Jennie Larry Johnson v. Freo Texas LLC

Opinion

ACCEPTED 01-15-00398-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 10/5/2015 8:22:56 PM CHRISTOPHER PRINE CLERK

FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 10/5/2015 8:22:56 PM CHRISTOPHER A. PRINE Clerk •

CAUSE NO. 15-CCV-054223

FREO TEXAS, LLC A DELAWARE § IN THE COUNTY CIVIL COURT LIMITED LIABILITY COMPANY §

v. § AT LAW NUMBER THREE (3) § JENNIE LARRY JOHNSON § and/or All Occupants of § 1907 Doliver Circle § Missouri City, Texas 77489 § FORT BEND COUNTY, TEXAS

FINAL JUDGMENT

On the 27'" day of January, 2015, came on to be heard the above-entitled and -numbered

cause wherein FREQ TEXAS, LLC A DELAWARE LIMITED LIABILITY COMPANY is the

Plaintiff, and JENNIE LARRY JOHNSON and/or All Occupants of I 907 Do liver Circle, Missouri

City, Fort Bend County, Texas 17489, are the Defendants.

The Plaintiffs appeared by their local counsel William D. Kee, III, Attorney at Law, and

.--- Tire Defendant failed to apperu, OR

./ The Defendant appeared in person and announced ready for trial; OR

Tke Qefemlaat app@ared in p9rson and through attorney,

!Ille! amm anced ready for tdal.

The Court finds that notice of trial setting was served on Defendant in accordance with

Rule 2la.

Citation was served according to law and returned to the clerk where it remained on file for

the time required by law. The Court, having read the pleadings and the papers on file, and having

heard the evidence presented, is of the opinion that the allegations of the Plaintiffs' petition are true

and that Plaintiff is entitled to a judgment for possession.

65 IT IS THEREFORE, ORDERED, ADJUDGED, AND DECREED that Plaintiff, FREO

TEXAS, LLC A DELAWARE LIMITED LIABILITY COMP ANY, is awarded judgment against

Defendants, JENNIE LARRY JOHNSON and/or All Occupants. for possession of the property

located at 1907 Doliver Circle, Missouri City, Fort Bend County, Texas 77489, and that a Writ of

Possession issue to the proper officer commanding him to seize possession of said premises and

deliver same to Plaintiff after said Writ of Possession has been duly filed by Plaintiff if Defendants

have not vacated the herein described premises by f .z h1.;'"' 'J I( '2015.

II' IS FURI'HER ORDERED that the supersedeas bond 1s hereby set m the amount of

$_"'\v~1..,.1 ~'k~"~'J_._1~i'D~---- and shall be in the form of cash, cashier's check or corporate surety

licensed by and authorized to do business in the State of Texas for such purposes.

All costs of court are hereby taxed agamst the party by whom mcurred, for all of which let

execution issue.

Plaimiff is allewed stteh writs and prneesses as may be neeessary in the enforeement and

collection of this judgment.

All relief not expressly granted herein is denied.

FILED FOR RECO N O - TIME......,,,t;-~.'~:

FILED FOR RECOR NQ _ _ TIME___,~

66 ATTORNEY AT LAW TBA#24007470 19855 SOUTHWEST FREEWAY, SUITE 330 ~~ County Clerk Fort Bend Co. Texas SUGAR LAND, TEXAS 77479 TEL: (281) 313-5300 FAX: (281) 313-5305 Local Counsel.for Plaintiff

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KWWSZZZHFIUJRY FJLE LQWH[WLG["6,' E DHFDGIIHIHE E  PF WUXH QRGH VHB UJQ GLY   IN THE SUPREME COURT OF TEXAS

Misc. Docket No. 10-9164

APPROVAL OF LOCAL RULES FOR THE COURT OF APPEALS FOR THE FIRST COURT OF APPEALS DISTRICT OF TEXAS

ORDERED that:

Pursuant to Texas Rule of Appellate Procedure 1.2, this Court approves the following amendments to the local rules for the Court of Appeals for the First Court of Appeals District of Texas, effective November 1, 2010. To the extent these local rules vary from the standards in Appendix C to the Texas Rules of Appellate Procedure, these local rules control.

SIGNED this day of September, 2010.

Wallace B. Jefferson, Chief Ju/ti

NatHan L. Hecht, Justice

" ■' ■ mm^^m^^^^^^^^^^^^^^^^^^ mr-m^^m r.^^— f ■ ^ — — ' "J^'W

ale Wainwright, Justice //

David M. Medina, Justice Paul W. Green, Justice

Phil Johnson, Justice

Don R/Willett, Justice

a M. Guzman, Justice

Debra H. Lehrmann, Justice

Misc. Docket No. 10 - 9164 Page 2 First Court of Appeals Local Rules

Rule 1. Assignment of Related Cases to and Transfers of Related Cases between the first and fourteenth courts of appeals.

Rule 1.1. Definitions.

(a) "Underlying case" means a trial court case number that is filed in one of the counties that comprise the jurisdiction of the First and Fourteenth Courts of Appeals and is subsequently the subject of either an appeal or original proceeding in the First or Fourteenth Court of Appeals.

(b) "Related" means arising from the same underlying case or a case that has been remanded by either the First or Fourteenth Court of Appeals and includes cases severed from the main case.

(c) "Previously filed" means that a case has been opened at either the First or Fourteenth Court of Appeals and that an appellate case number has been assigned to the underlying case.

Rule 1.2. Assignment of Original Proceedings to either the First or Fourteenth Court of Appeals.

(a) Except as noted below, assignment of original proceedings must be alternated between the First and Fourteenth Courts of Appeals.

(b) During the first six months of a calendar year, relators must first present any original proceeding to the clerk of the First Court of Appeals. During the last six months of a calendar year, relators must first present any original proceeding to the clerk of the Fourteenth Court of Appeals. Hereinafter, the "intake clerk" means the clerk receiving the original proceeding.

(c) The intake clerk must log in each original proceeding sequentially, assigning original proceedings between the First and Fourteenth Courts of Appeals on an alternating basis.

(d) If a related appeal or original proceeding has been previously filed in one of the courts, the intake clerk must assign the original proceeding in the manner provided for in Rule 1.3(a)-(b) below. Rule 1.3. Notice of and Assignment of Related Cases in Original Proceedings.

(a) At the time an original proceeding is filed in either the First or Fourteenth Court of Appeals, the relator must file a notice indicating whether any related appeal or original proceeding has been previously filed in either the First or Fourteenth Court of Appeals. The notice must include the caption, trial court case number, and appellate court case number of the related appeal or original proceeding.

(b) If any related appeal or original proceeding has been previously filed in or assigned to either the First or Fourteenth Court of Appeals, the clerk of the appellate court receiving the original proceeding must assign it to the court of appeals in which the related appeal or original proceeding was previously filed.

(c) If related appeals or original proceedings have been filed in both the First and Fourteenth Courts of Appeals, the clerk of the appellate court receiving the original proceeding must assign it to the court of appeals in which the most recent related appeal or original proceeding was previously filed or assigned.

Rule 1.4. Notice of and Assignment of Related Cases in Appeals.

(a) At the time the notice of appeal is filed in the trial court, the notice of appeal must contain a statement indicating whether a related appeal or original proceeding has been previously filed in either the First or Fourteenth Court of Appeals and must include the caption, trial court case number, and appellate court case number of the related appeal or original proceeding.

(b) If a related appeal or original proceeding has been previously filed in or assigned to either the First or Fourteenth Court of Appeals, the trial court clerk must assign the appeal to the court of appeals in which the related appeal or original proceeding was previously filed, pursuant to TEX. Gov'T CODE Ann. § 22.202(h) (Vernon 2004), which provides for companion cases to be assigned to the same court of appeals.

(c) If related appeals or original proceedings have been previously filed in both the First and Fourteenth Courts of Appeals, the trial court clerk must assign the appeal to the court of appeals in which the most recent related appeal or original proceeding was previously filed or assigned, pursuant to Tex. Gov't Code Ann. § 22.202(h) (Vernon 2004), which provides for companion cases to be assigned to the same court of appeals. Rule 1.5. Transfers of Related Cases Between the First and Fourteenth Courts of Appeals.

(a) The First or Fourteenth Court of Appeals may, either sua sponte or on motion of a party, transfer an appeal or an original proceeding to the other Houston court of appeals when a related appeal or original proceeding has been previously filed.

(b) The transferring court must forward the case file, together with a transfer order, to the clerk of the transferee court. The clerk of the transferee court must docket the transferred appeal or original proceeding and must assign it a new appellate case number pursuant to TEX. R. App. P. 12.1 and 12.2.

