by Ryan Philip Pitts, an associate in the appellate practice group of Haynes Boone, LLP’s Houston office.

The record provides the raw material of an appeal; it is the closed universe in which appellate practitioners work. The Texas courts of appeal, after all, do not consider matters outside the record on appeal.[1]See, e.g., O’Keefe v. Phelan, No. 14-00-01194-CV, 2001 WL 395307, at *2 (Tex. App.—Houston [14th Dist.] Apr. 19, 2001, no pet.) (“It is elementary, with limited exceptions that are not material … Continue reading That’s old hat. The record is important, critically so. And, so, we are all well-acquainted with the appellate record’s preparation. The clerk and reporter—by rule and request—assemble the papers and transcripts, combine them, file them, number them, and so on.[2]See, e.g., Tex. R. App. P. 35.1 (time for filing), 34.6 (reporter’s record request), 35.3 (responsibility for filing). Their contents turn on rule and the parties’ designations.[3]See Tex. R. App. P. 34.2; Tex. R. App. P. 34.5(a) & 34.6(a), (c). You know all that. But what about supplementing the record, say, with relevant but missing materials, after an appeal has progressed from its early administrative stages and into the merits? Can a party do that in Texas appellate courts?

Yes, indeed, one can. But supplements face more searching scrutiny the later they come in an appeal, especially after submission and decision. This article explores how and when an appellate practitioner may supplement the record. It also touches on the proper contents of a supplement but without trudging deeply into that briar patch. (Because that’s its own article.) The very short answers are below:

One more initial thought. While record supplements may seem dull and procedural, they are not. Supplements implicate judicial philosophies about the power and place of appellate courts in our legal system. As Justice Goodman said in dissent last year (2021):

I would order supplementation of the record to include the docket control order and decide [the appellant’s] issues on the merits . . . . As appellate judges, we should never put ourselves in the position of deciding an appeal based on assumptions that we know to be untrue. But that is exactly what the majority does.[4]Matter of Marriage of Comstock, 639 S.W.3d 118, 149 (Tex. App.—Houston [1st Dist.] 2021, no pet.) (Goodman, J., dissenting) (emphasis added).

I. The basic mechanics of supplements

The rules that govern record supplements for appeals—Texas Rules of Appellate Procedure 34.5(c) and 34.6(d)—are mercifully simple. They can be reduced to a sentence. Any party, the trial court, or the appellate court may “by letter direct” the trial court clerk or reporter to “prepare, certify, and file” a desired record supplement.[5]Tex. R. App. P. 34.5(c)(1) & 34.6(d). That is all. No motion for leave is required.[6]Id.; see Roventini v. Ocular Sci., Inc., 111 S.W.3d 719, 725 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (“Nothing in the rule requires that parties seek permission from any court before the … Continue reading Nor are there stated time limits. To the contrary, “[a]n appellate court must not refuse to file” a supplemental record because of “a failure to timely” request it.[7]Tex. R. App. P. 34.5(b)(4); 34.6(b)(3). And lastly, any supplement “will be part of the appellate record.”[8]Tex. R. App. P. 34.5(c)(1) & 34.6(d) (emphasis added). No discretion plays a part (arguably). While permissive, these rules must be followed. Materials outside the appellate record cannot simply be attached to briefing as an exhibit or appendix.[9]See, e.g., McPherson v. Hollyer, No. 01-09-00619-CV, 2011 WL 1632163, at *3 (Tex. App.—Houston [1st Dist.] Apr. 28, 2011, no pet.); Sowell v. The Kroger Co., 263 S.W.3d 36, 38 (Tex. App.—Houston … Continue reading

The original-proceeding rule is simpler still. Any party “may file additional materials for inclusion in the record.”[10]Tex. R. App. P. 52.7(b). A court will assume a complete record if the parties have “neither stated that the record is incomplete nor supplemented the record.”[11]In re Montelongo, 586 S.W.3d 513, 518 n.2 (Tex. App.—Houston [14th Dist.] 2019, orig. proceeding). In practice, however, the appellate courts have permitted original-proceeding supplements under the same standards as Rules 34.5(c) and 34.6(d).[12]See In re Morehead, No. 06-21-00025-CV, 2021 WL 1652064, at *3 (Tex. App.—Texarkana Apr. 28, 2021, orig. proceeding); In re Cooper, No. 06-10-00057-CV, 2010 WL 3136958, at *3 (Tex. App.—Texarkana … Continue reading

And that covers the express supplement rules. Unsurprisingly, the appellate courts have characterized these rules as “permissive,”[13]E.g., Cervantes, 300 S.W.3d at 871. “lenient,”[14]Aluminum Chem. (Bolivia), Inc. v. Bechtel Corp., 28 S.W.3d 49, 50 (Tex. App.—Texarkana 2000, no pet.); Roberts v. Roberts, 999 S.W.2d 424, 438 (Tex. App.—El Paso 1999, no pet.). and calibrated to deciding appellate points on the “merits” rather than on a “technicality.”[15]Silk v. Terrill, 898 S.W.2d 764, 766 (Tex. 1995). The supplement rules are “liberally” construed in favor of a complete record.[16]See El Paso Cnty. v. Ontiveros, 36 S.W.3d 711, 714 (Tex.—El Paso 2001, no pet.). After all, the Texas Supreme Court instructs that “the appellate rules are designed to further the resolution of appeals on the merits.”[17]Bennett v. Cochran, 96 S.W.3d 227, 230 (Tex. 2002); see also Guest v. Dixon, 195 S.W.3d 687, 688 (Tex. 2006).

