Recently, the Texas Rules of Appellate Procedure were amended to include Rule 34.5a. See Tex. R. App. P. 34.5a. This rule applies to all notices of appeal filed on or after January 1, 2024, and serves to implement Section 51.018 of the Texas Civil Practice and Remedies Code, which was made effective September 1, 2023. Id. at R. 34.5a cmt.; see Tex. Civ. Prac. & Rem. Code Ann. § 51.018. Rule 34.5a allows for the filing of an appendix in lieu of the Clerk’s Record in a civil case, if certain conditions are met. Tex. R. App. P. 34.5a. Specifically, within ten days of filing a notice of appeal, appellant may file a notice of election with the trial court and court of appeals stating that an appendix will be filed in lieu of the Clerk’s Record. Id. at R. 34.5a(a).
An appellant filing a notice of election must file the appendix with the appellant’s brief, and except by order of the court, for an ordinary appeal, the brief and appendix must be filed within thirty days after the later of the date appellant filed the notice of election or the date the Reporter’s Record was filed. Id. at R. 34.5a(b). An appendix filed under this rule must contain a copy of each document required by Texas Rule of Appellate Procedure 34.5(a), as well as any other item in the record and referenced in appellant’s brief. Id. at R. 34.5a(e). When available, all contents in an appendix must be file-stamped, and the appendix cannot contain a document that was not filed with the trial court, except if the document was issued by the trial court or by agreement of the parties. Id. at R. 34.5a(f). Rule 34.5a(g) requires that the appendix be filed separately from any other document, and the pages must be consecutively numbered. Id. at R. 34.5a(g). A conforming appendix becomes part of the appellate record under Texas Rule of Appellate Procedure 34.1. Id.
This rule change is significant for access to justice. Rule 34.5a(h) provides that 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. Id. at R. 34.5a(h). There are likely to be significant cost savings and efficiency gains associated with appellant filing an appendix with their brief, instead of a traditional Clerk’s Record. Furthermore, as more appellants take advantage of the cost savings, the burden on District Clerk’s offices to prepare the Clerk’s Records will be reduced. Interestingly, the filing of an appendix in lieu of the clerk’s record resembles mandamus practice, which requires the relator to provide the appellate court with a record upon which relator can establish a right to mandamus relief. See id. at R. 52.3(k), 52.7; see also Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992).
*Rick Bradley is a Haley & Olson, P.C. attorney board certified in Civil Appellate Law and has more than 16 years’ experience analyzing and navigating the complicated appellate process.