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Rule 376. Transcript
The clerk of the trial court, under the direction of appellant, 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, pertinent to the points of error on appeal and cross appeal, if any, and, unless otherwise designated by agreement of the parties, shall include the following: the material pleadings upon which the trial was had without unnecessary duplication; 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; and any filed paper either party may designate as material.
Source: Federal Rule 75 (g), superseding Art. 2278.
Change: Addition of "under the direction of appellant." Provision for designation of instruments. The list is made controlling in the absence of a designation. The list differs from the enumeration in the Federal Rule in several respects.
Oct. 29, 1940, eff. Sept. 1, 1941.
March 31, 1941, eff. Sept. 1, 1941
July 26, 1960, eff. Jan. 1, 1961
July 22, 1975, eff. Jan. 1, 1976
July 11, 1977, eff. Jan. 1, 1978
June 10, 1980, eff. Jan. 1, 1981
Dec. 5, 1983, eff. April 1, 1984
Repealed by order of April 10, 1986, eff. Sept. 1, 1986
(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).