But do not be fooled.

The Texas appellate courts are very far from having surrendered their control over the record to the meddlesome supplement, however permissively the rulebook reads. While they (again, arguably)[18]I say arguably because despite the supplement rules, an appellate court retains the residual authority “to suspend a rule’s operation in a particular case and order a different procedure” to … Continue reading cannot prevent a supplement from becoming part of the record, they can and will close their eyes to it if improper or untimely. None of the rules should lull the practitioner into a sense of supplement-security. It is to this important judicial gloss this article now turns.

II. Rule 1: Scope

As promised, this article briefly notes the permissible scope of a supplement before turning to the main event: timing. Supplements may contain “filings” that the trial court had “before” it when making the appealed decisions.[19]Lance v. Robinson, 543 S.W.3d 723, 733 (Tex. 2018); FedEx Corp. v. Contreras, No. 04-19-00757-CV, 2020 WL 4808721, at *9 (Tex. App.—San Antonio Aug. 19, 2020, no pet.) (mem. op.); Russo v. Adame, … Continue reading And any trial exhibits must have been tendered.[20]Matter of Marriage of Harrison, 557 S.W.3d 99, 106 n.2 (Tex. App.—Houston [14th Dist.] 2018, pet. denied). The supplement rules do not offer parties license to craft a new (perhaps more favorable) record that did not previously exist below.[21]Baylor Scott & White, Hillcrest Med. Ctr. v. Weems, 575 S.W.3d 357, 366 (Tex. 2019) (“[W]hile the record may be supplemented under the appellate rules if something has been omitted, the … Continue reading While federal courts have recognized a narrow, equitable exception to this rule to ensure justice is done in special circumstances, the Texas courts do not appear to recognize a corollary rule.[22]See Gibson v. Blackburn, 744 F.2d 403, 405 n.3 (5th Cir. 1984) (“Although a court of appeals will not ordinarily enlarge the record to include material not before the district court, it is clear … Continue reading This article does not wade further into that interesting issue.

III. Rule 2: Timing

To understand the caselaw on the time of record supplements, a brief history of the Texas record-supplement rules helps. Rules 34.5 and 34.6 came into existence as part of the 1997 revision of the Texas Rules of Appellate Procedure.[23]See Approval of Revisions to the Texas Rules of Appellate Procedure, Misc. Docket No. 97-0956 (Tex. Mar. 20, 1997). The prior supplement rule was different. It was Rule 55(b). That rule allowed record supplements by leave and at the court’s discretion.[24]Worthy v. Collagen Corp., 967 S.W.2d 360, 366 (Tex. 1998) (“Former Rule 55(b) of the Texas Rules of Appellate Procedure required an appellate court to grant a party leave to supplement the record … Continue reading It worked in conjunction with another old rule, Rule 50(d), which placed the express burden of a complete record on the appellant.[25]See, e.g., Guilder v. State, 794 S.W.2d 765, 771–72 (Tex. App.—Dallas 1990, no pet.); K & S Interests, Inc. v. Tex. Am. Bank/Dallas, 749 S.W.2d 887 (Tex. App.—Dallas 1988, writ denied). Predictably, the courts would deny leave to file a supplement if its contents were improper or irrelevant, or if the supplement was untimely. And the consequences of any record failures fell squarely on the appellant.

Despite the apparent control afforded to appellate courts under Rule 55(b), the Texas Supreme Court drew boundaries in a trio of decisions in the 1990s. The first was Crown Life Insurance Co. v. Estate of Gonzalez (1991).[26]820 S.W.2d 121, 122 (Tex. 1991). In a shot across the bow, the Court held a denial of a pre-submission supplement offended Rule 55(b)’s very “spirit.”[27]Id. It summarized: “[W]hile leave to supplement post-submission is often denied, seldom is a party who otherwise timely files a record denied pre-submission leave to supplement.”[28]Id.; accord Nuby v. Allied Bankers Life Ins. Co., 797 S.W.2d 396, 398 (Tex. App.—Austin 1990, no writ) (“[A]lthough the rules do give the court discretion to allow supplementation of the record … Continue reading A couple years later, in Silk v. Terrill (1995), the Court reversed an intermediate appellate court’s refusal to allow leave to file a supplement after oral argument but before a decision issued.[29]898 S.W.2d 764, 766 (Tex. 1995) (per curiam). It instructed: “Judicial economy is not served when a case, ripe for decision, is decided on a procedural technicality of this nature. In the interests of justice and fair play, cases should be decided on the merits when deficiencies of this nature can be easily corrected.”[30]Id. Finally, in Worthy v. Collagen Corp. (1998), the Court agreed with Silk’s rule but reached the opposite result.[31]967 S.W.2d 360, 366 (Tex. 1998). The supplement was properly refused after the party had “failed to supplement even after requesting and being granted leave to do so.”[32]Id. 

In all three opinions, the Texas Supreme Court stressed that the lower courts should apply the supplement rules to facilitate an appeal’s resolution on merit, not technicality.