Rule 2. Clerk's Record in Civil Cases.

Unless otherwise stated, all references to a rule herein are to the Texas Rules of Appellate Procedure.

Rule 2.1. Preparation of Clerk's Record.

The trial court clerk must prepare and file the clerk's record in accordance with Rules 34.5 and 35. Even if more than one notice of appeal or request for inclusion of items is filed, the clerk should prepare only one record in a case. To prepare the clerk's record, the trial court clerk must:

(a) gather the documents required by Rule 34.5(a) and those requested by a party under Rule 34.5(b); (b) start each document on a new page; (c) include the date of filing on each document; (d) arrange the documents in ascending chronological order, by date of filing or occurrence;

(e) start the page numbering on the front cover of the first volume of the clerk's record and continue to number all pages consecutively — including the front and back covers, tables of contents, certification page, and separator pages, if any — until the final page of the clerk's record, without regard for the number of volumes in the clerk's record, and place each page number at the bottom of each page;

(f) prepare, label, and certify the clerk's record as required by this rule; (g) as far as practicable, include the date of signing by the judge on each order and judgment; (h) include on the front cover of the first volume of the clerk's record, whether filed in paper or electronic form, the following information, in substantially the following form: 3 CLERK'S RECORD

VOLUME of

Trial Court Cause No.

In the (District or County) Court

of County, Texas,

Honorable , Judge Presiding

, Plaintiffs)

vs.

, Defendant(s)

Appealed to the

(Supreme Court of Texas at Austin, Texas, or Court of Criminal Appeals of Texas at Austin, Texas, or Court of Appeals for the District of Texas, at , Texas).

Attorney for Appellant(s): Name

Address

Telephone no.: Fax no.: E-mail address: SBOTno.: Attorney for: , Appellant(s)

Name of clerk preparing the clerk's record: (i) include on the front cover of the second and subsequent volumes of the clerk's record the same information required under 2.1(h), in substantially the same form; (j) prepare and include after the front cover of the clerk's record a detailed table of contents identifying each document in the entire record (including sealed documents), the date each document was filed, and, except for sealed documents, the page on which each document begins. The table of contents must be double- spaced and conform to the order in which documents appear in the clerk's record, rather than in alphabetical order. If the clerk's record consists of multiple volumes, the table of contents must indicate the page on which each volume begins. If the clerk's record is filed in electronic form, the clerk must use bookmarks to link each document description in the table of contents, except descriptions of sealed documents, to the page on which each document begins; and (k) conclude the clerk's record with a certificate in substantially the following form:

The State of Texas ) County of ) I, , Clerk of the Court of County, Texas do hereby certify that the documents contained in this record to which this certification is attached are all of the documents specified by Texas Rule of Appellate Procedure 34.5(a) and all other documents timely requested by a party to this proceeding under Texas Rule of Appellate Procedure 34.5(b).

GIVEN UNDER MY HAND AND SEAL at my office in , County, Texas this day of . signature of clerk name of clerk title

If the clerk's record is filed in electronic form, the trial court clerk's login and password serves as the clerk's signature on the certification page. The clerk also must include either a scanned image of the clerk's signature or "/s/" and the clerk's name typed in the space where the signature would otherwise appear.

Rule 2.2. Filing an Electronic Clerk's Record.

The First Court of Appeals prefers the filing of clerk's records in electronic form. When filing a clerk's record in electronic form, the trial court clerk must:

(a) scan each image in black and white with a resolution of 300 dots per inch (dpi) when filing electronic documents created as scanned images; (b) create electronic bookmarks to mark the first page of each document in the clerk's record; (c) limit the size of each computer file to 100 MB or less; (d) file each computer file in text-searchable Portable Document Format (PDF), compatible with the latest version of Adobe Reader; (e) include the following elements in the computer file name, exemplified as FortBend-DC-09-29-CLR-Vol001 .pdf: (1) county name without spaces between words; (2) a hyphen; (3) the trial-court cause number, preferably in the format the trial court uses for cause numbers; (4) a hyphen; (5) "CLR-Vol"; (6) the volume number as three digits with leading zeroes if needed; (7) a period; and (8) "pdf; (f) if there are multiple volumes in a clerk's record, use volume numbers pursuant to 2.2(e)(6) to identify the sequential order of the volumes (e.g., FortBend-DC-09- 29-CLR-Vol001.pdf, FortBend-DC-09-29-CLR-Vol002.pdf, etc.); (g) if filing a sealed document, include a hyphen, the number of the sealed document, and the term "Sealed" after the term "CLR" in the computer file name (e.g., FortBend-DC-09-29-CLR-1 Sealed.pdf, FortBend-DC-09-29-CLR-2Sealed.pdf), and file each sealed document separately from the remainder of the clerk's record; (h) if filing a supplement to the clerk's record, include a hyphen, the number of the supplement, the term "Supp," and another hyphen after the term "CLR" in the computer file name (e.g., FortBend-DC-09-29-CLR-lSupp-Vol001.pdf, FortBend-DC-09-29-CLR-2Supp-Vol001 .pdf); and (i) submit each computer file to the Texas Appeals Management and E-filing System web portal, using the guidelines on the First Court of Appeals' website.

Rule 2.3. Filing a Paper Clerk's Record.

When filing a paper record, the trial court clerk must:

(a) bind the documents together in one or more volumes with a top bound, two-inch capacity, two-and-three-quarter-inch, center-to-center removable fastener and no other binding materials, like wax, ribbon, glue, staples, tape, etc.; (b) include no more than 500 pages in each volume, or limit the thickness of each volume to a maximum of two inches; (c) include only one-sided copies in the clerk's record; (d) number the first volume "1" and each succeeding volume sequentially; (e) if practicable, make a legible copy of the documents on opaque, white, &V2 x 11 inch paper; and (f) place each sealed document in a securely sealed, manila envelope that is not bound with the other documents in the clerk's record.

In the event of a material violation of this rule 2 in the preparation of the clerk's record, on motion of a party or on its own initiative, the appellate court may require the trial court clerk to amend the clerk's record or to prepare a new clerk's record in proper form — and provide it to any party who has previously made a copy of the original, defective clerk's record — at the trial clerk's expense. A supplement to a clerk's record must also be prepared in conformity with this rule.

Rule 3. Electronic Reporter's Record in Civil Cases.

(a) The court reporter or court recorder must prepare and file the reporter's record in accordance with Rules 34.6 and 35 of the Texas Rules of Appellate Procedure and the Uniform Format Manual for Texas Reporters' Records. Even if more than one notice of appeal or request for preparation of the record is filed, the court reporter or court recorder should prepare only one record in the case.

(b) If proceedings were recorded stenographically, in lieu of filing the reporter's record of the proceedings on paper, the court reporter must file the reporter's record in an electronic format via the Texas Appeals Management and E-filing System web portal, in accordance with Section 8 of the Uniform Format Manual for Texas Reporters' Records and the guidelines posted on the First Court of Appeals' website. .

(c) In the event of a material violation of this rule in the preparation of a reporter's record, on motion of a party or on the court's own initiative, the appellate court may require the court reporter or court recorder to amend the reporter's record or to prepare a new reporter's record in proper form — and provide it to any party who has previously made a copy of the original, defective reporter's record — at the reporter's or recorder's expense. A court reporter who fails to comply with the requirements of the Uniform Format Manual for Texas Reporters' Records is also subject to discipline by the Court Reporters Certification Board.

Rule 4. Suspension of Local Rules for Electronic Filings.

Upon receipt of a motion or on its own initiative, the First Court of Appeals may, to expedite a decision or for other good cause, suspend a local rule pertaining to the filing of electronic records in a particular case and order a different procedure in accordance with the Texas Rules of Appellate Procedure.  &,9 ,/3 5$&7,&($1'5(0 (',(6&2'(&+$3 7(5/,0 ,7$7,216

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KWWSZZZVWDWXWHVOHJLVVWDWHW[XV627:'RFV&1KWP&1KWP  Page 40 TEXAS RULES OF APPELLATE PROCEDURE

(1) Time for Request. At any time before the court clerk for inclusion in the clerk’s record or a clerk’s record is prepared, any party may file supplement. If the parties cannot agree, the trial with the trial court clerk a written designation court must — on any party's motion or at the specifying items to be included in the record. appellate court's request — determine what constitutes an accurate copy of the missing item and (2) Request Must be Specific. A party requesting order it to be included in the clerk’s record or a that an item be included in the clerk’s record supplement. must specifically describe the item so that the clerk can readily identify it. The clerk will (f) Original Documents. If the trial court determines disregard a general designation, such as one for that original documents filed with the trial court “all papers filed in the case.” clerk should be inspected by the appellate court or sent to that court in lieu of copies, the trial court (3) Requesting Unnecessary Items. In a civil case, must make an order for the safekeeping, if a party requests that more items than transportation, and return of those original necessary be included in the clerk’s record or documents. The order must list the original any supplement, the appellate court may — documents and briefly describe them. All the regardless of the appeal's outcome — require documents must be arranged in their listed sequence that party to pay the costs for the preparation of and bound firmly together. On any party's motion or the unnecessary portion. its own initiative, the appellate court may direct the trial court clerk to send it any original document. (4) Failure to Timely Request. An appellate court must not refuse to file the clerk’s record or a (g) Additional Copies of Clerk’s Record in Criminal supplemental clerk’s record because of a Cases. In a criminal case, the clerk’s record must be failure to timely request items to be included in made in duplicate, and in a case in which the death the clerk’s record. penalty was assessed, in triplicate. The trial court clerk must retain the copy or copies for the parties to (c) Supplementation. use with the court’s permission.

