Opinion issued December 2, 2021

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-21-00064-CV

———————————

DEBRA ROBERTS AS ATTORNEY IN FACT FOR JAMES A. ROBERTS, 

Appellant

V.

THE CITY OF TEXAS CITY, TEXAS, Appellee

On Appeal from the 122nd District Court

Galveston County, Texas

Trial Court Case No. 20-CV-1013

MEMORANDUM OPINION

Appellant, Debra Roberts, as Attorney in Fact for James A. Roberts, 

challenges the trial court’s order granting the motion to dismiss of appellee, The City 

of Texas City, Texas (the “City”), in Roberts’ suit against the City under Texas Local 
2

Government Code section 214.0012.

1

 In two issues, Roberts contends that the trial 

court erred in granting the City’s motion to dismiss.

We affirm.

On April 30, 2021, Roberts filed her “Appellant’s Opening Brief” with this 

Court. On May 18, 2021, the City filed its appellee’s brief, asserting, in part, that 

Roberts’ appellant’s brief failed to comply with Texas Rule of Appellate Procedure 

38.1. See TEX. APP. P. 38.1 (governing contents and organization of appellant’s 

brief). Specifically, the City asserted that Roberts’ appellant’s brief, “while 

containing supposed factual recitations and argument, d[id] not once tie those 

assertions and arguments to the clerk’s record” and “[a]dequate briefing includes 

proper citation to the record and to authorities.” “[A] brief that does not contain any 

citations . . . to the record for a given issue waives that issue” on appeal. The City 

requested that we either conclude that Roberts had waived her appellate issues by 

failing to comply with Texas Rule of Appellate Procedure 38.1 or dismiss Roberts’ 

appeal “[b]ecause of the . . . deficiencies . . . in [her] appellant’s brief.”

On July 27, 2021, the Clerk of this Court notified Roberts that her 

“Appellant’s Opening Brief” did not comply with the requirements of Texas Rule of 

1 See TEX. LOC. GOV’T CODE ANN. § 214.0012 (“Any owner, lienholder, or 

mortgagee of record of property jointly or severally aggrieved by an order of a 

municipality issued under [Texas Local Government Code] [s]ection 214.001 may 

file in district court a verified petition setting forth that the decision is illegal, in 

whole or in part, and specifying the grounds of the illegality.”).
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Appellate Procedure 38.1 because it failed to “contain a statement of the case 

‘supported by record references,’” “contain a statement of facts ‘supported by record 

references,’” and “contain ‘a clear and concise argument for the contentions made, 

with appropriate citations . . . to the record.’” See TEX. R. APP. P. 38.1(d), (g), (i). 

The Clerk directed Roberts to file an amended brief that complied with rule 38.1 

within twenty-one days of the notice and informed Roberts that, if she failed to do 

so, we could dismiss her appeal. See TEX. R. APP. P. 38.8(a), 38.9(a), 42.3(b), (c), 

43.2(f). On August 23, 2021, Roberts filed an amended “Appellant’s Opening 

Brief.”

“An appellate brief is ‘meant to acquaint the court with the issues in a case 

and to present argument that will enable the court to decide the case.’” Schied v. 

Merritt, No. 01-15-00466-CV, 2016 WL 3751619, at *2 (Tex. App.—Houston [1st 

Dist.] July 12, 2016, no pet.) (mem. op.) (internal quotations omitted). The Texas 

Rules of Appellate Procedure control the required contents and organization of an 

appellant’s brief. Id.; see TEX. R. APP. P. 38.1. They contain “specific requirements 

for briefing that require, among other things, that an appellant provide a statement 

of facts, which includes references to the record, and an argument that is clear and 

concise with appropriate citations to authorities and the record.” Tyurin v. Hirsch & 

Westheimer, P.C., No. 01-17-00014-CV, 2017 WL 4682191, at *1 (Tex. App.—

Houston [1st Dist.] Oct. 19, 2017, no pet.) (mem. op.) (internal quotations omitted); 
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Lemons v. Garmond, No. 01-15-00570-CV, 2016 WL 4701443, at *1 (Tex. App.—

Houston [1st Dist.] Sept. 8, 2016, pet. denied) (mem. op.); see also TEX. R. APP. P.

