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Rule 376. Transcript (1978)

TEXT

Upon the filing of the cost bond or deposit, the clerk of the trial court shall prepare under his hand and seal of the court for transmission to the appellate court a true copy of the proceedings in the trial court, and, unless otherwise designated by agreement of the parties, shall include the following: the live pleadings upon which the trial was had; the order of the court upon any motions or exceptions as to which complaint is made; the charge of the court and the verdict of the jury, or the findings of fact and conclusions of law; bills of exceptions; the judgment of the court; the motion for new trial and the order of the court thereon; the notice of appeal with the date of giving or filing the same; any statement of the parties as to the matter to be included in the record; the bond on appeal; a certified bill of costs, including the cost of the transcript and the statement of facts; if any, and showing any credits for payments made thereon; and any filed paper either party may designate as material. When a cost bond or deposit is excused by law, the clerk shall comply with this rule upon the filing of a notice of appeal filed pursuant to Rule 354.

When an affidavit of inability to payor secure costs of appeal is filed, the clerk shall comply with this rule when the prescribed period has passed without contest, or when a contest has been filed and overruled pursuant to Rule 355.

Amended by order of July 11, 1977, eff. Jan. 1, 1978: The rule is changed to provide when the clerk shall commence preparation of a transcript. The requirement for directions from the appellant are deleted. The last two sentences are new.

ADVISORY OPINIONS

(No. 56) Question: Do the new rules allow a part of a pleading to be left out of the transcript? Is it permissible to omit from the transcript exceptions contained in a pleading that are not material to the points to be raised on appeal?

Answer: It is our opinion that the above questions should be answered in the affirmative.

Where the parties enter into a written stipulation as to what the transcript or statement of facts shall contain, Rule 375 expressly makes such a stipulation controlling. Rules 376, 377, and 378 also recog­nize the controlling effect of any agree­ment of the parties in preparing the record. Therefore it is clear that by written agreement any part of any docu­ment can properly be omitted from the transcript.

Even where there is no written agree­ment by the parties, it is our opinion that exceptions or portion of a pleading that are not material to the points to be raised on appeal can properly be omitted from the transcript. Rule 370 shows that it is the spirit and purpose of the rules to abbreviate the record as much as possible and to omit therefrom all matter not material to the appeal. Rule 376 provides for the inclusion in the transcript of "the material pleadings," and we feel that when this is construed in the light of the gen­eral spirit of the rules it authorizes the inclusion of only a part of a pleading when the other part is not material to the ques­tions involved in the appeal.

Where the appellant desires that only a portion of a particular pleading be included in the transcript his written designation should set out clearly what parts or paragraphs of the pleading he desires included, or if more convenient he could set out which parts or paragraphs of the particular pleading he desires omitted as being immaterial to the appeal. The ap­pellee can then request that all or parts of the omitted matter be included, should the appellee deem said parts material to his contentions on the appeal. Of course the pleadings should not be garbled or deletions made in such a manner as to affect the meaning of the portion that is in­cluded in the transcript.

5 Tex. B.J. 322 (1942) reprinted in 8 Tex. B.J. 23 (1945).