If a tree falls in a forest, but the court reporter doesn't note it in the record, did the tree really fall?
A fundamental error-preservation principle is that if it's not in the record, it didn't happen. But the Texas Rules of Appellate Procedure provide a little-used tool to correct or clarify the record after the fact. Although opportunities to use this tool may be somewhat limited, it can be a real lifesaver in the right circumstance.
Texas Rule of Appellate Procedure 33.2 outlines the procedure for submitting a "formal bill of exception" to the trial court. Basically, a formal bill of exception is a recital of something that happened in court but is not reflected in the record for some reason. For example, if the court reporter does not transcribe a bench conference, a formal bill of exception could be used to memorialize what was said and any rulings that were made.
A party making the formal bill of exception submits it in writing to the court, and if the court agrees with the recital of events, the court signs the bill and it is filed in the papers of the case. The rule also provides procedures that must be followed if the court disagrees with the recitals in the formal bill. Once the bill is signed and filed, it has the same effect as if the events had been transcribed. And, significantly, a formal bill of exception can be filed up to 30 days after the notice of appeal is filed.
A recent case from the Texarkana Court of Appeals illustrates one use for a formal bill of exception. City of Lufkin v. AKJ Properties, Inc., No. 06-12-00005-CV, 2012 WL 2393087 (Tex. App.—Texarkana June 26, 2012, no pet.). At a pretrial jury charge conference, the City had requested in writing that several instructions be included in the charge. The court said it was not inclined to submit the requested instructions. The City did not renew its request at the formal charge conference.
In a post-trial bill of exception under Rule 33.2, the City asked the court to clarify that it refused to submit the instructions that the City had requested at the pretrial conference. After a hearing, the trial court filed an order stating: "The above request was presented to the court after the close of the evidence and before submission of the court's charge to the jury in the presence of the court and opposing counsel and the court now [sic] hereby and in all things refused." The court of appeals found that this was sufficient to preserve error on the refusal to submit the requested instructions.
To really understand the power of a formal bill of exception, compare the result in City of Lufkin with two other cases that I posted on earlier this year. First, I posted about Jones v. Cortes, in which the Fort Worth Court of Appeals held that error was not preserved by requesting an instruction in a pre-trial proposed jury charge. A formal bill of exception might have been useful in Jones to ask the trial court to confirm that it considered and refused to submit the requested instruction.
Second, I posted about Jelinek v. Casas, in which the Corpus Christi Court of Appeals held that error was waived because the written request for an instruction could not be found in the clerk's record, even though the reporter's record indicated that a written request was submitted. A post-trial formal bill of exception could have been used to get a copy of the written request in the record and thereby preserve error.
Of course, a formal bill of exception is only useful to make a record of something that actually happened but is not in the record for some reason. It cannot be used to make a record of something that did not happen. But in the right circumstances, it can be an important preservation tool in a trial or appellate lawyer's tool kit.
I would be interested to hear if any of our readers have used a formal bill of exception to clarify or supplement the record. If you can, please share in the comments any wisdom you might have about using formal bills of exception.
-- Rich Phillips, Thompson & Knight
Comments