38.1(g) (appellant’s brief’s statement of facts “must be supported by record 

references”), (i) (appellant’s brief “must contain a clear and concise argument for 

the contentions made, with appropriate citations . . . to the record”); Bolling v. 

Farmers Branch Indep. Sch. Dist., 315 S.W.3d 893, 896 (Tex. App.—Dallas 2010, 

no pet.) (“Importantly, statements of fact must be supported by direct references to 

the record that are precise in locating the facts asserted.”). An appellant’s brief must 

also contain a statement of the case that is “supported by record references.” TEX.

R. APP. P. 38.1(d). In short, “[a]dequate briefing [requires] proper citation to the 

record,” and “[i]f record references are not made or are inaccurate, misstated, or 

misleading, the brief fails.” Walker v. Davison, No. 01-18-00431-CV, 2019 WL 

922184, at *2 (Tex. App.—Houston [1st Dist.] Feb. 26, 2019, no pet.) (mem. op.); 

Bolling, 315 S.W.3d at 896; see also Afshang v. Mortazavi, No. 01-16-00171-CV, 

2017 WL 711743, at *2 (Tex. App.—Houston [1st Dist.] Feb. 23, 2017, no pet.) 

(mem. op.).

Additionally, when appellate issues are not supported by citation to the record, 

nothing is presented for an appellate court’s review. Hernandez v. Hernandez, 318 

S.W.3d 464, 466 (Tex. App.—El Paso 2010, no pet.); Nguyen v. Kosnoski, 93 

S.W.3d 186, 188 (Tex. App.—Houston [14th Dist.] 2002, no pet.); see also Walker, 
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2019 WL 922184, at *2–3; Trammell v. Frost Nat’l Bank, No. 01-05-00216-CV, 

2006 WL 3513596, at *1–2 (Tex. App.—Houston [1st Dist.] Dec. 7, 2006, no pet.) 

(mem. op.) (brief that does not contain citations to record for given issue waives that 

issue). This is because an appellate court has no duty—or even right—to perform 

an independent review of the record to determine whether there was error. Reid v. 

Worede, No. 01-18-01010-CV, 2020 WL 3393074, at *1 (Tex. App.—Houston [1st 

Dist.] June 18, 2020, no pet.) (mem. op.) (noting appellate court’s role as neutral 

adjudicator prevents it from performing independent review of record); Walker, 

2019 WL 922184, at *2; Flores v. United Freedom Assocs., Inc., 314 S.W.3d 113,

115–16 (Tex. App.—El Paso 2010, no pet.); see also Bolling, 315 S.W.3d at 895 

(“Only when we are provided with proper briefing may we discharge our 

responsibility to review the appeal and make a decision that disposes of the appeal 

one way or the other.”). If an appellate court were to do so, it would be abandoning 

its role as judge and assuming the role of advocate for a party. See Bolling, 315 

S.W.3d at 895 (“We are not responsible for searching the record for facts that may 

be favorable to a party’s position.”).

Although Roberts was given an opportunity to comply with the Texas Rules 

of Appellate Procedure, she failed to do so. See Holz v. United States of Am. Corp., 

No. 05-13-01241-CV, 2014 WL 6555024, at *1–2 (Tex. App.—Dallas Oct. 23, 

2014, no pet.) (mem. op.) (appellant given opportunity to cure defects in his briefing, 
6

but he failed to do so). Roberts’ amended “Appellant’s Opening Brief” still does 

not contain a statement of the case “supported by record references,” a statement of 

facts “supported by record references,” and “a clear and concise argument for the 

contentions made, with appropriate citations . . . to the record.” See TEX. R. APP. P.

