Unreported / Non-Citable
Background
Thomas Mann, Jr. appealed from the 169th District Court of Bell County in a case against Elon Musk. The clerk’s record was due in the Third Court of Appeals on July 13, 2026, but the trial-court clerk did not file it because Mann had not paid or arranged to pay the preparation fee.
On July 27, the appellate court notified Mann that the record had not been filed, directed him to make arrangements for it and submit a status report by August 6, and warned that noncompliance could result in dismissal for want of prosecution. Mann responded that he intended to proceed using an appendix, but the court had previously informed him that he missed the deadline to elect that procedure.
The Court’s Holding
The court dismissed the appeal for want of prosecution under Texas Rule of Appellate Procedure 37.3(b). That rule permits dismissal when the clerk’s record is not filed because the appellant failed to pay or arrange payment of the clerk’s fee, unless the appellant is entitled to proceed without paying costs.
Mann had neither paid or arranged to pay the fee nor established an entitlement to proceed without payment under Texas Rule of Civil Procedure 145. His proposed appendix did not cure the problem because Texas law required him to elect that procedure within ten days after filing his notice of appeal, and he had not done so.
Key Takeaways
- An appellant’s failure to pay or arrange payment for preparation of the clerk’s record may result in dismissal for want of prosecution.
- An appellant seeking to replace the clerk’s record with an appendix must timely elect that procedure within ten days after filing the notice of appeal.
- The exception for proceeding without payment applies only when the appellant establishes entitlement to do so.
Why It Matters
The decision underscores that appellate record requirements and election deadlines are consequential, even when the merits of an appeal have not been reached. An appellant cannot avoid dismissal by proposing an appendix after the statutory and rule-based election period has expired.
For appellate practitioners, the opinion highlights the need to promptly arrange payment for the clerk’s record, timely establish indigency or another basis for proceeding without costs, or make a valid and timely appendix election.