A couple years after Silk, came the 1997 revisions that loosened the record supplement rules—eliminating the discretion to reject a supplement’s filing.[33]See Roventini, 111 S.W.3d at 725 (“Pursuant to the plain language of this rule, items included in a supplemental clerk’s record become part of the appellate record when a party or a court directs … Continue reading The revisions also removed Rule 50(d), “no longer plac[ing] the burden on any party to designate items to be included in the appellate record.”[34]Est. of Nunu, 542 S.W.3d 67, 74 (Tex. App.—Houston [14th Dist.] 2017, pet. denied) (noting the marked departure from old Rule 50(d). In practice however, having a complete record should might still … Continue reading (Some courts seem to disagree about the burden, though.)[35]E.g., Zoya Enters., Inc. v. Sampri Invs., L.L.C., No. 14-04-01158-CV, 2006 WL 1389582, at *3–4 (Tex. App.—Houston [14th Dist.] May 23, 2006, no pet.) (mem. op.) (“The burden was on Zoya . . . … Continue reading And so these rules, at least on paper, looked to erode the Texas appellate courts’ control over supplements. Not so in practice: The Texas courts of appeal hoisted no flag of surrender. Instead, they recharacterized their discretion to what they will consider in the record. As one court explained: “[d]espite . . . the permission that rule 34.5(c) grants parties to supplement the appellate record with items that they deem relevant and omitted, nothing in the rule compels the appellate courts to consider those items in reaching its decision.”[36]Roventini, 111 S.W.3d at 726. This discretion-to-consider now enjoys unanimity or near to it.[37]See, e.g., Interest of A.S.M., No. 08-19-00212-CV, 2021 WL 3260625, at *4 n.7 (Tex. App.—El Paso July 30, 2021, no pet.) (“[B]ecause even if the parties have great latitude to include … Continue reading

The pre- and post-submission distinction, as articulated in Crown Life, has remained critical as the courts have wielded that discretion-to-consider.[38]See, e.g., Wash. Nat’l Ins. Co. v. Walline, No. 07-98-0266-CV, 1998 WL 726079, at *1 n.1 (Tex. App.—Amarillo Oct. 19, 1998, no pet.) (“Under the old Rules of Appellate Procedure, a request to … Continue reading The First Court distilled the rule: “[A]ny party can seek supplementation of the clerk’s record and, at least until the time the case is set for submission, the supplement will be accepted.”[39]McPherson v. Hollyer, No. 01-09-00619-CV, 2011 WL 1632163, at *3 (Tex. App.—Houston [1st Dist.] Apr. 28, 2011, no pet.); accord Turull v. Ferguson, No. 01-09-00067-CV, 2010 WL 2991087, at *2 (Tex. … Continue reading (There have been exceptions; at least one court has also refused to consider a supplement once briefing had completed.)[40]See Ortegon v. Benavides, No. 04-05-00768-CV, 2008 WL 577175, at *3 & *6 n.2 (Tex. App.—San Antonio Mar. 5, 2008, pet. denied) (mem. op.) (“The supplemental reporter’s record containing … Continue reading For post-submission supplements, many Texas courts have announced they will not consider record additions unless “unusual circumstances” are shown, which matches the pre-1997 rule.[41]E.g., Jackson v. S.P. Leasing Corp., 774 S.W.2d 673, 677 (Tex. App.—Texarkana 1989, writ denied) (“While we have wide discretion to permit supplementation of the transcript so as to include … Continue reading Other courts have omitted to use this “unusual circumstances” standard for the modern rules.[42]Jones v. State, No. 03-05-00512-CV, 2007 WL 1372671, at *1 n.2 (Tex. App.—Austin May 11, 2007, no pet.) (mem. op.) (“Although the supplemental records were filed after this Court’s opinion … Continue reading The Texas Supreme Court has not issued an in-depth opinion on record-supplement rules since its 1990s trifecta, which culminated in the rule revisions.

So where does the law stand? Much the same as it was pre-1997, except there is no express leave or discretion component to a supplement’s filing. A Texas appellate court is likely to consider a pre-submission supplement; a post-submission supplement will often not be considered absent “unusual circumstances.” Post-1997, the Texas courts still—a lot more often than not—decline to consider the contents of post-submission supplements, including (and perhaps especially) on rehearing.[43]See, e.g., S.E.A. Leasing, Inc. v. Steele, 264 S.W.3d 71, 81 (Tex. App.—Houston [1st Dist.] Aug. 17, 2007, no pet.) (Taft, J., concurring on denial of en banc reconsideration); Tex. First Nat’l … Continue reading

IV. The considerations that animate these timing decisions

While appeals should be decided on their merits, not technicalities, a late supplement may slow the appellate process, require additional briefing to give the parties their say, or require a court to rework or rethink issues. Supplements threaten delays and increased costs while also, if freely allowed, potentially open a door for gamesmanship. So, Texas courts have tried to strike a case-by-case balance, considering each situation on its unique facts. In practice, the appellate courts have looked for fault or neglect. If a court senses a supplement’s late timing was within a party’s control, it is less likely to consider the supplement, and vice versa.[44]E.g., Nolan v. Klement, No. 14-00-00213-CV, 2001 WL 835561, at *2 n.2 (Tex. App.—Houston [14th Dist.] July 26, 2001, no pet.) (“[A]ppellant filed a post-submission motion to supplement the trial … Continue reading When appropriate, the appellate courts have tempered efficiency and blame considerations with the gravity of the rights at stake.[45]See In re K.C.B., 251 S.W.3d 514, 516–17 (Tex. 2008) (per curiam) (“Given the constitutional dimensions” of the parent-child relationship, “justice is not served when a case like this, ripe … Continue reading