38.1(d), (g), (i). Instead, Roberts, in her amended brief, states that “no trial record 

exists in the matter at hand.” But see TEX. R. APP. P. 34.1 (“The appellate record 

consists of the clerk’s record and, if necessary to the appeal, the reporter’s record.”). 

Yet a clerk’s record was filed in this appeal on February 22, 2021 and a supplemental 

clerk’s record was filed on May 13, 2021—both of which occurred before Roberts 

filed her amended brief. See TEX. R. APP. P. 34.5 (“Clerk’s Record”). Although 

Roberts attempts to direct this Court to exhibits purportedly attached to her amended 

brief in lieu of record citations, the attachment of documents as exhibits or 

appendices to an appellate brief does not constitute a formal inclusion of such 

documents in the record for appeal. See McCann v. Spencer Plantation Invs., Ltd., 

No. 01-16-00098-CV, 2017 WL 769895, at *4 n.5 (Tex. App.—Houston [1st Dist.] 

Feb. 28, 2017, pet. denied) (mem. op.); see also WorldPeace v. Comm’n for Lawyer 

Discipline, 183 S.W.3d 451, 465 n.23 (Tex. App.—Houston [14th Dist.] 2005, pet. 

denied) (“[W]e cannot consider documents attached as appendices to briefs . . . .”). 

And Roberts failed to actually attach any purported exhibits to her amended brief 

when she filed it with the Court. In sum, Roberts has not corrected the deficiencies 
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in her “Appellant’s Opening Brief” as directed by this Court and has not filed a brief 

that complies with Texas Rule of Appellate Procedure 38.1. See, e.g., Holz, 2014 

WL 6555024, at *1–2.

Because Roberts’ amended “Appellant’s Opening Brief” still does not comply

with the Texas Rules of Appellate Procedure, we hold that she has waived review of 

her two appellate issues.2 See, e.g., Reid, 2020 WL 3393074, at *1 (because 

appellant did not comply with Texas Rule of Appellate Procedure 38.1, holding she 

“waived all claims of error”); Walker, 2019 WL 922184, at *2–3 (because 

appellant’s brief did not contain any citations to record in support of appellant’s 

contentions, holding his appellate issues were waived); Afshang, 2017 WL 711743, 

at *1–2 (because appellant, in his brief, did not provide any citations to record to 

support his contentions, holding “his complaints [were] waived”); Holz, 2014 WL 

6555024, at *1–2 (because appellant’s amended brief did not contain citations to 

2 Alternatively, when, as here, an appellant files a brief that does not comply with the 

Texas Rules of Appellate Procedure and then files an amended brief that also does 

not comply, “the court may strike the brief, prohibit the [appellant] from filing 

another, and proceed as if the [appellant] had failed to file a brief.” TEX. R. APP. P.

38.9(a); see also Tyurin v. Capital One, N.A., No. 01-16-00810-CV, 2018 WL 

2925688, at *2 (Tex. App.—Houston [1st Dist.] June 12, 2018, no pet.) (mem. op.); 

Tyurin v. Hirsch & Westheimer, P.C., No. 01-17-00014-CV, 2017 WL 4682191, at 

*2 (Tex. App.—Houston [1st Dist.] Oct. 19, 2017, no pet.) (mem. op.). And when 

an appellant fails to file a brief, we may dismiss her appeal for want of prosecution

or, when an appellee’s brief has been filed, we can regard that brief as correctly 

presenting the case and affirm the trial court’s judgment upon that brief without 

examining the record. See TEX. R. APP. P. 38.8(a)(1), (3), 42.3, 43.2(f); Capital

One, N.A., 2018 WL 2925688, at *2; Hirsch & Westheimer, 2017 WL 4682191, at 

*2 & n.2.
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record, holding appellant waived his complaint on appeal and affirming trial court’s 

order); see also Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 

284–85 (Tex. 1994) (discussing “long-standing rule” that inadequate briefing waives 

issues on appeal).

We affirm the order of the trial court.

Julie Countiss

Justice

Panel consists of Justices Goodman, Landau, and Countiss.