that party’s brief. The
parties may agree under Rule 6.6 to file a
joint appendix.
(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 Rule 34.5(a)
for a civil case; and
(2) any other item referenced in the
appellant’s brief, except as provided by
(f).
(f) Contents of All Appendices. When available,
the contents of an appendix filed under this
rule 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 Rule
6.6.
(g) Filing Requirements for All Appendices. An
appendix filed under this rule must be filed
separately from any other document, and the
pages must be consecutively numbered. An
appendix must meet the applicable filing
requirements of Rules 9.4(h), 9.8, 9.9, and
section 1.1 of Appendix C to these rules. A
nonconforming appendix is subject to court
action under Rule 9.4(k). A conforming
appendix becomes a part of the appellate
record under Rule 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.
34.6. Reporter’s Record
(a) Contents.
(1) Stenographic Recording. If the
proceedings were stenographically
recorded, the reporter’s record consists
of the court reporter’s transcription of so
much of the proceedings, and any of the
exhibits, that the parties to the appeal
designate.
(2) Electronic Recording. If the proceedings
were electronically recorded, the
reporter’s record consists of certified
copies of all tapes or other audio-storage
devices on which the proceedings were
recorded, any of the exhibits that the
parties to the appeal designate, and
certified copies of the logs prepared by
the court recorder under Rule 13.2.
(b) Request for preparation.
(1) Request to Court Reporter. At or before
the time for perfecting the appeal, the
appellant must request in writing that the
official reporter prepare the reporter’s
record. The request must designate the
exhibits to be included. A request to the
court reporter — but not the court
recorder — must also designate the
portions of the proceedings to be
included.
(2) Filing. The appellant must file a copy of
the request with the trial court clerk.
(3) Failure to Timely Request. An appellate
court must not refuse to file a reporter’s
record or a supplemental reporter’s
record because of a failure to timely
request it.
(c) Partial Reporter’s Record.
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(1) Effect on Appellate Points or Issues. If
the appellant requests a partial reporter’s
record, the appellant must include in the
request a statement of the points or issues
to be presented on appeal and will then
be limited to those points or issues.
(2) Other Parties May Designate Additions.
Any other party may designate
additional exhibits and portions of the
testimony to be included in the reporter’s
record.
(3) Costs; Requesting Unnecessary
Matter. Additions requested by another
party must be included in the reporter’s
record at the appellant's cost. But if the
trial court finds that all or part of the
designated additions are unnecessary to
the appeal, the trial court may order the
other party to pay the costs for the
preparation of the unnecessary additions.
This paragraph does not affect the
appellate court's power to tax costs
differently.
(4) Presumptions. The appellate court must
presume that the partial reporter’s record
designated by the parties constitutes the
entire record for purposes of reviewing
the stated points or issues. This
presumption applies even if the
statement includes a point or issue
complaining of the legal or factual
insufficiency of the evidence to support
a specific factual finding identified in
that point or issue.
(5) Criminal Cases. In a criminal case, if
the statement contains a point
complaining that the evidence is
insufficient to support a finding of guilt,
the record must include all the evidence
admitted at the trial on the issue of guilt
or innocence and punishment.
(d) Supplementation. If anything relevant is
omitted from the reporter’s record, the trial
court, the appellate court, or any party may
by letter direct the official court reporter to
prepare, certify, and file in the appellate court
a supplemental reporter’s record containing
the omitted items. Any supplemental
reporter’s record is part of the appellate
record.
(e) Inaccuracies in the Reporter’s Record.
(1) Correction of Inaccuracies by
Agreement. The parties may agree to
correct an inaccuracy in the reporter’s
record, including an exhibit, without the
court reporter's recertification.
(2) Correction of Inaccuracies by Trial
Court. If the parties cannot agree on
whether or how to correct the reporter's
record so that the text accurately
discloses what occurred in the trial court
and the exhibits are accurate, the trial
court must – after notice and hearing –
settle the dispute. If the court finds any
inaccuracy, it must order the court
reporter to conform the reporter’s record
(including text and any exhibits) to what
occurred in the trial court, and to file
certified corrections in the appellate
court.
(3) Correction After Filing in Appellate
Court. If the dispute arises after the
reporter’s record has been filed in the
appellate court, that court may submit
the dispute to the trial court for
resolution. The trial court must then
proceed as under subparagraph (e)(2).
(f) Reporter’s Record Lost or Destroyed. An
appellant is entitled to a new trial under the
following circumstances:
(1) if the appellant has timely requested
a reporter’s record;
(2) if, without the appellant's fault, a
significant exhibit or a significant
portion of the court reporter's notes and
records has been lost or destroyed or – if
the proceedings were electronically
recorded – a significant portion of the
recording has been lost or destroyed or is
inaudible;
(3) if the lost, destroyed, or inaudible
portion of the reporter’s record, or the
lost or destroyed exhibit, is necessary to
the appeal's resolution; and
(4) if the lost, destroyed or inaudible portion
of the reporter's record cannot be
replaced by agreement of the parties, or
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the lost or destroyed exhibit cannot be
replaced either by agreement of the
parties or with a copy determined by the
trial court to accurately duplicate with
reasonable certainty the original exhibit.
