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Algoe v. Gray — Appeal dismissed after appellant failed to pay for the clerk’s record

Unreported / Non-Citable

Case
Randy Algoe v. Stephen Gray
Court
Texas Thirteenth Court of Appeals
Judge
Justice Silva; Justice Peña; Justice West
Date Decided
October 29, 2026
Docket No.
13-26-00369-CV
Topics
Appellate Procedure; Clerk’s Record; Costs; Dismissal for Want of Prosecution
Source
Read the full opinion

Background

Randy Algoe filed a notice of appeal on May 5, 2026, but did not pay or make arrangements to pay for the clerk’s record. The appellate clerk twice warned him that the appeal could be dismissed for want of prosecution if he failed to provide proof of payment arrangements.

The court later abated the appeal and remanded for findings concerning Algoe’s request for the record and his ability to obtain it without payment. The trial court found that Algoe timely requested the record but was not indigent, was not entitled to a free appellate record, and had neither paid nor made satisfactory payment arrangements. After receiving notice of the record’s cost and another opportunity to pay, Algoe argued that another party was responsible for the expense.

The Court’s Holding

The court concluded that Algoe was not entitled to proceed without paying costs. It explained that responsibility for appellate costs may be allocated in the eventual judgment, but that possibility did not excuse Algoe from paying or arranging payment for preparation of the clerk’s record at the outset.

Because no clerk’s record had been filed, Algoe had failed to comply with the clerk’s notices, and he had received a reasonable opportunity to cure the deficiency, the court reinstated the appeal, denied his objections and motion to prevent dismissal and ensure a complete supplemental record, and dismissed the appeal for want of prosecution under Texas Rules of Appellate Procedure 37.3(b) and 42.3(b), (c).

Key Takeaways

  • An appellant who is not entitled to proceed without costs must pay or make satisfactory arrangements to pay for the clerk’s record.
  • The possibility that appellate costs may ultimately be taxed against another party does not eliminate the appellant’s obligation to arrange payment for preparation of the record.
  • An appellate court may dismiss for want of prosecution after giving the appellant a reasonable opportunity to cure the failure to secure the clerk’s record.

Why It Matters

The decision underscores that obtaining the clerk’s record is a threshold procedural responsibility. Even when an appellant timely requests the record and disputes who should ultimately bear the cost, failure to pay or arrange payment after repeated warnings can end the appeal without consideration of its merits.

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