(1) If a relevant item has been omitted from the (h) Clerk May Consult With Parties. The clerk may clerk’s record, the trial court, the appellate consult with the parties concerning the contents of court, or any party may by letter direct the trial the clerk’s record. court clerk to prepare, certify, and file in the appellate court a supplement containing the 34.6. Reporter’s Record omitted item. (a) Contents. (2) If the appellate court in a criminal case orders the trial court to prepare and file findings of (1) Stenographic Recording. If the proceedings fact and conclusions of law as required by law, were stenographically recorded, the reporter’s or certification of the defendant's right of record consists of the court reporter’s appeal as required by these rules, the trial court transcription of so much of the proceedings, clerk must prepare, certify, and file in the and any of the exhibits, that the parties to the appellate court a supplemental clerk’s record appeal designate. containing those findings and conclusions. (2) Electronic Recording. If the proceedings were (3) Any supplemental clerk’s record will be part of electronically recorded, the reporter’s record the appellate record. consists of certified copies of all tapes or other audio-storage devices on which the (d) Defects or Inaccuracies. If the clerk’s record is proceedings were recorded, any of the exhibits defective or inaccurate, the appellate clerk must that the parties to the appeal designate, and inform the trial court clerk of the defect or certified copies of the logs prepared by the inaccuracy and instruct the clerk to make the court recorder under Rule 13.2. correction. (b) Request for preparation. (e) Clerk’s Record Lost or Destroyed. If a filing designated for inclusion in the clerk’s record has (1) Request to Court Reporter. At or before the been lost or destroyed, the parties may, by written time for perfecting the appeal, the appellant stipulation, deliver a copy of that item to the trial must request in writing that the official reporter

40 TEXAS RULES OF APPELLATE PROCEDURE Page 41

prepare the reporter’s record. The request must (d) Supplementation. If anything relevant is omitted designate the exhibits to be included. A request from the reporter’s record, the trial court, the to the court reporter — but not the court appellate court, or any party may by letter direct the recorder — must also designate the portions of official court reporter to prepare, certify, and file in the proceedings to be included. the appellate court a supplemental reporter’s record containing the omitted items. Any supplemental (2) Filing. The appellant must file a copy of the reporter’s record is part of the appellate record. request with the trial court clerk. (e) Inaccuracies in the Reporter’s Record. (3) Failure to Timely Request. An appellate court must not refuse to file a reporter’s record or a (1) Correction of Inaccuracies by Agreement. The supplemental reporter’s record because of a parties may agree to correct an inaccuracy in failure to timely request it. the reporter’s record, including an exhibit, without the court reporter's recertification. (c) Partial Reporter’s Record. (2) Correction of Inaccuracies by Trial Court. If (1) Effect on Appellate Points or Issues. If the the parties cannot agree on whether or how to appellant requests a partial reporter’s record, correct the reporter's record so that the text the appellant must include in the request a accurately discloses what occurred in the trial statement of the points or issues to be presented court and the exhibits are accurate, the trial on appeal and will then be limited to those court must – after notice and hearing – settle points or issues. the dispute. If the court finds any inaccuracy, it must order the court reporter to conform the (2) Other Parties May Designate Additions. Any reporter’s record (including text and any other party may designate additional exhibits exhibits) to what occurred in the trial court, and and portions of the testimony to be included in to file certified corrections in the appellate the reporter’s record. court.

(3) Costs; Requesting Unnecessary Matter. (3) Correction After Filing in Appellate Court. If Additions requested by another party must be the dispute arises after the reporter’s record has included in the reporter’s record at the been filed in the appellate court, that court may appellant's cost. But if the trial court finds that submit the dispute to the trial court for all or part of the designated additions are resolution. The trial court must then proceed as unnecessary to the appeal, the trial court may under subparagraph (e)(2). order the other party to pay the costs for the preparation of the unnecessary additions. This (f) Reporter’s Record Lost or Destroyed. An appellant paragraph does not affect the appellate court's is entitled to a new trial under the following power to tax costs differently. circumstances:

(4) Presumptions. The appellate court must (1) if the appellant has timely requested a presume that the partial reporter’s record reporter’s record; designated by the parties constitutes the entire record for purposes of reviewing the stated (2) if, without the appellant's fault, a significant points or issues. This presumption applies even exhibit or a significant portion of the court if the statement includes a point or issue reporter's notes and records has been lost or complaining of the legal or factual destroyed or – if the proceedings were insufficiency of the evidence to support a electronically recorded – a significant portion specific factual finding identified in that point of the recording has been lost or destroyed or is or issue. inaudible;

(5) Criminal Cases. In a criminal case, if the (3) if the lost, destroyed, or inaudible portion of statement contains a point complaining that the the reporter’s record, or the lost or destroyed evidence is insufficient to support a finding of exhibit, is necessary to the appeal's resolution; guilt, the record must include all the evidence and admitted at the trial on the issue of guilt or innocence and punishment. (4) if the lost, destroyed or inaudible portion of the reporter's record cannot be replaced by

41 Page 42 TEXAS RULES OF APPELLATE PROCEDURE

agreement of the parties, or the lost or the rules. In subdivision 34.2, the requisites of an agreed record destroyed exhibit cannot be replaced either by are more clearly stated. Former Rule 50(d), regarding the burden agreement of the parties or with a copy to file a complete record, is repealed. Subdivision 34.4 is from determined by the trial court to accurately former Rules 51(c) and 53(h). Former Rule 50(f), regarding a duplicate with reasonable certainty the original violation of the rules, is repealed. Subparagraph 34.5(b)(3) exhibit. allows the appellate court to tax costs against a party for requiring unnecessary items to be included in the clerk’s record. (g) Original Exhibits. Paragraph 34.5(c) is new and provides for supplementation of the clerk’s record. The provisions of paragraph 34.5(d) are from (1) Reporter May Use in Preparing Reporter’s former Rule 55(b). The provisions of paragraph 34.5(e) are from Record. At the court reporter's request, the trial former Rule 50(e). Paragraph 34.5(h) specifically allows the court clerk must give all original exhibits to the clerk to consult with the parties to determine the contents of the reporter for use in preparing the reporter’s clerk’s record. Paragraph 34.6(a), defining the reporter’s record, record. Unless ordered to include original is new. Former Rules 53(b) (Other Requests), (d) (Partial exhibits in the reporter’s record, the court Statement), and (e) (Unnecessary Portions) are merged into reporter must return the original exhibits to the paragraph 34.6(c). Paragraph 34.6(d) is new. Paragraph 34.6(e) clerk after copying them for inclusion in the is from former Rule 55. Paragraph 34.6(f) is from former Rule reporter’s record. If someone other than the 50(d). The provisions of former Rules 53(f) (Certification by trial court clerk possesses an original exhibit, Court Reporter) and (h) (Form) are moved to the Order of the either the trial court or the appellate court may Supreme Court and the Court of Criminal Appeals on the order that person to deliver the exhibit to the preparation of the record. Former Rule 53(I) (Narrative trial court clerk. Statement) is repealed. The provisions of former Rule 53(j) (Free Statement of Facts) are moved to Rule 20. Former Rule (2) Use of Original Exhibits by Appellate Court. If 53(k) (Duty of Appellant to File) is repealed; it is now the duty the trial court determines that original exhibits of the court reporter to file the reporter’s record. Paragraph should be inspected by the appellate court or 34.6(g) is from former Rule 51(d). Former Rule 53(g) is now sent to that court in lieu of copies, the trial paragraph 34.6(I). Former Rule 53(l) is now paragraph 34.6(h). court must make an order for the safekeeping, The need for two duplicate records in a death penalty case was transportation, and return of those exhibits. The created by the habeas corpus provision in Code of Criminal order must list the exhibits and briefly describe Procedure article 11.071. them. To the extent practicable, all the exhibits must be arranged in their listed order and Comment to 2002 change: Rule 34.5(a) is amended to bound firmly together before being sent to the require that the record in a criminal case include the certification appellate clerk. On any party's motion or its of defendant's right of appeal; see Rule 25.2(d). Rule 34.5(c) is own initiative, the appellate court may direct amended to make clear that an appellate court may order the trial the trial court clerk to send it any original court to make such a certification for inclusion in a supplemental exhibit. clerk's record. Subparagraphs 34.6(e) and (f) are amended to clarify the application to exhibits. The language in subparagraph (h) Additional Copies of Reporter’s Record in Criminal (e)(2) referring to the text of the record is simplified without Cases. In a criminal case in which a party requests substantive change. Subparagraph (e)(3) incorporates the a reporter’s record, the court reporter must prepare a procedures specified in (e)(2). The language in subparagraph (f) duplicate of the reporter’s record and file it with the is clarified to require agreement only as to the portion of the text trial court clerk. In a case where the death penalty at issue, and to provide that the trial court may determine that a was assessed, the court reporter must prepare two copy of an exhibit should be used even if the parties cannot duplicates of the reporter’s record. agree.