(g) Original Exhibits.
(1) Reporter May Use in Preparing
Reporter’s Record. At the court
reporter's request, the trial court clerk
must give all original exhibits to the
reporter for use in preparing the
reporter’s record. Unless ordered to
include original exhibits in the reporter’s
record, the court reporter must return the
original exhibits to the clerk after
copying them for inclusion in the
reporter’s record. If someone other than
the trial court clerk possesses an original
exhibit, either the trial court or the
appellate court may order that person to
deliver the exhibit to the trial court clerk.
(2) Use of Original Exhibits by Appellate
Court. If the trial court determines that
original exhibits should be inspected by
the appellate court or sent to that court in
lieu of copies, the trial court must make
an order for the safekeeping,
transportation, and return of those
exhibits. The order must list the exhibits
and briefly describe them. To the extent
practicable, all the exhibits must be
arranged in their listed order and bound
firmly together before being sent to the
appellate clerk. On any party's motion or
its own initiative, the appellate court
may direct the trial court clerk to send it
any original exhibit.
(h) Additional Copies of Reporter’s Record in
Criminal Cases. In a criminal case in which a
party requests a reporter’s record, the court
reporter must prepare a duplicate of the
reporter’s record and file it with the trial court
clerk. In a case where the death penalty was
assessed, the court reporter must prepare two
duplicates of the reporter’s record.
(i) Supreme Court and Court of Criminal
Appeals May Set Fee. From time to time, the
Supreme Court and the Court of Criminal
Appeals may set the fee that the court
reporters may charge for preparing the
reporter’s record.
Notes and Comments
Comment to 1997 change: Former Rules 50, 51
and 53 are merged. Clerk’s record is substituted for
transcript, and reporter’s record is substituted for
statement of facts throughout the rules. In subdivision
34.2, the requisites of an agreed record are more
clearly stated. Former Rule 50(d), regarding the
burden to file a complete record, is repealed.
Subdivision 34.4 is from former Rules 51(c) and
53(h). Former Rule 50(f), regarding a violation of the
rules, is repealed. Subparagraph 34.5(b)(3) allows the
appellate court to tax costs against a party for requiring
unnecessary items to be included in the clerk’s record.
Paragraph 34.5(c) is new and provides for
supplementation of the clerk’s record. The provisions
of paragraph 34.5(d) are from former Rule 55(b). The
provisions of paragraph 34.5(e) are from former Rule
50(e). Paragraph 34.5(h) specifically allows the clerk
to consult with the parties to determine the contents of
the clerk’s record. Paragraph 34.6(a), defining the
reporter’s record, is new. Former Rules 53(b) (Other
Requests), (d) (Partial Statement), and (e)
(Unnecessary Portions) are merged into paragraph
34.6(c). Paragraph 34.6(d) is new. Paragraph 34.6(e)
is from former Rule 55. Paragraph 34.6(f) is from
former Rule 50(d). The provisions of former Rules
53(f) (Certification by Court Reporter) and (h) (Form)
are moved to the Order of the Supreme Court and the
Court of Criminal Appeals on the preparation of the
record. Former Rule 53(I) (Narrative Statement) is
repealed. The provisions of former Rule 53(j) (Free
Statement of Facts) are moved to Rule 20. Former
Rule 53(k) (Duty of Appellant to File) is repealed; it is
now the duty of the court reporter to file the reporter’s
record. Paragraph 34.6(g) is from former Rule 51(d).
Former Rule 53(g) is now paragraph 34.6(I). Former
Rule 53(l) is now paragraph 34.6(h). The need for two
duplicate records in a death penalty case was created
by the habeas corpus provision in Code of Criminal
Procedure article 11.071.
Comment to 2002 change: Rule 34.5(a) is
amended to require that the record in a criminal case
include the certification of defendant's right of appeal;
see Rule 25.2(d). Rule 34.5(c) is amended to make
clear that an appellate court may order the trial court
to make such a certification for inclusion in a
supplemental clerk's record. Subparagraphs 34.6(e)
and (f) are amended to clarify the application to
exhibits. The language in subparagraph (e)(2)
referring to the text of the record is simplified without
substantive change. Subparagraph (e)(3) incorporates
the procedures specified in (e)(2). The language in
subparagraph (f) is clarified to require agreement only
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as to the portion of the text at issue, and to provide that
the trial court may determine that a copy of an exhibit
should be used even if the parties cannot agree.
Comment to 2024 Change: New Rule 34.5a is
added to implement Texas Civil Practice and
Remedies Code section 51.018. It allows the parties in
a civil case to file appendices in lieu of a clerk’s record
and applies only when a party files a notice of appeal
on or after January 1, 2024.

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