Consider an example of a court finding fault. In Zoya Enterprises, Inc. v. Sampri Investments, LLC, the appellant supplemented the appellate record with summary judgment responses three weeks after the appeal’s submission date but before the opinion had issued.[46]Zoya, 2006 WL 1389582, at *2–4. The court refused to consider them because of the party’s “inaction and indifference” over eleven months, and because the opposing party would need “an opportunity to respond.”[47]Id.    That would “increase [its] costs and further delay proceedings.”[48]Id.    The court further noted: “We had considered the case as it appeared on the submission day and prepared an opinion, only to be required to spend additional time and effort to address the filing of the post-submission supplemental record.”[49]Id.     

The converse occurred in Lewis v. Nolan.[50]No. 01-04-00865-CV, 2007 WL 926659, at *2 (Tex. App.—Houston [1st Dist.] Mar. 29, 2007, pet. denied). There, the appellant had requested and paid for a supplement to the record soon after his appellant’s brief was filed, but the clerk’s office sent the supplement to the wrong court of appeals (the Fourteenth instead of the First).[51]Id.      Two years later, the court considered the supplement because “the requested supplemental record was inadvertently sent to the wrong court through no fault of [the appellant’s].”[52]Id.       

Lastly, observe an issue’s gravity affecting the record-supplement calculus. In In re K.C.B., a termination of parental rights was affirmed because the record on appeal omitted a required document.[53]251 S.W.3d at 516–17. On rehearing, the appellant moved to supplement, but the appellate court refused.[54]Id.        The Texas Supreme Court reversed, holding that because of “the constitutional dimensions of the fundamental liberty interest of natural parents in the care, custody, and management of their” child, “justice is not served when a case like this, ripe for determination on the merits, is decided on a procedural technicality that can easily be corrected.”[55]Id. at 517 (quotations omitted). The nature of the issues in dispute can matter.

As an important side note, these considerations raise a practical question about how to argue them to the Court if briefing has concluded, given a supplement is ordered by a letter to the clerk. It is likely for that reason that parties have kept moving for leave to supplement, even if not required, and the Texas courts have continued to entertain such motions.[56]Nolan v. Klement, No. 14-00-00213-CV, 2001 WL 835561, at *2 n.2 (Tex. App.—Houston [14th Dist.] July 26, 2001, no pet.); Am. Midstream Gas Sols., LP v. Hall, No. 12-19-00010-CV, 2019 WL 4727605, at … Continue reading Motions for leave provide an opportunity to explain. They can serve a purpose still. But there may be other, better options, such as a letter brief, but which depend on what the Court’s local rules allow, prefer, or forbid.

V. What if no supplement has been made?

Texas appellate courts have on occasion sua sponte ordered a supplement. When, and if, a court should do that has generated disagreement.[57]See, e.g., Guniganti v. Kalvakuntla, 346 S.W.3d 242, 247 n.6 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (appellate court directed supplementation of clerk’s record to add documents … Continue reading Indeed, the tension between efficiency and the merits perhaps reaches its zenith when a court knows an omission may affect the result, but a party has not attempted to make a supplement. That happened in Matter of Marriage of Comstock. There, a panel of the First Court disagreed on the approach to take as to a critical item omitted from the record (that the appellant had not attempted to supplement but had instead merely attached to briefing). The majority held the appellant failed to “demonstrate reversible error because the agreed docket control order . . . is not in the appellate record,” and “the appellant bears the burden to bring forward a sufficient record to show the error committed.”[58]Matter of Marriage of Comstock, 639 S.W.3d 118, 130 (Tex. App.—Houston [1st Dist.] 2021, no pet.) (quotation omitted).

Justice Goodman dissented and argued that the Court should, sua sponte, order a supplement.[59]Id. at 144–51 (Goodman, J., dissenting). First, he wrote, “[t]he current appellate rules do not assign the burden” of filing a complete record “to either party.”[60]Id. at 146 (Goodman, J., dissenting). Second, the Texas Supreme Court “has counseled appellate courts against . . . deciding an appellate issue based on a technical deficiency in the record that it could cure simply by directing supplementation.”[61]Id. at 147 (Goodman, J., dissenting). He called the majority’s “departure from ordinary appellate practice . . . especially remarkable” because the appellant “included the November 2016 docket control order as an exhibit to his brief,” meaning “the majority is aware of the order’s contents.”[62]Id. (Goodman, J., dissenting). In his view, “we should never put ourselves in the position of deciding an appeal based on assumptions we know to be untrue.”[63]Id. at 149 (Goodman, J., dissenting).

Comstock suggests a difference in thinking about an appellate court’s role. The majority imposed the consequences on the party committing the error, suggesting the court’s role is to decide the appeal as presented, flaws and all. Justice Goodman agreed the appellant erred, but he saw the Court’s role as to decide the appeal with the record as it should (and could) have been presented, to make the most informed decision. That appears the crux of caselaw on supplements: that ancient tension between administrative efficiency and indulging inefficiencies when needed to see a full, unobscured picture. At least in K.C.B., where constitutional rights were at stake, the Texas Supreme Court favored the latter view; and it has often said that the merits should decide appeals and, wherever possible, not technicalities.

