Arbor E & T Llc., D/B/A Rescare Workforce Services v. Lower Rio Grande Valley Workforce Development Board Inc. D/B/A Workforce Solutions

• Court: Court of Appeals of Texas
• Decided: October 3, 2013
• Docket: 13-13-00139-CV
• Status: Published

Opinion

NUMBER 13-13-00139-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ARBOR E & T LLC., D/B/A RESCARE WORKFORCE SERVICES, Appellant,

v.

LOWER RIO GRANDE VALLEY WORKFORCE DEVELOPMENT BOARD INC., D/B/A WORKFORCE SOLUTIONS, ET AL. Appellees.

On appeal from the 398th District Court of Hidalgo County, Texas.

ORDER Before Justices Benavides, Perkes and Longoria Order Per Curiam This accelerated, interlocutory appeal was submitted to a panel of this Court on

September 26, 2013. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West

Supp. 2012). On September 27, 2013, Arbor E&T, LLC d/b/a Rescare Workforce

Services (“Arbor”) filed a motion for leave to “re-open and supplement brief” requesting

that it be allowed to supplement the appendix to its brief with an exhibit that is not part of

the appellate record. See TEX. R. APP. P. 34.1 (“The appellate record consists of the

clerk’s record and, if necessary to the appeal, the reporter’s record.”); 38.1(k)(2)

(“Appendix in Civil Cases, Optional Contents”); 38.7 (“Amendment or Supplementation”).

Counsel for Arbor has certified that he has conferred with counsel for Workforce Solutions

Lower Rio Grande Valley, Inc. (“Workforce Solutions”) and that Workforce Solutions is

opposed to the relief requested in Arbor’s motion. See TEX. R. APP. P. 10.1(a)(5).

“An appellate court cannot consider documents cited in a brief and attached as

appendices if they are not formally included in the record on appeal.” Cantu v. Horany,

195 S.W.3d 867, 870 (Tex. App.—Dallas 2006, no pet.); see also Adams v. Reynolds Tile

and Flooring, Inc., 120 S.W.3d 417, 423 (Tex. App.—Houston [14th Dist.] 2003, no pet.)

(stating that the attachment of documents as appendices to briefs does not constitute

formal inclusion in the record on appeal). “Material outside the record that is improperly

included in or attached to a party’s brief may be stricken.” Siefkas v. Siefkas, 902

S.W.2d 72, 74 (Tex. App.—El Paso 1995, no writ).

However, we may “consider documents submitted by the parties that are outside of

the record for the purpose of determining our own jurisdiction.” Harlow Land Co. v. City

of Melissa, 314 S.W.3d 713, 716 n.4 (Tex. App.—Dallas 2010, no pet.); Burgess v. State,

313 S.W.3d 844, 854 n.5 (Tex. App.—Fort Worth 2010, no pet.) (“We may consider

2 documents submitted by the parties that are outside of the trial court’s record for the

purpose of determining our own civil jurisdiction.”). Furthermore, in this case, our

jurisdiction is at issue because the parties disagree about whether Workforce Solutions is

a “governmental unit.” See Terrell v. Tex. Serenity Acad., Inc., 290 S.W.3d 424, 424–25

(Tex. App.—Houston [14th Dist.] 2009, no pet.) (dismissing appeal from interlocutory

order granting plea to the jurisdiction after concluding that defendant was not a

“governmental unit” under the Texas Tort Claims Act); see also Cantu Servs., Inc. v.

United Freedom Assoc., Inc., 329 S.W.3d 58, 64 (Tex. App.—El Paso 2010, no pet.) (“As

UFA is not a governmental unit, we do not find that any of the statutorily-permitted

exceptions in Section 51.014 would permit Cantu’s appeal of the trial court’s interlocutory

order [granting UFA’s plea to the jurisdiction] in this case.”).

Accordingly, Workforce Solutions is hereby ORDERED to file a response to

Arbor’s motion within ten (10) days of this order. It is so ordered.

PER CURIAM

Delivered and filed the 3rd day of October, 2013.