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Rule 376. Transcript (1984)
Upon perfection of an appeal or writ of error, as provided by Rule 363, the clerk of the trial court shall prepare under his hand and seal of the court and immediately transmit to the appellate court designated by the appealing party a true copy of the proceedings in the trial court, and, unless otherwide designated by agreement of the parties, shall include the following: the date of filing of plaintiff's original petition; the live pleadings upon which the trial was held; 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 limitation 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 or the certificate, affidavit, or notice in lieu of bond; 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, but the clerk shall disregard any general designation, such as one for "all papers filed in the cause.”
If no additional papers are designated by any party when the appeal has been perfected, the clerk shall treat the perfection of the appeal as a designation by the appellant of the papers specified in this rule and shall include any additional papers designated before the transcript has been completed.
Amended by order of Dec. 5, 1983, eff. April 1, 1984: The last sentence has been added and minor textual changes have been made. The rule makes explicit the clerk's duty to prepare the transcript without waiting for designations by the parties and provides that the clerk shall disregard general designations.
|Prior Amendments||Future Amendments|
|Oct. 29, 1940, eff. Sept. 1, 1941||Repealed by order of April 10, 1986, eff. Sept. 1, 1986|
|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|
(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).