Conclusion

This discussion yields straightforward conclusions. Scrutinize the appellate record early and often and, if possible, in conjunction with trial counsel. Any request for a supplement should be made at the earliest juncture. Err on the side of an early supplement even if the supplemental items’ materiality remains unclear.[64]One word of caution, a party may have to pay for any “unnecessary” supplement. See Tex. R. App. P. 4(b)(3). Do not wait until after the opposing party has filed briefing to supplement the record. The later a supplement arrives—especially when the other side would lack a chance to respond in the ordinary course (in briefing or at least during argument)—the likelihood increases that an appellate court will disregard the supplement’s contents.

References

References
1 See, e.g., O’Keefe v. Phelan, No. 14-00-01194-CV, 2001 WL 395307, at *2 (Tex. App.—Houston [14th Dist.] Apr. 19, 2001, no pet.) (“It is elementary, with limited exceptions that are not material here, an appellate court may not consider matters outside the appellate record.”).
2 See, e.g., Tex. R. App. P. 35.1 (time for filing), 34.6 (reporter’s record request), 35.3 (responsibility for filing).
3 See Tex. R. App. P. 34.2; Tex. R. App. P. 34.5(a) & 34.6(a), (c).
4 Matter of Marriage of Comstock, 639 S.W.3d 118, 149 (Tex. App.—Houston [1st Dist.] 2021, no pet.) (Goodman, J., dissenting) (emphasis added).
5 Tex. R. App. P. 34.5(c)(1) & 34.6(d).
6 Id.; see Roventini v. Ocular Sci., Inc., 111 S.W.3d 719, 725 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (“Nothing in the rule requires that parties seek permission from any court before the supplemental clerk’s record will be included in the appellate record. Thus, the rule neither requires a party to file a motion with this Court seeking permission to supplement the appellate record, nor contemplates an opposing motion to strike a supplemental clerk’s record.”).
7 Tex. R. App. P. 34.5(b)(4); 34.6(b)(3).
8 Tex. R. App. P. 34.5(c)(1) & 34.6(d) (emphasis added).
9 See, e.g., McPherson v. Hollyer, No. 01-09-00619-CV, 2011 WL 1632163, at *3 (Tex. App.—Houston [1st Dist.] Apr. 28, 2011, no pet.); Sowell v. The Kroger Co., 263 S.W.3d 36, 38 (Tex. App.—Houston [1st Dist.] 2006, no pet.); Adams v. Reynolds Tile & Flooring, Inc., 120 S.W.3d 417, 423 (Tex. App.—Houston [14th Dist.] 2003, no pet.); Till v. Thomas, 10 S.W.3d 730, 734 (Tex. App.—Houston [1st Dist.] 1999, no pet.).
10 Tex. R. App. P. 52.7(b).
11 In re Montelongo, 586 S.W.3d 513, 518 n.2 (Tex. App.—Houston [14th Dist.] 2019, orig. proceeding).
12 See In re Morehead, No. 06-21-00025-CV, 2021 WL 1652064, at *3 (Tex. App.—Texarkana Apr. 28, 2021, orig. proceeding); In re Cooper, No. 06-10-00057-CV, 2010 WL 3136958, at *3 (Tex. App.—Texarkana Aug. 6, 2010, orig. proceeding); In re Cervantes, 300 S.W.3d 865, 871 (Tex. App.—Waco 2009, orig. proceeding).
13 E.g., Cervantes, 300 S.W.3d at 871.
14 Aluminum Chem. (Bolivia), Inc. v. Bechtel Corp., 28 S.W.3d 49, 50 (Tex. App.—Texarkana 2000, no pet.); Roberts v. Roberts, 999 S.W.2d 424, 438 (Tex. App.—El Paso 1999, no pet.).
15 Silk v. Terrill, 898 S.W.2d 764, 766 (Tex. 1995).
16 See El Paso Cnty. v. Ontiveros, 36 S.W.3d 711, 714 (Tex.—El Paso 2001, no pet.).
17 Bennett v. Cochran, 96 S.W.3d 227, 230 (Tex. 2002); see also Guest v. Dixon, 195 S.W.3d 687, 688 (Tex. 2006).
18 I say arguably because despite the supplement rules, an appellate court retains the residual authority “to suspend a rule’s operation in a particular case and order a different procedure” to “expedite a decision or for other good cause.” Tex. R. App. P. 2. And at least one jurist has thought the appellate courts may properly reject the filing of a supplement as part of the record if it contains irrelevant materials or materials that were not before the trial court. See Roventini, 111 S.W.3d at 726 (Hedges, J., concurring) (“I believe that the better practice is to decline to file any material that was not before the trial court, even though it may be designated by the moving party as a ‘supplemental clerk’s record.’”).
