Rule 37.

1997 Rules of Appellate Procedure

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Rule 51

RULE 37. DUTIES OF THE APPELLATE CLERK ON RECEIVING THE NOTICE OF APPEAL AND RECORD

37.1 On Receiving the Notice of Appeal. If the appellate clerk determines that the notice of appeal is defective, the clerk must notify the parties of the defect so that it can be remedied, if possible. If a proper notice of appeal is not filed in the trial court within 30 days of the date of the clerk's notice, the clerk must refer the matter to the appellate court, which will make an appropriate order.

37.2 On Receiving the Record. On receiving the clerk’s record from the trial court clerk or the reporter’s record from the reporter, the appellate clerk must determine whether each complies with the Supreme Court’s and Court of Criminal Appeals’ order on preparation of the record. If so, the clerk must endorse on each the date of receipt, file it, and notify the parties of the filing and the date. If not, the clerk must endorse on the clerk’s record or reporter’s record — whichever is defective — the date of receipt and return it to the official responsible for filing it. The appellate court clerk must specify the defects and instruct the official to correct the defects and return the record to the appellate court by a specified date.

37.3 If No Record Filed.

(a) Notice of late record .

(1) Civil cases. If the clerk’s record or reporter’s record has not been timely filed, the appellate clerk must send notice to the official responsible for filing it, stating that the record is late and requesting that the record be filed within 30 days if an ordinary or restricted appeal, or 10 days if an accelerated appeal. The appellate clerk must send a copy of this notice to the parties and the trial court. If the clerk does not receive the record within the stated period, the clerk must refer the matter to the appellate court. The court must make whatever order is appropriate to avoid further delay and to preserve the parties' rights.

(2) Criminal cases. If the clerk’s record or reporter’s record has not been timely filed, the appellate court clerk must refer the matter to the appellate court. The court must make whatever order is appropriate to avoid further delay and to preserve the parties’ rights.

(b) If no clerk ’s record filed due to appellant's fault . If the trial court clerk failed to file the clerk’s record because the appellant failed to pay or make arrangements to pay the clerk’s fee for preparing the clerk’s record, the appellate court may — on a party’s motion or its own initiative — dismiss the appeal for want of prosecution unless the appellant was entitled to proceed without payment of costs. The court must give the appellant a reasonable opportunity to cure before dismissal.

(c) If no reporter ’s record filed due to appellant's fault . Under the following circumstances, and if the clerk’s record has been filed, the appellate court may — after first giving the appellant notice and a reasonable opportunity to cure — consider and decide those issues or points that do not require a reporter’s record for a decision. The court may do this if no reporter’s record has been filed because:

(1) the appellant failed to request a reporter’s record; or

(2)

(A)appellant failed to pay or make arrangements to pay the reporter's fee to prepare the reporter’s record; and

(B)the appellant is not entitled to proceed without payment of costs.

Notes and Comments
Comment to 1997 change: Former Rules 56 and 57(a) are merged. Subdivisions 37.2 and 37.3 are new.

Last modified: March 25, 2010