4. THE RECORD ON APPEAL
The new rules institute new terminology for referring to the record. The transcript is now called the "clerk's record" and the statement of facts is called the "reporter's record." TRAP 34.1. Only one appellate record will be filed in a case, even if more than one notice of appeal is filed. TRAP 34.1.
The parties are no longer responsible for filing the record. The trial court clerk is responsible for timely filing the clerk's record and the court reporter or recorder is responsible for timely filing the reporter's record. TRAP 35.3. The record is due within 60 days after the judgment is signed, or within 120 days if a timely motion for new trial, motion to modify the judgment, or request for findings was filed. TRAP 35.1. The record is due within 10 days in an accelerated appeal, and within 30 days in a restricted appeal, after the notice of appeal is filed. TRAP 35.1. The parties are no longer required to request extensions to file the record.
As in the old rules, the parties may file an agreed record. See TRAP 34.2. The new rules provide that the agreed record will be presumed to contain all evidence and filings relevant to the appeal. TRAP 34.2.
The filing of the notice of appeal triggers the clerk's duty to file the record, but the appellant must pay, or make arrangements with the clerk to pay, for the record before the clerk has an obligation to prepare it. TRAP 35.3(a)(2). This is a change in the law. Formerly, the clerk could not refuse to prepare the record until payment was made because the cost bond secured the cost of preparing the record. See Click v. Tyra, 867 S.W.2d 406, 407-08 (Tex. App.--Houston [14th Dist.] 1993, orig. proceeding).
The reporter's record (formerly the statement of facts) still must be requested "at or before the time for perfecting the appeal." TRAP 34.6(b)(1). Appellant must pay for the reporter's record, or make satisfactory arrangements with the reporter to pay the fee. TRAP 35.3(b)(3).
As in the old rules, appellant may request a partial record. TRAP 34.6(c). A statement of the points or issues to be presented on appeal is required. TRAP 34.6(c)(1). The new rule clarifies that the appellate court must presume that the partial reporter's record constitutes the entire record for purposes of reviewing the stated points or issues. This presumption applies even if the complaint concerns the legal or factual insufficiency of the evidence. TRAP 34.6(c)(4). This change apparently overrules a number of cases. See, e.g., Schafer v. Conner, 813 S.W.2d 154, 155 (Tex. 1991).
Supplementation of the record is simple. If anything relevant is omitted from the record, the trial court, appellate court, or any party may by letter direct the trial court clerk or reporter to prepare, certify and file a supplement, which is then part of the appellate record. TRAP 34.6(d).
If an item designated for inclusion in the clerk's record has been lost or destroyed, the parties may agree in writing to substitute a copy. If the parties cannot agree, the trial court must determine what constitutes an accurate copy of the missing item and order it to be included in the clerk's record or a supplement. TRAP 34.5(e).
If: (1) a significant exhibit or a significant portion of the court reporter's notes and records are lost or destroyed; (2) and the missing portion is necessary to the appeal's resolution; and (3) the parties cannot agree on a complete reporter's record, the appellant is entitled to a new trial. TRAP 34.6(f). This is a change in the law. Under the old rules, the appellant was entitled to a new trial if the statement of facts, or a part of it, was lost or destroyed, without regard to whether the missing part was material to the appeal. See former rule 50(e).
5. BRIEFING IN THE COURT OF APPEALS
The briefing rule has been rewritten, but the content has not been substantially changed. Under the new rules, a party may present either points of error or issues presented. TRAP 38.1(e). The brief is now required to have an appendix containing, among other matters, a copy of the trial court's judgment and the jury charge and verdict or findings of fact and conclusions of law. TRAP 38.1(j).
The page limit for the appellant's and appellee's brief remains at 50 pages. A reply brief may not exceed 25 pages. The aggregate number of pages of the briefs filed by a party, however, must not exceed 90 pages. TRAP 38.4. The new rules also specify margin and typeface size. TRAP 9.4(c). Briefs are required to be bound so they will lie flat when open, and the cover may not be red, black or dark blue so that the court's file stamp will be visible. TRAP 9.4(f).
In an ordinary appeal, the appellant's brief if due 30 days after the clerk's record is filed or 30 days after the reporter's record is filed, whichever is later. TRAP 38.6(a). The appellee's brief is now due 30 days after the appellant's brief is filed, rather than 25 days. TRAP 38.6(b). The appellant's reply brief is due 20 days after the date the appellee's brief is filed. TRAP 38.6(c). This is a new deadline; the former rules did not contain a time period for filing a reply brief.
6. ORIGINAL PROCEEDINGS
All original proceedings in the Courts of Appeals and in the Texas Supreme Court are governed by TRAP 52 and are treated alike.
There are two major changes. First, a motion for leave is no longer required. Second, the style has changed. Formerly, the case was styled as the Relator v. the Respondent, who was usually a judge or court of appeals. The new rule provides that the petition will be styled "In re [name of relator]". TRAP 52.1.
The new rules specifically allow a motion for rehearing in an original proceeding. TRAP 52.9. The motion may not be longer than 15 pages. The former rule neither permitted nor prohibited a motion for rehearing.
Updated: 14-Sep-2006