(i) Supreme Court and Court of Criminal Appeals May Set Fee. From time to time, the Supreme Court and Rule 35. Time to File Record; the Court of Criminal Appeals may set the fee that Responsibility for Filing Record the court reporters may charge for preparing the reporter’s record. 35.1. Civil Cases

Notes and Comments The appellate record must be filed in the appellate court within 60 days after the judgment is signed, except as follows: Comment to 1997 change: Former Rules 50, 51 and 53 are merged. Clerk’s record is substituted for transcript, and (a) if Rule 26.1(a) applies, within 120 days after the reporter’s record is substituted for statement of facts throughout judgment is signed;

42 TEXAS RULES OF APPELLATE PROCEDURE Page 43

(b) if Rule 26.1(b) applies, within 10 days after the requested by the clerk or reporter. Each extension notice of appeal is filed; or must not exceed 30 days in an ordinary or restricted appeal, or 10 days in an accelerated appeal. The (c) if Rule 26.1(c) applies, within 30 days after the appellate court must allow the record to be filed late notice of appeal is filed. when the delay is not the appellant’s fault, and may do so when the delay is the appellant’s fault. The 35.2. Criminal Cases appellate court may enter any order necessary to ensure the timely filing of the appellate record. The appellate record must be filed in the appellate court: Notes and Comments (a) if a motion for new trial is not filed, within 60 days after the date the sentence is imposed or suspended Comment to 1997 change: This is former Rule 54. In in open court or the order appealed from is signed; subdivision 35.1, the time to file the record in civil cases is based on the date the judgment is signed except in accelerated and (b) if a timely motion for new trial is filed and denied, restricted appeals, in which the time to file the record is based on within 120 days after the date the sentence is the date the notice of appeal is filed. Subdivision 35.3 is new imposed or suspended in open court; or and makes it the responsibility of the trial court clerk and court reporter to file the record. Former Rule 54(c), providing for an (c) if a motion for new trial is granted, within 60 days extension of time to file the record, is repealed as unnecessary. after the order granting the motion is signed. The trial court clerk and court reporter should make arrangements with the court of appeals if additional time is 35.3. Responsibility for Filing Record required to file the record, as suggested in Rule 37.3

(a) Clerk’s Record. The trial court clerk is responsible for preparing, certifying, and timely filing the clerk’s Rule 36. Agency Record in record if: Administrative Appeals (1) a notice of appeal has been filed, and in 36.1. Scope criminal proceedings, the trial court has certified the defendant's right of appeal, as This rule applies only to cases involving judicial review of required by Rule 25.2(d); and state agency decisions in contested cases under the Administrative Procedure Act. (2) the party responsible for paying for the preparation of the clerk’s record has paid the 36.2. Inclusion in Appellate Record clerk's fee, has made satisfactory arrangements with the clerk to pay the fee, or is entitled to The record of an agency proceeding filed in the trial court appeal without paying the fee. may be included in either the clerk’s record or the reporter’s record. (b) Reporter’s Record. The official or deputy reporter is responsible for preparing, certifying, and timely 36.3. Correcting the Record filing the reporter’s record if: (a) Correction by Agreement. At any stage of the (1) a notice of appeal has been filed; proceeding, the parties may agree to correct an agency record filed under Section 2001.175(b) of the (2) the appellant has requested that the reporter’s Government Code to ensure that the agency record record be prepared; and accurately reflects the contested case proceedings before the agency. The court reporter need not (3) the party responsible for paying for the recertify the agency record. preparation of the reporter’s record has paid the reporter’s fee, or has made satisfactory (b) Correction by Trial Court. If the parties cannot agree arrangements with the reporter to pay the fee, to a correction to the agency record, the appellate or is entitled to appeal without paying the fee. court must — on any party's motion or its own incentive — send the question to the trial court. (c) Courts to Ensure Record Timely Filed. The trial and After notice and hearing, the trial court must appellate courts are jointly responsible for ensuring determine what constitutes an accurate copy of the that the appellate record is timely filed. The appellate agency record and order the agency to send an court may extend the deadline to file the record if

43 Page 28 TEXAS RULES OF APPELLATE PROCEDURE

judgment creditor. In subdivision 24.2, the provisions for (1) identify the trial court and state the case's trial determining the amount of the bond or deposit are simplified. court number and style; All provisions regarding superseding a judgment for an interest in property are merged into subparagraph 24.2(a)(2) The (2) state the date of the judgment or order appealed procedure for allowing security in a lesser amount is moved to from; paragraph 24.2(b) and is made applicable to all judgments. Subdivision 24.4 is taken from former Rule 49. The procedure (3) state that the party desires to appeal; for appellate review is more precisely stated. (4) state the court to which the appeal is taken Comment to 2008 change: Subdivision 24.2(c) is amended unless the appeal is to either the First or to clarify the procedure in determining net worth. A debtor's Fourteenth Court of Appeals, in which case the affidavit of net worth must be detailed, but the clerk must file notice must state that the appeal is to either of what is tendered without determining whether it complies with those courts; the rule. If the trial court orders that additional or other security be given, the debtor is afforded time to comply. Subdivision (5) state the name of each party filing the notice; 24.4(a) is revised to clarify that a party seeking relief from a supersedeas ruling should file a motion in the court of appeals (6) in an accelerated appeal, state that the appeal is that has or presumably will have jurisdiction of the appeal. After accelerated and state whether it is a parental the court of appeals has ruled, a party may seek review by filing termination or child protection case, as defined a petition for writ of mandamus in the Supreme Court. See In re in Rule 28.4; Smith / In re Main Place Custom Homes, Inc., 192 S.W.3d 564, 568 (Tex. 2006) (per curiam). (7) in a restricted appeal:

(A) state that the appellant is a party affected Rule 25. Perfecting Appeal by the trial court’s judgment but did not participate — either in person or through 25.1. Civil Cases counsel — in the hearing that resulted in the judgment complained of; (a) Notice of Appeal. An appeal is perfected when a written notice of appeal is filed with the trial court (B) state that the appellant did not timely file clerk. If a notice of appeal is mistakenly filed with either a postjudgment motion, request for the appellate court, the notice is deemed to have findings of fact and conclusions of law, been filed the same day with the trial court clerk, and or notice of appeal; and the appellate clerk must immediately send the trial court clerk a copy of the notice. (C) be verified by the appellant if the appellant does not have counsel. (b) Jurisdiction of Appellate Court. The filing of a notice of appeal by any party invokes the appellate (8) state, if applicable, that the appellant is court’s jurisdiction over all parties to the trial court’s presumed indigent and may proceed without judgment or order appealed from. Any party’s advance payment of costs as provided in Rule failure to take any other step required by these rules, 20.1(a)(3). including the failure of another party to perfect an appeal under (c), does not deprive the appellate court (e) Service of Notice. The notice of appeal must be of jurisdiction but is ground only for the appellate served on all parties to the trial court's final judgment court to act appropriately, including dismissing the or, in an interlocutory appeal, on all parties to the appeal. trial court proceeding.

