B.C. v. Steak N Shake Operations, Inc.

Opinion

Order entered October 24, 2014

In The Court of Appeals Fifth District of Texas at Dallas No. 05-14-00649-CV

B.C., Appellant

V.

STEAK N SHAKE OPERATIONS, INC., Appellee

On Appeal from the 380th Judicial District Court Collin County, Texas Trial Court Cause No. 380-02686-2012

ORDER Further review of the record in this case shows that the appellants have filed an agreed

clerk’s record that is not certified by the trial court clerk but rather was prepared by the parties.

Although Texas Rule of Appellate Procedure 34.2 permits the parties to agree on the contents of

the appellate record, the rule also provides that, “to request matter to be included in the agreed

record, the parties must comply with the procedures in Rules 34.5 and 34.6.” See TEX. R. APP. P.

34.2. Relevant to the clerk’s record, rule 34.5 provides that “any party may file with the trial

court clerk a written designation specifying items to be included in the record.” See id.

34.5(b)(1). Rule 35.3, however, states that “the trial court clerk is responsible for preparing,

certifying, and timely filing the clerk’s record . . . .” TEX. R. APP. P. 35.3(a). Based on rules

34.2, 34.5, and 35.3, we STRIKE the parties’ agreed clerk’s record and ORDER the parties, within ten days of the date of this order, to file with the trial court clerk a written designation

specifying the items to be included in the record. Id. 34.2, 34.5. We further ORDER Collin

County District Clerk Andrea Stroh Thompson to file, within ten days of the filing of the written

designation and payment of the clerk’s fee, a clerk’s record containing the requested items. See

id. 35.3(a). Upon filing of the clerk’s record, the parties shall within 30 days amend their briefs

to include appropriate citations to the clerk’s record. TEX. R. APP. P. 38.1(d), (g), (i) . We

caution appellant that failure to file a properly certified clerk’s record may result, without

further order, in dismissal of the appeal for want of prosecution.

/s/ CAROLYN WRIGHT CHIEF JUSTICE