Second Court of Appeals Dismisses Family Law Appeal for Failure to Pay for Clerk’s Record

Memorandum Opinion Per Curiam, 02-25-00395-CV, January 30, 2026.

On appeal from the 360th District Court, Tarrant County, Texas.

Synopsis

The Second Court of Appeals dismissed this appeal for want of prosecution following the appellant’s persistent failure to arrange payment for the clerk’s record. Despite receiving a formal warning and a subsequent extension of time to comply, the appellant failed to provide the requisite proof of payment, triggering dismissal under Texas Rules of Appellate Procedure 37.3(b) and 42.3(b).

Relevance to Family Law

In the high-stakes environment of Tarrant County family law litigation—where custody, property division, and support obligations often hinge on the precision of the trial court record—this case serves as a critical procedural reminder. Whether an appeal involves a complex divorce or a modification suit, the burden of ensuring the record is paid for and filed rests solely on the appellant. For practitioners, this opinion underscores that even in sensitive family law matters, the appellate courts will not waive jurisdictional or procedural prerequisites. A failure to manage the administrative costs of the appeal is a terminal error that results in the forfeiture of the right to appellate review, regardless of the merits of the underlying case.

Case Summary

Fact Summary

The appellant, Curtis Lilly, sought appellate review of a judgment rendered in the 360th District Court. Following the filing of the notice of appeal, the Tarrant County District Clerk notified the Second Court of Appeals that the appellant had failed to make arrangements to pay for the preparation of the clerk’s record. On September 12, 2025, the Court of Appeals issued a notice to the appellant, warning that the appeal was subject to dismissal for want of prosecution unless payment was arranged and proof provided within ten days.

In response, the appellant sought and was granted an extension of time. The Court’s order required the appellant to arrange payment for both the clerk’s record and the reporter’s record, with a firm deadline of December 22, 2025, to file proof of such arrangements. The deadline passed without the appellant filing the required proof of payment or making the necessary arrangements with the trial court clerk.

Issues Decided

The central issue decided was whether an appellant’s continued failure to satisfy the financial requirements for the preparation of the clerk’s record, following notice and an extension of time, warrants involuntary dismissal of the appeal under the Texas Rules of Appellate Procedure.

Rules Applied

The Court applied Texas Rule of Appellate Procedure 35.3(a)(2), which mandates that an appellant must arrange for payment of the clerk’s record as a condition of its preparation and filing. The Court further invoked Rule 37.3(b), which specifically authorizes an appellate court to dismiss an appeal for want of prosecution if the clerk’s record is not filed due to the appellant’s failure to pay. Additionally, the Court cited Rule 42.3(b), the general provision for involuntary dismissal for failure to prosecute, and Rule 43.4 regarding the assessment of appellate costs.

Application

The Second Court of Appeals followed a strict procedural trajectory in response to the appellant’s inaction. Under the TRAP, while the clerk has a duty to prepare the record, that duty is contingent upon the appellant making satisfactory payment arrangements. When the Tarrant County District Clerk flagged the non-payment, the Court of Appeals fulfilled its obligation under Rule 37.3(b) by providing the appellant with a “10-day letter” to cure the defect.

The Court demonstrated procedural patience by granting the appellant’s motion for an extension, moving the compliance deadline into late December. However, the appellant’s failure to act by the extended deadline effectively stalled the appellate process. In a narrative common to defaulted appeals, the Court concluded that without a record, the appeal could not proceed. Consequently, the Court exercised its discretionary authority to dismiss the case to clear its docket of non-compliant litigation.

Holding

The Court held that the appeal must be dismissed for want of prosecution. The Court determined that because the appellant was given ample notice and an extension of time but failed to arrange payment for the clerk’s record, dismissal was the mandatory remedy under Rules 37.3(b) and 42.3(b).

In a secondary holding, the Court ordered the appellant to bear all costs associated with the appeal. This holding follows the standard application of Rule 43.4, ensuring that the financial burden of the aborted appeal rests with the party who failed to prosecute it.

Practical Application

This dismissal highlights the necessity of “administrative diligence” in family law appeals. Practitioners should not assume that a trial court clerk will prepare the record simply because a notice of appeal has been filed. It is incumbent upon appellate counsel—or trial counsel transitioning the case—to immediately coordinate with the court reporter and the district clerk to ensure fee deposits are made or that an indigency affidavit is properly on file. In cases involving pro se litigants or high-conflict parties, counsel for the appellee should monitor the appellate docket closely; an appellant’s failure to pay for the record is one of the most efficient grounds for a motion to dismiss, potentially ending a meritless appeal before briefing even begins.

Checklists

Managing the Appellate Record (Appellant’s Side)

• Identify the specific District Clerk personnel responsible for appellate record preparation immediately after filing the Notice of Appeal.
• Secure a written estimate for the Clerk’s Record and the Reporter’s Record within 10 days of filing the notice.
• Confirm with the client that funds for the record are distinct from and in addition to appellate attorney’s fees.
• File a formal “Notice of Payment Arrangements” with the Court of Appeals as soon as the deposit is made to preempt any “failure to pay” notices from the clerk.

Defending Against a Dilatory Appeal (Appellee’s Side)

• Monitor the Court of Appeals’ online docket for the “Clerk’s Record Due” date.
• If the record is not filed by the deadline, check for a notice from the Court regarding failure to pay.
• Track any motions for extension filed by the appellant regarding payment; if multiple extensions are granted without progress, consider filing a response opposing further delay.
• Upon the expiration of an extension deadline without proof of payment, verify that the Court is moving toward dismissal under Rule 37.3(b).

Citation

Lilly v. Thompson, No. 02-25-00395-CV (Tex. App.—Fort Worth Jan. 30, 2026, no pet. h.) (mem. op.).

Full Opinion

The full opinion of the Second Court of Appeals can be found here: View Opinion

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