(c) Who Must File Notice. A party who seeks to alter (f) Clerk’s Duties. The trial court clerk must the trial court’s judgment or other appealable order immediately send a copy of the notice of appeal to must file a notice of appeal. Parties whose interests the appellate court clerk and to the court reporter or are aligned may file a joint notice of appeal. The court reporters responsible for preparing the appellate court may not grant a party who does not reporter’s record. file a notice of appeal more favorable relief than did the trial court except for just cause. (g) Amending the Notice. An amended notice of appeal correcting a defect or omission in an earlier filed (d) Contents of Notice. The notice of appeal must: notice may be filed in the appellate court at any time before the appellant's brief is filed. The amended

28 Page 52 TEXAS RULES OF APPELLATE PROCEDURE

(c) reverse the trial court's judgment in whole or in part Rule 44. Reversible Error and render the judgment that the trial court should have rendered; 44.1. Reversible Error in Civil Cases

(d) reverse the trial court's judgment and remand the (a) Standard for Reversible Error. No judgment may be case for further proceedings; reversed on appeal on the ground that the trial court made an error of law unless the court of appeals (e) vacate the trial court's judgment and dismiss the concludes that the error complained of: case; or (1) probably caused the rendition of an improper (f) dismiss the appeal. judgment; or

43.3.Rendition Appropriate Unless Remand Necessary (2) probably prevented the appellant from properly presenting the case to the court of appeals. When reversing a trial court's judgment, the court must render the judgment that the trial court should have rendered, (b) Error Affecting Only Part of Case. If the error except when: affects part of, but not all, the matter in controversy and that part is separable without unfairness to the (a) a remand is necessary for further proceedings; or parties, the judgment must be reversed and a new trial ordered only as to the part affected by the error. (b) the interests of justice require a remand for another The court may not order a separate trial solely on trial. unliquidated damages if liability is contested.

43.4. Judgment for Costs in Civil Cases 44.2. Reversible Error in Criminal Cases

In a civil case, the court of appeals’ judgment should (a) Constitutional Error. If the appellate record in a award to the prevailing party the appellate costs — including criminal case reveals constitutional error that is preparation costs for the clerk’s record and the reporter’s record subject to harmless error review, the court of appeals — that were incurred by that party. But the court of appeals may must reverse a judgment of conviction or punishment tax costs otherwise as required by law or for good cause. unless the court determines beyond a reasonable doubt that the error did not contribute to the 43.5. Judgment Against Sureties in Civil Cases conviction or punishment.

When a court of appeals affirms the trial court judgment, (b) Other Errors. Any other error, defect, irregularity, or modifies that judgment and renders judgment against the or variance that does not affect substantial rights appellant, the court of appeals must render judgment against the must be disregarded. sureties on the appellant's supersedeas bond, if any, for the performance of the judgment and for any costs taxed against the (c) Presumptions. Unless the following matters were appellant. disputed in the trial court, or unless the record affirmatively shows the contrary, the court of 43.6. Other Orders appeals must presume:

The court of appeals may make any other appropriate order (1) that venue was proved in the trial court; that the law and the nature of the case require. (2) that the jury was properly impaneled and Notes and Comments sworn;

Comment to 1997 changes: Former Rules 80(a) - (c) and (3) that the defendant was arraigned; 82 are merged. Paragraph 43.2(e) allows the court of appeals to vacate the trial court’s judgment and dismiss the case; paragraph (4) that the defendant pleaded to the indictment or 43.2(f) allows the court of appeals to dismiss the appeal. Both other charging instrument; and provisions are new but codify current practice. Paragraph 43.3(a) is moved here from former Rule 81(c). Paragraph (5) that the court's charge was certified by the trial 43.3(b), allowing a remand in the interest of justice, is new. court and filed by the clerk before it was read Subdivisions 43.4 and 43.5 are from former Rule 82. to the jury.

44.3. Defects in Procedure

52 Contract Concerning Page of 9 4-28-2014 PROMULGATED BY THE TEXAS (Address REAL ESTATE COMMISSION (TREC) of Property) EQUAL HOUSING OPPORTUNITY ONE TO FOUR FAMILY RESIDENTIAL CONTRACT (RESALE) NOTICE: Not For Use For Condominium Transactions

1. PARTIES: The parties to this contract are (Seller) and (Buyer). Seller agrees to sell and convey to Buyer and Buyer agrees to buy from Seller the Property defined below. 2. PROPERTY: The land, improvements and accessories are collectively referred to as the “Property”. A. LAND: Lot Block , Addition, City of , County of , Texas, known as (address/zip code), or as described on attached exhibit. B. IMPROVEMENTS: The house, garage and all other fixtures and improvements attached to the above-described real property, including without limitation, the following permanently installed and built-in items, if any: all equipment and appliances, valances, screens, shutters, awnings, wall-to-wall carpeting, mirrors, ceiling fans, attic fans, mail boxes, television antennas, mounts and brackets for televisions and speakers, heating and air-conditioning units, security and fire detection equipment, wiring, plumbing and lighting fixtures, chandeliers, water softener system, kitchen equipment, garage door openers, cleaning equipment, shrubbery, landscaping, outdoor cooking equipment, and all other property owned by Seller and attached to the above described real property. C. ACCESSORIES: The following described related accessories, if any: window air conditioning units, stove, fireplace screens, curtains and rods, blinds, window shades, draperies and rods, door keys, mailbox keys, above ground pool, swimming pool equipment and maintenance accessories, artificial fireplace logs, and controls for: (i) garage doors, (ii) entry gates, and (iii) other improvements and accessories. D. EXCLUSIONS: The following improvements and accessories will be retained by Seller and must be removed prior to delivery of possession: .

3. SALES PRICE: A. Cash portion of Sales Price payable by Buyer at closing .............................. $ B. Sum of all financing described below (excluding any loan funding fee or mortgage insurance premium) ...................................................... $ C. Sales Price (Sum of A and B) ................................................................... $ 4. FINANCING (Not for use with reverse mortgage financing): The portion of Sales Price not payable in cash will be paid as follows: (Check applicable boxes below) q A.THIRD PARTY FINANCING: One or more third party mortgage loans in the total amount of $_______ (excluding any loan funding fee or mortgage insurance premium). (1) Property Approval: If the Property does not satisfy the lenders' underwriting requirements for the loan(s) (including, but not limited to appraisal, insurability and lender required repairs), Buyer may terminate this contract by giving notice to Seller prior to closing and the earnest money will be refunded to Buyer. (2) Credit Approval: (Check one box only) q (a) This contract is subject to Buyer being approved for the financing described in the attached Third Party Financing Addendum for Credit Approval. q (b) This contract is not subject to Buyer being approved for financing and does not involve FHA or VA financing. q B. ASSUMPTION: The assumption of the unpaid principal balance of one or more promissory notes described in the attached TREC Loan Assumption Addendum. q C. SELLER FINANCING: A promissory note from Buyer to Seller of $ , secured by vendor's and deed of trust liens, and containing the terms and conditions described in the attached TREC Seller Financing Addendum. If an owner policy of title insurance is furnished, Buyer shall furnish Seller with a mortgagee policy of title insurance.

Initialed for identification by Buyer and Seller TREC NO. 20-12 Contract Concerning Page 2 of 9 4-28-2014 (Address of Property)

