Background
Lena Essing Comstock filed an appeal from an order entered in trial court cause number 2024-PR-00469-3 (a probate matter) in the County Court at Law Number 3 of Nueces County, Texas. Appellate procedure in Texas requires appellants to pay for preparation of the clerk’s record or to arrange for payment before the appeal proceeds. The clerk’s record contains the trial court’s documents and is essential to appellate review.
After Comstock failed to make payment arrangements, the Clerk of the Court sent two notices—on April 28, 2026, and again on May 22, 2026—informing her that the clerk’s record was due on April 27 and that the appeal would be dismissed unless she paid for the record and provided proof within ten days. Comstock did not respond to either notice, did not arrange payment, and did not request leave to proceed without payment of costs.
The Court’s Holding
The Thirteenth Court of Appeals dismissed the appeal for want of prosecution. Texas Rules of Appellate Procedure 37.3(b) and 42.3(b)-(c) authorize courts to dismiss an appeal when an appellant fails to pay or arrange payment for the clerk’s record, unless the appellant is entitled to proceed without payment of costs. The court noted that it also has authority to dismiss for an appellant’s failure to comply with court orders or clerk notices requiring action within a specified time.
The court found that Comstock had not paid for the clerk’s record, had not arranged to pay, and had not established entitlement to proceed without payment. Accordingly, the appeal was dismissed per the appellate rules.
Key Takeaways
- Failure to pay for the clerk’s record is grounds for automatic dismissal of an appeal under Texas appellate procedure.
- Court notices setting deadlines for compliance are binding; failure to respond results in dismissal for want of prosecution.
- An appellant must either pay, arrange payment, or affirmatively request permission to proceed without payment of costs; silence is not sufficient.
Why It Matters
This case illustrates how strictly Texas courts enforce appellate procedural rules. A substantive right to appeal can be forfeited not by losing on the merits but by failing to comply with administrative requirements—here, simply paying for the record. The opinion reinforces that appellants must act promptly and responsibly when the court provides notice of deadlines.
For practitioners, the case underscores the importance of managing appellate costs and responding to clerk communications. Appellants who cannot afford costs should file requests to proceed without payment rather than allowing appeals to lapse by default.