19 Lance v. Robinson, 543 S.W.3d 723, 733 (Tex. 2018); FedEx Corp. v. Contreras, No. 04-19-00757-CV, 2020 WL 4808721, at *9 (Tex. App.—San Antonio Aug. 19, 2020, no pet.) (mem. op.); Russo v. Adame, No. 02-15-00219-CV, 2016 WL 5957017, at *2 n.5 (Tex. App.—Fort Worth Oct. 13, 2016, no pet.) (mem. op.); Brand FX, LLC v. Rhine, 458 S.W.3d 195, 200 (Tex. App.—Forth Worth 2015, no pet.); Morris v. O’Neal, 464 S.W.3d 801, 809 (Tex. App.—Houston [14th Dist.] 2015, no pet.); Republic Servs., Inc. v. Rodriguez, No. 14-12-01054-CV, 2014 WL 2936172, at *3 (Tex. App.—Houston [14th Dist.] June 26, 2014, no pet.) (mem. op.); Smith v. City of League City, 338 S.W.3d 114, 123 n.6 (Tex. App.—Houston [14th Dist.] 2011, no pet.); Walp v. Williams, 330 S.W.3d 404, 407 (Tex. App.—Fort Worth 2010, no pet.); Reynolds v. Murphy, 188 S.W.3d 252, 256 n.1 (Tex. App.—Fort Worth 2006, pet. denied); Roventini, 111 S.W.3d at 726; Baker CATV Constr., Inc. v. Ampro, Inc., 989 S.W.2d 789, 795–96 (Tex. App.—Houston [1st Dist.] 1999, no pet.).
20 Matter of Marriage of Harrison, 557 S.W.3d 99, 106 n.2 (Tex. App.—Houston [14th Dist.] 2018, pet. denied).
21 Baylor Scott & White, Hillcrest Med. Ctr. v. Weems, 575 S.W.3d 357, 366 (Tex. 2019) (“[W]hile the record may be supplemented under the appellate rules if something has been omitted, the supplementation rules cannot be used to create new evidence.” (quotation omitted); Interest of A.S.M., No. 08-19-00212-CV, 2021 WL 3260625, at *4 n.7 (Tex. App.—El Paso July 30, 2021, no pet.); Morris v. Morris, No. 12-07-00088-CV, 2007 WL 2045330, at *2 (Tex. App.—Tyler July 18, 2007, no pet.) (mem. op.); Daniels v. Univ. of Tex. Health Sci. Ctr. of Tyler, 222 S.W.3d 4, 6 (Tex. App.—Tyler 2004, no pet.); Intermarque Automotive Prods., Inc. v. Feldman, 21 S.W.3d 544, 547 n.3 (Tex. App.—Texarkana 2000, no pet.); Aluminum Chem. (Bolivia), Inc. v. Bechtel Corp., 28 S.W.3d 49, 50 (Tex. App.—Texarkana 2000, no pet.); Richards v. Comm’n for Lawyer Discipline, 35 S.W.3d 243, (Tex. App.—Houston [14th Dist.] 2000, no pet.); Disco Mach. of Liberal Co. v. Payton, 900 S.W.2d 71, 74–75 (Tex. App.—Amarillo 1995, writ denied); R.R. Comm’n of Texas v. Belknap Van & Storage Co., 893 S.W.2d 1, 2 (Tex. App.—Austin 1994, no pet.); Gerdes v. Marion State Bank, 774 S.W.2d 63, 65 (Tex. App.—San Antonio 1989, writ denied). There is a minor exception for deposition testimony read during trial. See Rogers v. CIGNA Ins. Co. of Tex., 881 S.W.2d 177, 180 (Tex. App.—Houston [1st Dist.] 1994, no pet.) (“Where (1) deposition testimony is presented to the jury, (2) the deposition testimony is not transcribed into the record by the court reporter, and (3) a proper written transcription of the same testimony was made at the time the deposition was given, supplementation of the record with the transcription made at the time the deposition was given is correcting the record, not creating it. . . . What we are adding to the record is merely a transcription of testimony that the jury, it is undisputed, heard at trial.”); accord Southern Pac. Transp. Co. v. Hernandez, 804 S.W.2d 557 (Tex. App.—San Antonio 1991, writ denied).
22 See Gibson v. Blackburn, 744 F.2d 403, 405 n.3 (5th Cir. 1984) (“Although a court of appeals will not ordinarily enlarge the record to include material not before the district court, it is clear that the authority to do so exists.”); United States v. Anderson, 712 F. App’x 383, 387 n.4 (5th Cir. 2017) (“Anderson moved to supplement the record with Adams’ letter, and the Government opposed. Though we do not lightly grant motions to supplement the record with material not presented to the district court . . . , it is clear that the authority to do so exists.” (quotations omitted); Dakota Indus., Inc. v. Dakota Sportswear, Inc., 988 F.2d 61, 63 (8th Cir. 1993) (“When the interests of justice demand it, an appellate court may order the record of a case enlarged. . . . This authority to enlarge a record is rarely exercised and is a narrow exception to the general rule that an appellate court may consider only the record made before the district court.”).
23 See Approval of Revisions to the Texas Rules of Appellate Procedure, Misc. Docket No. 97-0956 (Tex. Mar. 20, 1997).
24 Worthy v. Collagen Corp., 967 S.W.2d 360, 366 (Tex. 1998) (“Former Rule 55(b) of the Texas Rules of Appellate Procedure required an appellate court to grant a party leave to supplement the record prior to submission unless it would unreasonably delay disposition of the appeal. After submission, however, and after judgment especially, the court has more discretion to deny supplementation.”).
25 See, e.g., Guilder v. State, 794 S.W.2d 765, 771–72 (Tex. App.—Dallas 1990, no pet.); K & S Interests, Inc. v. Tex. Am. Bank/Dallas, 749 S.W.2d 887 (Tex. App.—Dallas 1988, writ denied).
26 820 S.W.2d 121, 122 (Tex. 1991).
27 Id.
