In the Interest of H.S., a Child, 02-25-00671-CV, March 26, 2026.
On appeal from 97th District Court, Archer County, Texas
Synopsis
The Second Court of Appeals dismissed a child-protection appeal for want of prosecution after the appellant failed to arrange payment for the clerk’s record, despite notice and a ten-day opportunity to cure. The court applied the Texas Rules of Appellate Procedure governing preparation and filing of the appellate record and assessed appellate costs against the appellant.
Relevance to Family Law
For Texas family-law litigators, this decision is a reminder that merits issues in SAPCRs and child-protection cases can become irrelevant if the record is not perfected—especially when the appellate court has warned that dismissal will follow nonpayment. In divorce, custody, and property appeals, the same record-payment dynamics apply: if the clerk’s record (and, where applicable, the reporter’s record) is not timely arranged, the appeal can be dismissed before briefing, leaving the trial court’s conservatorship, possession, support, or property division orders intact and immediately enforceable.
Case Summary
Fact Summary
This was an appeal arising out of a child-related case from the 97th District Court of Archer County. The appellate record required a clerk’s record from the trial-court clerk. The clerk informed the Second Court of Appeals that the appellant had not arranged payment for the clerk’s record as required by the Texas Rules of Appellate Procedure.
On February 23, 2026, the court issued a notice to appellant advising that payment arrangements had not been made. The court expressly warned that it would dismiss the appeal for want of prosecution unless, within ten days, appellant (1) arranged to pay for the clerk’s record and (2) provided proof of payment to the court. Appellant did not cure. On March 26, 2026, the court dismissed the appeal and taxed costs against appellant.
Issues Decided
- Whether the appeal should be dismissed for want of prosecution when the appellant fails to arrange payment for the clerk’s record after notice and an opportunity to cure.
- Whether costs should be assessed against the appellant following dismissal for want of prosecution in these circumstances.
Rules Applied
The court relied on the Texas Rules of Appellate Procedure governing record preparation, failure to file the record, dismissal, and costs, including:
- TRAP 35.3(a)(2) (appellant must pay or make arrangements to pay the clerk’s fee for preparing the clerk’s record).
- TRAP 35.3(c) (authorizes the appellate court to act when the record has not been timely filed).
- TRAP 37.3(b) (if the clerk’s record is not filed because appellant failed to pay or make payment arrangements, the court may dismiss for want of prosecution after giving a reasonable opportunity to cure).
- TRAP 42.3(b) (dismissal for want of prosecution).
- TRAP 43.2(f) (dismissal as a type of judgment).
- TRAP 44.3 (error-correction principle requiring a chance to remedy certain procedural defects before dismissal).
- TRAP 43.4 (taxation of costs).
Application
The court’s reasoning was procedural and linear: the clerk reported nonpayment/non-arrangement; the court provided written notice of the deficiency; the court gave a defined cure period (ten days) and specified the required cure (arrange payment and provide proof). That notice satisfied the due-process-oriented safeguards embedded in TRAP 37.3(b) and TRAP 44.3—i.e., dismissal should not occur without an opportunity to fix a curable defect.
When appellant did nothing, the court treated the absence of payment arrangements as a failure to prosecute the appeal. Without a clerk’s record, the appeal cannot proceed in any meaningful way (briefing, review of preserved error, and any merits disposition depend on a filed record). The court therefore exercised its discretion under the dismissal rules and rendered a dismissal judgment, then assessed costs against appellant under the costs rule.
Holding
The court held that dismissal for want of prosecution was appropriate because appellant failed to arrange payment for the clerk’s record after the court provided notice and a reasonable opportunity to cure, as contemplated by TRAP 37.3(b) and related rules. The dismissal ended the appeal without reaching the merits.
The court further held that appellant must pay all costs of the appeal, taxing costs against the noncompliant appellant under TRAP 43.4.
Practical Application
In family-law appeals, record problems are rarely “clerical”—they are frequently case-dispositive. This memorandum opinion underscores several strategic realities for appellate-minded trial counsel and appellate counsel in SAPCRs, divorces, and CPS/termination matters:
- Perfecting the record is part of perfecting the appeal. If your client cannot or will not fund the clerk’s record, the appeal may never reach a briefing schedule.
- The cure window is not a suggestion. When the court sets a deadline and demands proof of payment arrangements, treat it like an accelerated deadline with immediate consequences.
- Cost-shifting is automatic enough to matter. Even where the merits are never reached, dismissal commonly results in costs being taxed against the appellant—useful in settlement posture and risk counseling.
- This risk is not limited to CPS/termination. Property-division and custody appeals can be lost the same way, leaving enforcement and post-judgment leverage entirely with the appellee.
Checklists
Record-Funding Triage (Day 0–3 After Notice of Appeal)
- Confirm with the district clerk the estimated cost and required deposit for the clerk’s record.
- Determine whether a reporter’s record is requested and obtain the court reporter’s estimate and deposit requirements.
- Calendar expected record deadlines and any accelerated timetable that may apply.
- Evaluate whether the client can fund the record immediately; if not, consider lawful alternatives (below) before deadlines run.
Payment Arrangements That Actually Satisfy TRAP 35.3(a)(2)
- Obtain written confirmation from the clerk of what constitutes “arrangements” (deposit, full payment, payment portal receipt, etc.).
- Pay the required deposit promptly and request a receipt suitable for filing in the court of appeals.
- If payment is made by a third party, ensure the clerk ties the payment to the correct cause number and party.
- File proof of payment/arrangements with the appellate court the same day payment is made.
Responding to a Court of Appeals “Nonpayment of Clerk’s Record” Notice
- Read the notice for the specific cure requirements (pay/arrange and provide proof).
- Contact the trial-court clerk immediately to confirm the deficiency and the exact dollar amount.
- Cure within the stated deadline; do not assume “in process” is sufficient.
- File a response attaching proof (receipt, clerk email confirmation, or payment acknowledgment).
- If more time is truly necessary, file an appropriate motion before the deadline with a concrete plan and date certain for payment.
Client Counseling for Family Appeals (CPS, SAPCR, Divorce/Property)
- Explain in writing that failure to fund the record can cause dismissal before the merits are reviewed.
- Provide a budget range for clerk’s and reporter’s records early, not after notice issues.
- Discuss the enforcement consequences of dismissal (standing final orders, arrearage exposure, turnover risk, etc.).
- Build record costs into any temporary-orders strategy and settlement posture.
Citation
In the Interest of H.S., a Child, No. 02-25-00671-CV (Tex. App.—Fort Worth Mar. 26, 2026) (mem. op.) (per curiam).
Full Opinion
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