5. EARNEST MONEY: Upon execution of this contract by all parties, Buyer shall deposit $ as earnest money with , as escrow agent, at (address). Buyer shall deposit additional earnest money of $ with escrow agent within days after the effective date of this contract. If Buyer fails to deposit the earnest money as required by this contract, Buyer will be in default. 6. TITLE POLICY AND SURVEY: A. TITLE POLICY: Seller shall furnish to Buyer at q Seller’s q Buyer’s expense an owner policy of title insurance (Title Policy) issued by (Title Company) in the amount of the Sales Price, dated at or after closing, insuring Buyer against loss under the provisions of the Title Policy, subject to the promulgated exclusions (including existing building and zoning ordinances) and the following exceptions: (1) Restrictive covenants common to the platted subdivision in which the Property is located. (2) The standard printed exception for standby fees, taxes and assessments. (3) Liens created as part of the financing described in Paragraph 4. (4) Utility easements created by the dedication deed or plat of the subdivision in which the Property is located. (5) Reservations or exceptions otherwise permitted by this contract or as may be approved by Buyer in writing. (6) The standard printed exception as to marital rights. (7) The standard printed exception as to waters, tidelands, beaches, streams, and related matters. (8) The standard printed exception as to discrepancies, conflicts, shortages in area or boundary lines, encroachments or protrusions, or overlapping improvements: q(i) will not be amended or deleted from the title policy; q(ii) will be amended to read, "shortages in area" at the expense of qBuyer qSeller. B. COMMITMENT: Within 20 days after the Title Company receives a copy of this contract, Seller shall furnish to Buyer a commitment for title insurance (Commitment) and, at Buyer's expense, legible copies of restrictive covenants and documents evidencing exceptions in the Commitment (Exception Documents) other than the standard printed exceptions. Seller authorizes the Title Company to deliver the Commitment and Exception Documents to Buyer at Buyer's address shown in Paragraph 21. If the Commitment and Exception Documents are not delivered to Buyer within the specified time, the time for delivery will be automatically extended up to 15 days or 3 days before the Closing Date, whichever is earlier. If, due to factors beyond Seller’s control, the Commitment and Exception Documents are not delivered within the time required, Buyer may terminate this contract and the earnest money will be refunded to Buyer. C. SURVEY: The survey must be made by a registered professional land surveyor acceptable to the Title Company and Buyer’s lender(s). (Check one box only) q(1) Within days after the effective date of this contract, Seller shall furnish to Buyer and Title Company Seller's existing survey of the Property and a Residential Real Property Affidavit promulgated by the Texas Department of Insurance (T-47 Affidavit). If Seller fails to furnish the existing survey or affidavit within the time prescribed, Buyer shall obtain a new survey at Seller's expense no later than 3 days prior to Closing Date. If the existing survey or affidavit is not acceptable to Title Company or Buyer's lender(s), Buyer shall obtain a new survey at qSeller's qBuyer's expense no later than 3 days prior to Closing Date. q(2) Within days after the effective date of this contract, Buyer shall obtain a new survey at Buyer's expense. Buyer is deemed to receive the survey on the date of actual receipt or the date specified in this paragraph, whichever is earlier. q(3) Within _ days after the effective date of this contract, Seller, at Seller's expense shall furnish a new survey to Buyer. D. OBJECTIONS: Buyer may object in writing to defects, exceptions, or encumbrances to title: disclosed on the survey other than items 6A(1) through (7) above; disclosed in the Commitment other than items 6A(1) through (8) above; or which prohibit the following use or activity: . Buyer must object the earlier of (i) the Closing Date or (ii) _ days after Buyer receives the Commitment, Exception Documents, and the survey. Buyer’s failure to object within the time allowed will constitute a waiver of Buyer’s right to object; except that the requirements in Schedule C of the Commitment are not waived by Buyer. Provided Seller is not obligated to incur any expense, Seller shall cure the timely objections of Buyer or any third party lender

Initialed for identification by Buyer and Seller TREC NO. 20-12 Contract Concerning Page 3 of 9 4-28-2014 (Address of Property)

within 15 days after Seller receives the objections and the Closing Date will be extended as necessary. If objections are not cured within such 15 day period, this contract will terminate and the earnest money will be refunded to Buyer unless Buyer waives the objections. E. TITLE NOTICES: (1) ABSTRACT OR TITLE POLICY: Broker advises Buyer to have an abstract of title covering the Property examined by an attorney of Buyer’s selection, or Buyer should be furnished with or obtain a Title Policy. If a Title Policy is furnished, the Commitment should be promptly reviewed by an attorney of Buyer’s choice due to the time limitations on Buyer’s right to object. (2) MEMBERSHIP IN PROPERTY OWNERS ASSOCIATION(S): The Property qis qis not subject to mandatory membership in a property owners association(s). If the Property is subject to mandatory membership in a property owners association(s), Seller notifies Buyer under §5.012, Texas Property Code, that, as a purchaser of property in the residential community identified in Paragraph 2A in which the Property is located, you are obligated to be a member of the property owners association(s). Restrictive covenants governing the use and occupancy of the Property and all dedicatory instruments governing the establishment, maintenance, or operation of this residential community have been or will be recorded in the Real Property Records of the county in which the Property is located. Copies of the restrictive covenants and dedicatory instruments may be obtained from the county clerk. You are obligated to pay assessments to the property owners association(s). The amount of the assessments is subject to change. Your failure to pay the assessments could result in enforcement of the association’s lien on and the foreclosure of the Property. Section 207.003, Property Code, entitles an owner to receive copies of any document that governs the establishment, maintenance, or operation of a subdivision, including, but not limited to, restrictions, bylaws, rules and regulations, and a resale certificate from a property owners' association. A resale certificate contains information including, but not limited to, statements specifying the amount and frequency of regular assessments and the style and cause number of lawsuits to which the property owners' association is a party, other than lawsuits relating to unpaid ad valorem taxes of an individual member of the association. These documents must be made available to you by the property owners' association or the association's agent on your request. If Buyer is concerned about these matters, the TREC promulgated Addendum for Property Subject to Mandatory Membership in a Property Owners Association(s) should be used. (3) STATUTORY TAX DISTRICTS: If the Property is situated in a utility or other statutorily created district providing water, sewer, drainage, or flood control facilities and services, Chapter 49, Texas Water Code, requires Seller to deliver and Buyer to sign the statutory notice relating to the tax rate, bonded indebtedness, or standby fee of the district prior to final execution of this contract. (4) TIDE WATERS: If the Property abuts the tidally influenced waters of the state, §33.135, Texas Natural Resources Code, requires a notice regarding coastal area property to be included in the contract. An addendum containing the notice promulgated by TREC or required by the parties must be used. (5) ANNEXATION: If the Property is located outside the limits of a municipality, Seller notifies Buyer under §5.011, Texas Property Code, that the Property may now or later be included in the extraterritorial jurisdiction of a municipality and may now or later be subject to annexation by the municipality. Each municipality maintains a map that depicts its boundaries and extraterritorial jurisdiction. To determine if the Property is located within a municipality’s extraterritorial jurisdiction or is likely to be located within a municipality’s extraterritorial jurisdiction, contact all municipalities located in the general proximity of the Property for further information. (6) PROPERTY LOCATED IN A CERTIFICATED SERVICE AREA OF A UTILITY SERVICE PROVIDER: Notice required by §13.257, Water Code: The real property, described in Paragraph 2, that you are about to purchase may be located in a certificated water or sewer service area, which is authorized by law to provide water or sewer service to the properties in the certificated area. If your property is located in a certificated area there may be special costs or charges that you will be required to pay before you can receive water or sewer service. There may be a period required to construct lines or other facilities necessary to provide water or sewer service to your property. You are advised to determine if the property is in a certificated area and contact the utility service provider to determine the cost that you will be required to pay and the period, if any, that is required to provide water or sewer service to your property. The undersigned Buyer hereby acknowledges receipt of the foregoing notice at or before the execution of a binding contract for the purchase of the real property described in Paragraph 2 or at closing of purchase of the real property.

Initialed for identification by Buyer and Seller TREC NO. 20-12 Contract Concerning Page 4 of 9 4-28-2014 (Address of Property)