28 Id.; accord Nuby v. Allied Bankers Life Ins. Co., 797 S.W.2d 396, 398 (Tex. App.—Austin 1990, no writ) (“[A]lthough the rules do give the court discretion to allow supplementation of the record after submission, such discretion should not be exercised absent unusual circumstances.”); Jackson v. S.P. Leasing Corp., 774 S.W.2d 673, 677 (Tex. App—Texarkana 1989, writ denied); Elkins v. Auto Recovery Bur., 649 S.W.2d 73, 76 (Tex. App.—Dallas 1983, writ ref’d n.r.e.).
29 898 S.W.2d 764, 766 (Tex. 1995) (per curiam).
30 Id.
31 967 S.W.2d 360, 366 (Tex. 1998).
32 Id. 
33 See Roventini, 111 S.W.3d at 725 (“Pursuant to the plain language of this rule, items included in a supplemental clerk’s record become part of the appellate record when a party or a court directs the trial court clerk to prepare and file a supplemental clerk’s record.”).
34 Est. of Nunu, 542 S.W.3d 67, 74 (Tex. App.—Houston [14th Dist.] 2017, pet. denied) (noting the marked departure from old Rule 50(d). In practice however, having a complete record should might still matter more to the appellant. See Gallagher v. Fire Ins. Exch., 950 S.W.2d 370, 371 (Tex. 1997) (a court must presume that items omitted from the record “supported the trial court’s judgment” (quoting Crown Life, 820 S.W.2d at 122).
35 E.g., Zoya Enters., Inc. v. Sampri Invs., L.L.C., No. 14-04-01158-CV, 2006 WL 1389582, at *3–4 (Tex. App.—Houston [14th Dist.] May 23, 2006, no pet.) (mem. op.) (“The burden was on Zoya . . . to ensure that all the documents it needed for this Court to fully review the correctness of the summary judgment were in the record.”).
36 Roventini, 111 S.W.3d at 726.
37 See, e.g., Interest of A.S.M., No. 08-19-00212-CV, 2021 WL 3260625, at *4 n.7 (Tex. App.—El Paso July 30, 2021, no pet.) (“[B]ecause even if the parties have great latitude to include supplemental items in the Clerk’s Record, it is still up to this Court whether to consider them.”); accord Estate of Hoskins, 501 S.W.3d 295, 311 n.12 (Tex. App.—Corpus Christi 2016, no pet.); Brand FX, LLC v. Rhine, 458 S.W.3d 195, 200 (Tex. App.—Forth Worth 2015, no pet.) (“[O]ur scope of review is not determined by a document’s inclusion in the clerk’s record.”).
38 See, e.g., Wash. Nat’l Ins. Co. v. Walline, No. 07-98-0266-CV, 1998 WL 726079, at *1 n.1 (Tex. App.—Amarillo Oct. 19, 1998, no pet.) (“Under the old Rules of Appellate Procedure, a request to file a post-submission supplemental transcript after the appellate court had issued its opinion and rendered its judgment would not be honored absent unusual circumstances.”); accord In re Morehead, No. 06-21-00025-CV, 2021 WL 1652064, at *3 (Tex. App.—Texarkana Apr. 28, 2021, orig. proceeding) (“[W]e conclude that the traditional rule still governs whether a party may supplement a record after an opinion has been issued.”); In re Cooper, No. 06-10-00057-CV, 2010 WL 3136958, at *3 (Tex. App.—Texarkana Aug. 6, 2010, orig. proceeding).
39 McPherson v. Hollyer, No. 01-09-00619-CV, 2011 WL 1632163, at *3 (Tex. App.—Houston [1st Dist.] Apr. 28, 2011, no pet.); accord Turull v. Ferguson, No. 01-09-00067-CV, 2010 WL 2991087, at *2 (Tex. App.—Houston [1st Dist.] July 29, 2010, no pet.).
40 See Ortegon v. Benavides, No. 04-05-00768-CV, 2008 WL 577175, at *3 & *6 n.2 (Tex. App.—San Antonio Mar. 5, 2008, pet. denied) (mem. op.) (“The supplemental reporter’s record containing Ortegon’s testimony was not filed until months after briefing was completed and the case was at issue and ready for submission. Benavides asserts allowing the late designation of these issues will irreparably harm and prejudice him because he was unable to fully and properly respond to such issues in his briefing as he was without the benefit of Ortegon’s testimony. We agree.”); see also Gen. Life & Accident Ins. Co. v. Handy, 766 S.W.2d 370, 372–73 (Tex. App.—El Paso 1989, no writ) (court denied pre-submission leave under Rule 55(b) finding that to grant motion would necessitate unwarranted delay).
41 E.g., Jackson v. S.P. Leasing Corp., 774 S.W.2d 673, 677 (Tex. App.—Texarkana 1989, writ denied) (“While we have wide discretion to permit supplementation of the transcript so as to include omitted matter, ordinarily the discretion should not be exercised in the absence of some unusual circumstance to allow omitted matter be filed after we issue a decision.”).) A side note: this pre- and post-submission distinction has old roots. See Ross v. McGowen, 58 Tex. 603, 609–10 (Tex. 1883) (“After a cause is once submitted upon a transcript supposed to be correct, as the parties have made no objection to it; and we have decided it upon such transcript, we cannot undertake to re-examine such cause because the counsel for either party discovers a defect in the transcript, which, if supplied, might possibly lead us to a different conclusion.”); accord U.S. Fid. & Guar. Co. v. Garrett, 105 S.W.2d 868, 870 (Tex. Comm’n App. 1937) (“It was undoubtedly the duty of plaintiff to have the record corrected, if this pleading actually existed, prior to the submission of the cause in the Court of Civil Appeals.”).
