ONE WAY *NOT* TO CORRECT THE RECORD ON APPEAL

Burleson v. Collin County Community College District
Dallas Court of Appeals, No. 05-15-01361-CV (February 8, 2017)
Justices Bridges, Lang-Miers, and Whitehill (Opinion, linked here)

Ken Carroll

Burleson, Mark, and Bennight brought “whistleblower” claims against their employer, the Collin County Community College District. The trial court granted CCCD’s plea to the jurisdiction, finding the plaintiffs had not met the state Whistleblower Act’s jurisdictional prerequisites. The Dallas Court of Appeals disagreed, however, and reversed, sending the case back to the trial court. In the process, the appeals court addressed an issue often faced by appellate practitioners—correcting the record on appeal—and used the circumstances here to illustrate one method that won’t work.

At the hearing on its plea to the jurisdiction, CCCD discovered it had not filed certain documents it had intended to file with its plea. During the hearing, CCCD proffered those documents, labeled collectively as “Exhibit E,” as a corrected version of the materials it intended to file with the plea. The trial court accepted and “admitted” the exhibit as an “addendum.” But Exhibit E was not included in either the clerk’s record or the reporter’s record on appeal. When CCCD discovered the omission, after the officers had filed their notice of appeal and proceedings were underway in the appellate court, CCCD re-filed the Exhibit E materials with the trial court as an “Addendum to Defendant’s Plea to the Jurisdiction.” It then had that Addendum filed as a supplemental clerk’s record in the appeals court, invoking TRAP 34.6(e).

Not so fast, said the Court of Appeals. First, Rule 34.6(e) prescribes the procedure for addressing the accuracy or completeness of the reporter’s record. Here, CCCD attempted to cure the supposed defect by supplementing the clerk’s record. Second, in the absence of agreement—the plaintiffs objected here—Rule 34.6(e) requires that the trial court hold a hearing and determine whether the record is defective or deficient and, if so, approve the proposed correction. (A somewhat similar process is prescribed in Rule 34.5(d) & (e) for items lost from the clerk’s record.) Because CCCD did not follow that procedure, but instead unilaterally filed after-the-fact what it claimed were the omitted materials, the appeals court rejected CCCD’s proposed fix. The Court observed that, without the prescribed trial-court hearing and approval, there was “nothing in the record to establish that these materials are the same materials tendered to and considered by the trial court.” The supplemental materials, therefore, were excluded from the record on appeal.

As a balm to the attorneys involved, the Court dropped a footnote to say it would’ve reached the same result on appeal even if it had considered the disputed materials. But for the rest of us, the Court’s opinion serves as an admonition always to check the rules and follow them. As the Court cautioned, “liberal construction … does not mean that we disregard the rules in their entirety.”