Local Practices
at the 14th Court of Appeals
Practicing at the Fourteenth Court of Appeals
Under the Revised Rules of Appellate Procedure
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).
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.
7. APPEALING TO THE SUPREME COURT
Supreme Court practice has changed dramatically. The application for writ of error is replaced by a 15-page petition for review focused predominantly, if not exclusively, on why the Court should exercise discretion to hear the case. TRAP. 53.2(i). The argument should specifically refer to the following factors:
TRAP 56.1(a).
The motion for rehearing is no longer a jurisdictional prerequisite to Supreme Court review and is not required to preserve error. TRAP 49.9.
The petition for review must be filed in the Supreme Court rather than the court of appeals. TRAP 53.7(a). The petition must be filed within 45 days after the date of the court of appeals judgment or within 45 days after the date of the court of appeals' last ruling on all timely filed motions for rehearing. TRAP 53.7(a). Under the old rule, the application for writ of error had to be filed within 30 days after the ruling on all timely filed motions for rehearing. See former rule 130(b).
Under the new rules, any party may file a response, but it is not mandatory. TRAP 53.3 No petition will be granted without a response, however.
The court of appeals' record is not sent to the Supreme Court unless it is requested. TRAP 54.2(a). The Supreme Court may request that the record be filed with or without granting the petition for review. TRAP 54.1.
A brief is not filed unless requested by the court. The court may request briefs with or without granting review. TRAP 55.1. If a petitioner files a brief, then any other party may file a brief in response. TRAP 55.3. Briefs and responses must not exceed 50 pages, and the petitioner may file a reply that does not exceed 25 pages. TRAP 55.4 and 55.6.
8. SANCTIONS
Formerly, a party might be sanctioned if the appeal was "taken for delay and without sufficient cause." See former rules 84 & 182(b). The court of appeals was limited to imposing a sanction of ten percent of the judgment or ten times costs. See former rule 84. The Supreme Court could impose any amount of damages. See former rule 182(b). The sanction was awarded to "each prevailing appellee." See former rule 84.
TRAPS 45 and 62 govern sanctions in the courts of appeal and the Supreme Court. Under the rules, the court can award a sanction if the "appeal is frivolous." There is no limit on the amount of the sanction and it is awarded to "each prevailing party." The new rules impose a requirement of "notice and a reasonable opportunity for response." TRAPS 45 & 62.
9. CRIMINAL APPEALS
The new rule regarding perfection of appeal applies to appeals by the State and incorporates the requirements of article 44.01 of the Code of Criminal Procedure. TRAP 25.2(b)(2). Where the defendant pleaded guilty or nolo contendere to a felony offense, and the punishment assessed does not exceed the punishment recommended by the State, the notice of appeal must reflect that (1) the appeal is for a jurisdictional defect; (2) the appeal is based on a written motion ruled on before trial; or (3) the trial court granted permission to appeal. TRAP 25.2(b)(3).
Upon perfecting the appeal, the appellant must file a docketing statement in the court of appeals including extensive information. TRAP 32.2. Forms and diskettes are available from the Fourteenth Court clerk's office.
The court of appeals has 60 days after the Petition for Discretionary Review (PDR) has been filed with the clerk of the court of appeals to reconsider, correct or modify its opinion or judgment. TRAP 50.
The Court of Criminal Appeals may extend the time to file a petition for discretionary review if a party files a proper motion no later than 15 days after the last day for filing the petition.
The petition for discretionary review is limited to 15 pages and the reply to 8 pages. TRAP 68.5.
Oral argument is now possible when rehearing is granted. TRAP 79.4. If rehearing is granted and an additional opinion is delivered, either party can file a further motion for rehearing. TRAP 79.5.
B. LEGISLATIVE "AMENDMENTS"
The Legislature amended section 51.014 of the Civil Practice and Remedies Code to add several appealable interlocutory orders. These new appealable orders include: (1) the granting or denying of a special appearance under Rule of Civil Procedure 120a (except in a suit brought under the Family Code); and (2) the granting or denying of a plea to the jurisdiction by a governmental unit as defined in section 101.001. An appeal stays commencement of the trial in the trial court pending resolution of the appeal.
