I. NEW RULES OF PROCEDURE
A. THE NEW TEXAS RULES OF APPELLATE PROCEDURE: New Traps for the Unwary
The Texas Rules of Appellate Procedure have been completely rewritten and are in effect as of September 1, 1997. Not only have substantive changes been made, but the new rules have a new look. In addition to a reorganization, a new numbering system was instituted with the rules numbered consecutively from 1 to 79 and subdivisions of the rules denoted by decimal points. This paper is intended only as a brief overview of the most significant changes.
1. PERFECTING THE APPEAL
All appeals, except in criminal death penalty cases, are perfected by filing a written notice of appeal with the trial clerk. TRAP 25.1(a); 2.2(a), (b)(1). The new rule eliminates the former practice of posting a cost bond, making a cash deposit, or filing an affidavit in lieu thereof in civil cases.
Any party who seeks to alter the trial court's judgment or appealable order must file a notice of appeal. TRAP 25.1(c); 25.2(a). An appellee may no longer rely on a cross-point to request an alteration of the trial court judgment; the party must perfect an independent appeal. TRAP 25.1(c).
Under the old rules, you had to perfect your own appeal by filing a "cross-appeal" if your adversary filed a notice of limitation of appeal. See Donwerth v. Preston II Chrysler-Dodge, Inc., 775 S.W.2d 634, 639 (Tex. 1989). The new rules eliminate the notice of limitation of appeal in civil cases, and you must always perfect your own appeal if you seek to alter the trial court's judgment.
In general, the new rules do not alter the times for perfecting the appeal in civil or criminal cases. TRAP 26.1, 26.2. The rules clarify the former procedure for extending the appellate timetable by filing a post-judgment motion. The 90-day time period in civil cases applies if any party timely files a motion for new trial, a motion to modify, a motion to reinstate under TRCP 165a, or a request for findings if the TRCP require findings, or, if not required, if the appellate court could properly consider findings. TRAP 26.1(a). In civil cases, if any party files a timely notice of appeal, any other party may file a notice either within the applicable time period or within 14 days after the first notice is filed, whichever is later. TRAP 26.1(d).
The notice of appeal in civil cases must identify the trial court and state the number and style of the case, the date of the judgment or order from which the appeal is taken, the name of each party filing the notice, the court to which appeal is taken, and that the appellant desires to appeal. In addition, if the appeal is accelerated, the notice must so state. TRAP 25.1(d).
2. DOCKETING STATEMENT (CIVIL APPEALS)
The appellant must file a docketing statement in the court of appeals when the appeal is perfected, but any party may file a supplemental or corrected statement. TRAP 32.1; 32.3. Although the statement is an administrative tool, not a jurisdictional instrument, TRAP 32.4, the appellant's failure to file it could cause the court of appeals to dismiss the appeal. TRAP 42.3(c).
The docketing statement must identify the trial court, parties, and counsel. It must contain the following jurisdictional information: the date the trial court's judgment was signed; the dates the notice of appeal and certain post-trial motions and other instruments were filed in the trial court. TRAP 32.1(b), (c), (d), (k).
The docketing statement must also contain a general description of the nature of the case, whether the appeal is accelerated, whether any temporary or ancillary relief is sought, and whether a supersedeas bond has been or will be filed. TRAP 32.1(f), (g), (j), (l).
In addition, appellant must state whether a reporter's record (formerly known as the statement of facts) has been or will be ordered, and the name of the reporter. TRAP 32.1(h), (i).
Forms for the new docketing statements are available from the Fourteenth Court Clerk's office. In addition, you may purchase from the clerk for $1.00 a diskette containing the form in Wordperfect 5.1, 6.1, and 7.0.
3. RESTRICTED APPEALS
The new rules repeal the procedure for appeal by writ of error in civil cases and replace it with the "restricted appeal". The new procedure is similar to the former, and statutes pertaining to writ of error appeals also apply to restricted appeals.
The appealing party must perfect a restricted appeal within six months after the judgment or order is signed. TRAP 26.1(c). The restricted appeal is available to a party who did not participate in the trial or hearing, but who is affected by the judgment, and who did not file a post judgment motion, request for findings or notice of appeal. TRAP 25.1(d)(7).
The new rule alters what constitutes "participation." Under former rule 45, parties who "did not participate in the actual trial of the case in the trial court" were permitted to proceed by appeal by writ of error. In Texaco v. Central Power & Light Co., 925 S.W.2d 586, 589-90 (Tex. 1996), the Texas Supreme Court held that this phrase meant that the party did not participate in the decision-making event that resulted in the judgment adjudicating the party's rights. The new rule codifies this holding and also extends "participation" to include timely filing a postjudgment motion, request for findings of fact and conclusions of law, or filing a notice of appeal within the time permitted by Rule 26.1(a). This extension overrules several cases. See, e.g., Lawyers Lloyds of Texas v. Webb, 152 S.W.2d 1096, 1098 (Tex. 1941) (filing motion for new trial not participation); Noriega v. Cueves, 879 S.W.2d 192, 193 (Tex. App.--Houston [14th Dist.] 1994, writ denied) (filing motion for new trial or motion to reinstate not participation).
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Updated: 13-Jan-2010