42 Jones v. State, No. 03-05-00512-CV, 2007 WL 1372671, at *1 n.2 (Tex. App.—Austin May 11, 2007, no pet.) (mem. op.) (“Although the supplemental records were filed after this Court’s opinion issued, the rules of appellate procedure do not bar such after-the-fact supplementation. Instead, the clerk’s record may be supplemented at the request of either party, the appellate court, or the trial court, and any supplemental clerk’s record will be part of the appellate record.” (quotation omitted); Drake v. Walker, 529 S.W.3d 516, 522–23 (Tex. App.—Dallas 2017, no pet.) (permitting supplementation while “submission of this appeal was pending”).
43 See, e.g., S.E.A. Leasing, Inc. v. Steele, 264 S.W.3d 71, 81 (Tex. App.—Houston [1st Dist.] Aug. 17, 2007, no pet.) (Taft, J., concurring on denial of en banc reconsideration); Tex. First Nat’l Bank v. Ng, 167 S.W.3d 842, 866 (Tex. App.—Houston [14th Dist.] 2005, pet. granted); Law Offices of Robert L. Crill, Inc. v. Bond, No. 05-98-01796-CV, 2002 WL 1308910, at *1–2 (Tex. App.—Dallas June 17, 2002, no pet.).
44 E.g., Nolan v. Klement, No. 14-00-00213-CV, 2001 WL 835561, at *2 n.2 (Tex. App.—Houston [14th Dist.] July 26, 2001, no pet.) (“[A]ppellant filed a post-submission motion to supplement the trial record seeking to include her tendered jury charge which had been rejected by the trial court. We have denied appellant’s request because of the unwarranted delay this would cause in disposition of the appeal.”).
45 See In re K.C.B., 251 S.W.3d 514, 516–17 (Tex. 2008) (per curiam) (“Given the constitutional dimensions” of the parent-child relationship, “justice is not served when a case like this, ripe for determination on the merits, is decided on ‘a procedural technically’ that can easily be corrected”); In re Cervantes, 300 S.W.3d 865, 871 (Tex. App.—Waco 2009, orig. proceeding) (“‘Unusual circumstances’ exist in this case because of the confluence between the interests at stake, the requirements of the appellate rules, and the deadlines imposed by the Family Code for state-initiated termination proceedings.”); Castaneda v. Tex. Dep’t of Protective & Regulatory Servs., 148 S.W.3d 509, 521 (Tex. App.—El Paso 2004, no pet.) (“Given the constitutional dimension of the parent-child relationship, we have granted the motion and reviewed the exhibits.”).
46 Zoya, 2006 WL 1389582, at *2–4.
47 Id.   
48 Id.   
49 Id.     
50 No. 01-04-00865-CV, 2007 WL 926659, at *2 (Tex. App.—Houston [1st Dist.] Mar. 29, 2007, pet. denied).
51 Id.     
52 Id.       
53 251 S.W.3d at 516–17.
54 Id.       
55 Id. at 517 (quotations omitted).
56 Nolan v. Klement, No. 14-00-00213-CV, 2001 WL 835561, at *2 n.2 (Tex. App.—Houston [14th Dist.] July 26, 2001, no pet.); Am. Midstream Gas Sols., LP v. Hall, No. 12-19-00010-CV, 2019 WL 4727605, at *3 (Tex. App.—Tyler Sept. 27, 2019, pet. denied).
57 See, e.g., Guniganti v. Kalvakuntla, 346 S.W.3d 242, 247 n.6 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (appellate court directed supplementation of clerk’s record to add documents included in appendix to brief that were absent from appellate record); GMR Gymnastics Sales, Inc. v. Walz, 117 S.W.3d 57, 60 n.2 (Tex. App.—Fort Worth 2003, pet. denied) (ordering a supplementation of the reporter’s record after oral argument); Lara v. State, 962 S.W.2d 148, 149–50 (Tex. App.—San Antonio 1998, no pet.) (appellate court directed supplementation of clerk’s record to include stipulations considered but not admitted into evidence by trial court).
58 Matter of Marriage of Comstock, 639 S.W.3d 118, 130 (Tex. App.—Houston [1st Dist.] 2021, no pet.) (quotation omitted).
59 Id. at 144–51 (Goodman, J., dissenting).
60 Id. at 146 (Goodman, J., dissenting).
61 Id. at 147 (Goodman, J., dissenting).
62 Id. (Goodman, J., dissenting).
63 Id. at 149 (Goodman, J., dissenting).
64 One word of caution, a party may have to pay for any “unnecessary” supplement. See Tex. R. App. P. 4(b)(3).