(7) PUBLIC IMPROVEMENT DISTRICTS: If the Property is in a public improvement district, §5.014, Property Code, requires Seller to notify Buyer as follows: As a purchaser of this parcel of real property you are obligated to pay an assessment to a municipality or county for an improvement project undertaken by a public improvement district under Chapter 372, Local Government Code. The assessment may be due annually or in periodic installments. More information concerning the amount of the assessment and the due dates of that assessment may be obtained from the municipality or county levying the assessment. The amount of the assessments is subject to change. Your failure to pay the assessments could result in a lien on and the foreclosure of your property. (8) TRANSFER FEES: If the Property is subject to a private transfer fee obligation, §5.205, Property Code, requires Seller to notify Buyer as follows: The private transfer fee obligation may be governed by Chapter 5, Subchapter G of the Texas Property Code. (9) PROPANE GAS SYSTEM SERVICE AREA: If the Property is located in a propane gas system service area owned by a distribution system retailer, Seller must give Buyer written notice as required by §141.010, Texas Utilities Code. An addendum containing the notice approved by TREC or required by the parties should be used. 7. PROPERTY CONDITION: A. ACCESS, INSPECTIONS AND UTILITIES: Seller shall permit Buyer and Buyer’s agents access to the Property at reasonable times. Buyer may have the Property inspected by inspectors selected by Buyer and licensed by TREC or otherwise permitted by law to make inspections. Seller at Seller's expense shall immediately cause existing utilities to be turned on and shall keep the utilities on during the time this contract is in effect. B. SELLER'S DISCLOSURE NOTICE PURSUANT TO §5.008, TEXAS PROPERTY CODE (Notice): (Check one box only) q (1) Buyer has received the Notice. q (2) Buyer has not received the Notice. Within days after the effective date of this contract, Seller shall deliver the Notice to Buyer. If Buyer does not receive the Notice, Buyer may terminate this contract at any time prior to the closing and the earnest money will be refunded to Buyer. If Seller delivers the Notice, Buyer may terminate this contract for any reason within 7 days after Buyer receives the Notice or prior to the closing, whichever first occurs, and the earnest money will be refunded to Buyer. q (3)The Seller is not required to furnish the notice under the Texas Property Code. C. SELLER’S DISCLOSURE OF LEAD-BASED PAINT AND LEAD-BASED PAINT HAZARDS is required by Federal law for a residential dwelling constructed prior to 1978. D. ACCEPTANCE OF PROPERTY CONDITION: “As Is” means the present condition of the Property with any and all defects and without warranty except for the warranties of title and the warranties in this contract. Buyer’s agreement to accept the Property As Is under Paragraph 7D(1) or (2) does not preclude Buyer from inspecting the Property under Paragraph 7A, from negotiating repairs or treatments in a subsequent amendment, or from terminating this contract during the Option Period, if any. (Check one box only) q (1) Buyer accepts the Property As Is. q (2) Buyer accepts the Property As Is provided Seller, at Seller’s expense, shall complete the following specific repairs and treatments: . (Do not insert general phrases, such as “subject to inspections” that do not identify specific repairs and treatments.) E. LENDER REQUIRED REPAIRS AND TREATMENTS: Unless otherwise agreed in writing, neither party is obligated to pay for lender required repairs, which includes treatment for wood destroying insects. If the parties do not agree to pay for the lender required repairs or treatments, this contract will terminate and the earnest money will be refunded to Buyer. If the cost of lender required repairs and treatments exceeds 5% of the Sales Price, Buyer may terminate this contract and the earnest money will be refunded to Buyer. F. COMPLETION OF REPAIRS AND TREATMENTS: Unless otherwise agreed in writing: (i) Seller shall complete all agreed repairs and treatments prior to the Closing Date; and (ii) all required permits must be obtained, and repairs and treatments must be performed by persons who are licensed to provide such repairs or treatments or, if no license is required by law, are commercially engaged in the trade of providing such repairs or treatments. At Buyer’s election, any transferable warranties received by Seller with respect to the repairs and treatments will be transferred to Buyer at Buyer’s expense. If Seller fails to complete any agreed repairs and treatments prior to the Closing Date, Buyer may exercise remedies under Paragraph 15 or extend the Closing Date up to 5 days if necessary for Seller to complete the repairs and treatments. G. ENVIRONMENTAL MATTERS: Buyer is advised that the presence of wetlands, toxic substances, including asbestos and wastes or other environmental hazards, or the presence of a threatened or endangered species or its habitat may affect Buyer’s intended use of the

Initialed for identification by Buyer and Seller TREC NO. 20-12 Contract Concerning Page 5 of 9 4-28-2014 (Address of Property)

Property. If Buyer is concerned about these matters, an addendum promulgated by TREC or required by the parties should be used. H. RESIDENTIAL SERVICE CONTRACTS: Buyer may purchase a residential service contract from a residential service company licensed by TREC. If Buyer purchases a residential service contract, Seller shall reimburse Buyer at closing for the cost of the residential service contract in an amount not exceeding $ . Buyer should review any residential service contract for the scope of coverage, exclusions and limitations. The purchase of a residential service contract is optional. Similar coverage may be purchased from various companies authorized to do business in Texas. 8. BROKERS' FEES: All obligations of the parties for payment of brokers’ fees are contained in separate written agreements. 9. CLOSING: A. The closing of the sale will be on or before , 20 , or within 7 days after objections made under Paragraph 6D have been cured or waived, whichever date is later (Closing Date). If either party fails to close the sale by the Closing Date, the non- defaulting party may exercise the remedies contained in Paragraph 15. B. At closing: (1) Seller shall execute and deliver a general warranty deed conveying title to the Property to Buyer and showing no additional exceptions to those permitted in Paragraph 6 and furnish tax statements or certificates showing no delinquent taxes on the Property. (2) Buyer shall pay the Sales Price in good funds acceptable to the escrow agent. (3) Seller and Buyer shall execute and deliver any notices, statements, certificates, affidavits, releases, loan documents and other documents reasonably required for the closing of the sale and the issuance of the Title Policy. (4) There will be no liens, assessments, or security interests against the Property which will not be satisfied out of the sales proceeds unless securing the payment of any loans assumed by Buyer and assumed loans will not be in default. (5)If the Property is subject to a residential lease, Seller shall transfer security deposits (as defined under §92.102, Property Code), if any, to Buyer. In such an event, Buyer shall deliver to the tenant a signed statement acknowledging that the Buyer has received the security deposit and is responsible for the return of the security deposit, and specifying the exact dollar amount of the security deposit. 10.POSSESSION: A Buyer’s Possession: Seller shall deliver to Buyer possession of the Property in its present or required condition, ordinary wear and tear excepted: qupon closing and funding qaccording to a temporary residential lease form promulgated by TREC or other written lease required by the parties. Any possession by Buyer prior to closing or by Seller after closing which is not authorized by a written lease will establish a tenancy at sufferance relationship between the parties. Consult your insurance agent prior to change of ownership and possession because insurance coverage may be limited or terminated. The absence of a written lease or appropriate insurance coverage may expose the parties to economic loss. B. Leases: (1)After the Effective Date, Seller may not execute any lease (including but not limited to mineral leases) or convey any interest in the Property without Buyer’s written consent. (2) If the Property is subject to any lease to which Seller is a party, Seller shall deliver to Buyer copies of the lease(s) and any move-in condition form signed by the tenant within 7 days after the Effective Date of the contract. 11. SPECIAL PROVISIONS: (Insert only factual statements and business details applicable to the sale. TREC rules prohibit licensees from adding factual statements or business details for which a contract addendum, lease or other form has been promulgated by TREC for mandatory use.)

12. SETTLEMENT AND OTHER EXPENSES: A. The following expenses must be paid at or prior to closing: (1) Expenses payable by Seller (Seller's Expenses): (a) Releases of existing liens, including prepayment penalties and recording fees; release of Seller’s loan liability; tax statements or certificates; preparation of deed; one-half of escrow fee; and other expenses payable by Seller under this contract. (b) Seller shall also pay an amount not to exceed $ to be applied in the

Initialed for identification by Buyer and Seller TREC NO. 20-12 Contract Concerning Page 6 of 9 4-28-2014 (Address of Property)

following order: Buyer’s Expenses which Buyer is prohibited from paying by FHA, VA, Texas Veterans Land Board or other governmental loan programs, and then to other Buyer’s Expenses as allowed by the lender. (2) Expenses payable by Buyer (Buyer's Expenses): Appraisal fees; loan application fees; adjusted origination charges; credit reports; preparation of loan documents; interest on the notes from date of disbursement to one month prior to dates of first monthly payments; recording fees; copies of easements and restrictions; loan title policy with endorsements required by lender; loan-related inspection fees; photos; amortization schedules; one-half of escrow fee; all prepaid items, including required premiums for flood and hazard insurance, reserve deposits for insurance, ad valorem taxes and special governmental assessments; final compliance inspection; courier fee; repair inspection; underwriting fee; wire transfer fee; expenses incident to any loan; Private Mortgage Insurance Premium (PMI), VA Loan Funding Fee, or FHA Mortgage Insurance Premium (MIP) as required by the lender; and other expenses payable by Buyer under this contract. B. If any expense exceeds an amount expressly stated in this contract for such expense to be paid by a party, that party may terminate this contract unless the other party agrees to pay such excess. Buyer may not pay charges and fees expressly prohibited by FHA, VA, Texas Veterans Land Board or other governmental loan program regulations. 13. PRORATIONS: Taxes for the current year, interest, maintenance fees, assessments, dues and rents will be prorated through the Closing Date. The tax proration may be calculated taking into consideration any change in exemptions that will affect the current year's taxes. If taxes for the current year vary from the amount prorated at closing, the parties shall adjust the prorations when tax statements for the current year are available. If taxes are not paid at or prior to closing, Buyer shall pay taxes for the current year. 14. CASUALTY LOSS: If any part of the Property is damaged or destroyed by fire or other casualty after the effective date of this contract, Seller shall restore the Property to its previous condition as soon as reasonably possible, but in any event by the Closing Date. If Seller fails to do so due to factors beyond Seller’s control, Buyer may (a) terminate this contract and the earnest money will be refunded to Buyer (b) extend the time for performance up to 15 days and the Closing Date will be extended as necessary or (c) accept the Property in its damaged condition with an assignment of insurance proceeds and receive credit from Seller at closing in the amount of the deductible under the insurance policy. Seller’s obligations under this paragraph are independent of any other obligations of Seller under this contract. 15. DEFAULT: If Buyer fails to comply with this contract, Buyer will be in default, and Seller may (a) enforce specific performance, seek such other relief as may be provided by law, or both, or (b) terminate this contract and receive the earnest money as liquidated damages, thereby releasing both parties from this contract. If Seller fails to comply with this contract, Seller will be in default and Buyer may (a) enforce specific performance, seek such other relief as may be provided by law, or both, or (b) terminate this contract and receive the earnest money, thereby releasing both parties from this contract. 16. MEDIATION: It is the policy of the State of Texas to encourage resolution of disputes through alternative dispute resolution procedures such as mediation. Any dispute between Seller and Buyer related to this contract which is not resolved through informal discussion will be submitted to a mutually acceptable mediation service or provider. The parties to the mediation shall bear the mediation costs equally. This paragraph does not preclude a party from seeking equitable relief from a court of competent jurisdiction. 17. ATTORNEY'S FEES: A Buyer, Seller, Listing Broker, Other Broker, or escrow agent who prevails in any legal proceeding related to this contract is entitled to recover reasonable attorney’s fees and all costs of such proceeding. 18. ESCROW: A. ESCROW: The escrow agent is not (i) a party to this contract and does not have liability for the performance or nonperformance of any party to this contract, (ii) liable for interest on the earnest money and (iii) liable for the loss of any earnest money caused by the failure of any financial institution in which the earnest money has been deposited unless the financial institution is acting as escrow agent. B. EXPENSES: At closing, the earnest money must be applied first to any cash down payment, then to Buyer's Expenses and any excess refunded to Buyer. If no closing occurs, escrow agent may: (i) require a written release of liability of the escrow agent from all parties, (ii) require payment of unpaid expenses incurred on behalf of a party, and (iii) only deduct from the earnest money the amount of unpaid expenses incurred on behalf of the party receiving the earnest money. C. DEMAND: Upon termination of this contract, either party or the escrow agent may send a release of earnest money to each party and the parties shall execute counterparts of

