In The 

Court of Appeals 

Seventh District of Texas at Amarillo

No. 07-14-00046-CV 

MARCUS A. TAVIRA, APPELLANT 

 

V. 

 

TEXAS DEPT. OF CRIMINAL JUSTICE AND 

T & J WILLIS EQUIPMENT RENTAL AND SALES, INC., APPELLEES 

 

On Appeal from the 100th District Court 

Childress County, Texas 

Trial Court No. 10163, Honorable Stuart Messer, Presiding 

 

April 23, 2014 

 

ORDER 

 

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. 

The clerk’s record in this appeal has been filed. On April 8, 2014, the Court 

issued an order by letter seeking information bearing on its jurisdiction. Appellees

Texas Department of Criminal Justice and T & J Willis Equipment Rental and Sales, 

Inc., and appellant Marcos Anthony Tavira responded to our April 8 order.1 After further 

 

1

It appears J.L.G. Industries, Inc. a/k/a JLG Industries, Inc., remains a defendant 

in trial court cause number 10163. This entity has taken no action here or in the trial 

court relevant to the matters addressed by this order.
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considering the clerk’s record and those parties’ responses, the Court has identified 

three issues requiring the parties’ prompt attention.

First, with its response TDCJ provided a copy of a signed November 12, 2013 

order granting its plea to the jurisdiction and with its response Willis provided a copy of 

a signed November 14, 2013 order granting a summary judgment in its favor. But the 

orders do not appear in the clerk’s record. Despite inquiries, the Court has no indication 

either order was presented for filing. 

An appellate court may generally not consider matters outside the appellate 

record. In the Interest of M.S., 115 S.W.3d 534, 546 (Tex. 2003); Kohutek v. Kohutek, 

No. 07-10-0143-CV, 2011 Tex. App. LEXIS 7585, at *14 n.8 (Tex. App.—Amarillo Sept. 

16, 2011, no pet.) (mem. op.). While we may consider documents from outside the 

record for the limited purpose of determining our own jurisdiction, TEX. GOV’T CODE ANN.

§ 22.220(c) (West Supp. 2013), we decline to do so here because of the absence of 

affidavits and because of the availability of the procedure under appellate rule 34.5(e). 

TEX. R. APP. P. 34.5(e). 

Pursuant to appellate rule 34.5(e), the Court directs the parties to confer among 

themselves, and with the trial court if necessary, to determine whether the original 

November 12 and November 14 orders are lost. If either order is lost, the parties shall 

further confer concerning the accuracy of the copies produced by TDCJ and Willis. If 

the parties agree to the accuracy of the copies, they shall so stipulate in writing, and file 

an original stipulation with copies of the orders attached in trial court cause numbers 

10163 and 10357. If the parties are unable to agree as to either order, the trial court 
3

shall conduct a hearing to determine what constitutes an accurate copy of each order. 

It shall then render and sign a written order stating the correct substance of each order. 

See TEX. R. APP. P. 34.5(e). Whether by agreement, resulting in a stipulation with 

attachments, or by trial court proceeding, resulting in a signed order, the proper 

instrument shall be included in a supplemental clerk’s record in cause number 10163 

and filed in appellate case number 07-14-00046-CV. The supplemental clerk’s record 

shall be filed as promptly as feasible, and in no event later than 20 days from the date of 

this order. 

Second, on January 29, 2014, the trial court severed Mr. Tavira’s case against 

Willis into cause number 10357. Although Mr. Tavira seeks to appeal the grant of 

summary judgment in favor of Willis, a record from cause number 10357 was not 

brought forward on appeal. The appeal of cause number 10357 will henceforth bear 

appellate case number 07-14-00157-CV. In addition to the items specified in the trial 

court’s January 29 severance order, the record brought forward for filing in case number 

07-14-00157-CV shall include, Mr. Tavira’s December 13, 2013 notice of appeal, the 

previously mentioned agreement or order under appellate rule 34.5(e), and any other 

item requested by a party. See TEX. R. APP. P. 34.5(b). Mr. Tavira shall make payment 

arrangements acceptable with the clerk for preparation of the record in cause number 

10357 within ten days of the date of this order. The clerk shall file the record from 

cause number 10357 in appellate case number 07-14-00157-CV within twenty days of 

the date a stipulation or order under appellate rule 34.5(e) is filed. 

Third, if, as appears, the trial court signed the order granting TDCJ’s plea to the 

jurisdiction on November 12, 2013, Mr. Tavira’s notice of interlocutory appeal appears 
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untimely. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(8) (West Supp. 2013) 

(appeal from interlocutory order granting or denying plea to the jurisdiction); TEX. R.

APP. P. 28.1(a) (accelerated appeal of interlocutory order); TEX. R. APP. P. 26.1(b) 

(notice of appeal in accelerated appeal must be filed within twenty days of appealable 

order). However, the fifteen-day extension authorized by appellate rule 26.3 also may 

apply. TEX. R. APP. P. 26.3. If so, a motion for extension of time is implied. Verburgt v. 

Dorner, 959 S.W.2d 615, 617 (Tex. 1997). If Mr. Tavira is relying on the fifteen-day 

extension under rule 26.3, he must file a reasonable explanation of his need for an 

extension of time. Woodard v. Higgins, 140 S.W.3d 462, 462 (Tex. App.—Amarillo 

2004, no pet.); TEX. R. APP. P. 10.5(b). The written explanation must be filed within ten 

days of the date the previously-referenced stipulation or trial court order under appellate 

rule 34.5(e) is filed with the clerk of the trial court. Mr. Tavira’s failure to comply will

result in dismissal of his interlocutory appeal in case number 07-14-00046-CV. TEX. R.

APP. P. 42.3(a) and (c).

The abatement created by the Court’s order of April 8, 2014 is dissolved.

It is so ordered.

Per Curiam