Initialed for identification by Buyer and Seller TREC NO. 20-12 Contract Concerning Page 7 of 9 4-28-2014 (Address of Property)

the release and deliver same to the escrow agent. If either party fails to execute the release, either party may make a written demand to the escrow agent for the earnest money. If only one party makes written demand for the earnest money, escrow agent shall promptly provide a copy of the demand to the other party. If escrow agent does not receive written objection to the demand from the other party within 15 days, escrow agent may disburse the earnest money to the party making demand reduced by the amount of unpaid expenses incurred on behalf of the party receiving the earnest money and escrow agent may pay the same to the creditors. If escrow agent complies with the provisions of this paragraph, each party hereby releases escrow agent from all adverse claims related to the disbursal of the earnest money. D. DAMAGES: Any party who wrongfully fails or refuses to sign a release acceptable to the escrow agent within 7 days of receipt of the request will be liable to the other party for liquidated damages in an amount equal to the sum of: (i) three times the amount of the earnest money; (ii) the earnest money; (iii) reasonable attorney's fees; and (iv) all costs of suit. E. NOTICES: Escrow agent's notices will be effective when sent in compliance with Paragraph 21. Notice of objection to the demand will be deemed effective upon receipt by escrow agent. 19. REPRESENTATIONS: All covenants, representations and warranties in this contract survive closing. If any representation of Seller in this contract is untrue on the Closing Date, Seller will be in default. Unless expressly prohibited by written agreement, Seller may continue to show the Property and receive, negotiate and accept back up offers. 20. FEDERAL TAX REQUIREMENTS: If Seller is a "foreign person,” as defined by applicable law, or if Seller fails to deliver an affidavit to Buyer that Seller is not a "foreign person,” then Buyer shall withhold from the sales proceeds an amount sufficient to comply with applicable tax law and deliver the same to the Internal Revenue Service together with appropriate tax forms. Internal Revenue Service regulations require filing written reports if currency in excess of specified amounts is received in the transaction. 21. NOTICES: All notices from one party to the other must be in writing and are effective when mailed to, hand-delivered at, or transmitted by facsimile or electronic transmission as follows: To Buyer at: To Seller at:

Telephone: ( ) Telephone: ( ) Facsimile: ( ) Facsimile: ( ) E-mail: E-mail: 22. AGREEMENT OF PARTIES: This contract contains the entire agreement of the parties and cannot be changed except by their written agreement. Addenda which are a part of this contract are (Check all applicable boxes): q Third Party Financing Addendum for Credit q Environmental Assessment, Threatened or Approval Endangered Species and Wetlands Addendum q Seller Financing Addendum q Seller’s Temporary Residential Lease q Addendum for Property Subject to Mandatory Membership in a Property q Short Sale Addendum Owners Association q Addendum for Property Located Seaward q Buyer’s Temporary Residential Lease of the Gulf Intracoastal Waterway q Loan Assumption Addendum q Addendum for Seller's Disclosure of Information on Lead-based Paint and Lead- q Addendum for Sale of Other Property by based Paint Hazards as Required by Buyer Federal Law q Addendum for Reservation of Oil, Gas q Addendum for Property in a Propane Gas and Other Minerals System Service Area q Addendum for "Back-Up" Contract q Other (list): q Addendum for Coastal Area Property

Initialed for identification by Buyer and Seller TREC NO. 20-12 Contract Concerning Page 8 of 9 4-28-2014 (Address of Property)

23. TERMINATION OPTION: For nominal consideration, the receipt of which is hereby acknowledged by Seller, and Buyer's agreement to pay Seller $ (Option Fee) within 3 days after the effective date of this contract, Seller grants Buyer the unrestricted right to terminate this contract by giving notice of termination to Seller within days after the effective date of this contract (Option Period). If no dollar amount is stated as the Option Fee or if Buyer fails to pay the Option Fee to Seller within the time prescribed, this paragraph will not be a part of this contract and Buyer shall not have the unrestricted right to terminate this contract. If Buyer gives notice of termination within the time prescribed, the Option Fee will not be refunded; however, any earnest money will be refunded to Buyer. The Option Fee qwill qwill not be credited to the Sales Price at closing. Time is of the essence for this paragraph and strict compliance with the time for performance is required. 24. CONSULT AN ATTORNEY BEFORE SIGNING: TREC rules prohibit real estate licensees from giving legal advice. READ THIS CONTRACT CAREFULLY.

Buyer's Seller's Attorney is: Attorney is:

Telephone: ( ) Telephone: ( )

Facsimile: ( ) Facsimile: ( )

E-mail: E-mail:

EXECUTED the day of , 20 (EFFECTIVE DATE). (BROKER: FILL IN THE DATE OF FINAL ACCEPTANCE.)

Buyer Seller

Buyer Seller

The form of this contract has been approved by the Texas Real Estate Commission. TREC forms are intended for use only by tr ained real estate licensees. No representation is made as to the legal validity or adequacy of any provision in any specific transactions. It is not intended for complex transactions. Texas Real Estate Commission, P.O. Box 12188, Austin, TX 78711-2188, (512) 936-3000 (http://www.trec.texas.gov) TREC NO. 20-12. This form replaces TREC NO. 20-11.

Initialed for identification by Buyer and Seller TREC NO. 20-12 Contract Concerning Page 9 of 9 4-28-2014 (Address of Property)

BROKER INFORMATION (Print name(s) only. Do not sign)

Other Broker Firm License No. Listing Broker Firm License No.

represents q Buyer only as Buyer’s agent represents q Seller and Buyer as an intermediary q Seller as Listing Broker’s subagent q Seller only as Seller’s agent

Name of Associate’s Licensed Supervisor Telephone Name of Associate’s Licensed Supervisor Telephone

Associate’s Name Telephone Listing Associate’s Name Telephone

Other Broker's Address Facsimile Listing Broker’s Office Address Facsimile

City State Zip City State Zip

Associate’s Email Address Listing Associate’s Email Address

Selling Associate’s Name Telephone

Name of Selling Associate’s Licensed Supervisor Telephone

Selling Associate’s Office Address Facsimile

City State Zip

Selling Associate’s Email Address

Listing Broker has agreed to pay Other Broker of the total sales price when the Listing Broker’s fee is received. Escrow agent is authorized and directed to pay other Broker from Listing Broker’s fee at closing.

OPTION FEE RECEIPT

Receipt of $ (Option Fee) in the form of is acknowledged.

Seller or Listing Broker Date

CONTRACT AND EARNEST MONEY RECEIPT

Receipt of qContract and q$ Earnest Money in the form of is acknowledged.

Escrow Agent: Date:

By: Email Address Telephone ( ) Address

Facsimile: ( ) City State Zip

Initialed for identification by Buyer and Seller TREC NO. 20-12