The amendments apply to actions commenced on or after the effective date of June 20, 1997. They also apply to actions commenced before June 20, 1997, but pending on the effective date and in which "the trial, or any new trial or retrial following motion, or appeal, or otherwise, begins on or after that date."
The Legislature added section 75.551 to the Government Code to provide a mechanism for parties to object to judges assigned to an appellate court. The amendment prevents a judge assigned to an appellate court from hearing a civil case if a party files a timely objection to the assignment. Each party is entitled to only one objection for that case in the appellate court. In addition, a former judge who is not a retired judge may not sit in an appellate case if either party objects to the judge. This legislation was effective September 1, 1997.
C. AMENDMENT TO Tex. R. Civ. P. 166a ON SUMMARY JUDGMENTS
1. The "No Evidence" Summary Judgment
As of September 1, 1997, the Texas Supreme Court adopted a significant change to Texas state court summary judgment practice by amending Rule 166a to permit no-evidence summary judgments. The effect of this change means that the party without the burden of proof at trial (usually the defendant), without having to produce any evidence at all, can move for summary judgment on the basis that the respondent (usually the plaintiff) has no evidence to support an element of its claim or defense. The mere filing of the motion shifts the burden to the respondent to come forward with enough evidence to take the case to a jury. If the respondent does not, the court must grant the motion under the new rule. Tex. R. Civ. P. 166a(i).
The new sub-section (i) of Rule 166a reads as follows:
(i) No-Evidence Motion. After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. The motion must state the elements as to which there is no evidence. The court must
grant the motion unless the respondent produces summary judgment evidence
raising a genuine issue of material fact.
Tex. R. Civ. P. 166a(i).
In addition to the new rule, the official "Notes and Comments" to the rule, unlike other comments, have the force of law. These Comments are as follows:
Comment to 1997 change: This comment is intended to inform the construction and application of the rule. Paragraph (i) authorizes a motion for summary judgment based on the assertion that, after adequate opportunity for discovery, there is no evidence to support one or more specified elements of an adverse party's claim or defense. A discovery period set by pretrial order should be adequate opportunity for discovery unless there is a showing to the contrary, and ordinarily a motion under paragraph (i) would be permitted after the period but not before. The motion must be specific in challenging the evidentiary support for an element of a claim or defense; paragraph (i) does not authorize conclusory motions or general no-evidence challenges to an opponent's case. Paragraph (i) does not apply to ordinary motions for summary judgment under paragraphs (a) or (b), in which the movant must prove it is entitled to judgment by establishing each element of its own claim or defense as a matter of law or by negating an element of the respondent's claim or defense as a matter of law. To defeat a motion made under paragraph (i), the respondent is not required to marshal its proof; its response need only point out evidence that raises a fact issue on the challenged elements. The existing rules continue to govern the general requirements of summary judgment practice. A motion under paragraph (i) is subject to sanctions provided by existing law (Tex. Civ. Prac. & Rem. Code 9.001-10.006) and rules (Tex. R. Civ. P. 13). The denial of a motion under paragraph (i) is no more reviewable by appeal or mandamus than the denial of a motion under paragraph (c).
No-evidence summary judgments have been part of federal practice since Celotex v. Catrett, 477 U.S. 317 (1986). Simply showing the existence of a fact issue will not suffice to defeat a "no evidence" summary judgment; there must be a "genuine issue" regarding a "material fact." The U.S. Supreme Court discussed the meaning of these terms in Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 585-88 (1986), and Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-52 (1986).
A key difference between the federal practice and the new state rule concerns the type of evidence sufficient to raise a fact issue. The federal practice does not require, as does the state rule, that the respondent come forward with summary judgment evidence. Instead, the respondent may provide material that may be reduced to summary judgment evidence. It appears that in state court, a respondent must come forward with deposition excerpts, affidavits, the opponent's answers to interrogatories and requests for admissions, stipulations, certified public records and/or authenticated documents. Matters such as unsworn witness statements, experts' reports or unauthenticated documents produced in discovery would appear not to be considered "evidence" that can raise a fact issue.
Parties cannot wait until trial to develop an expert's qualifications. See United Blood Services v. Longoria, 938 S.W.2d 29 (Tex. 1997). The respondent to a "no evidence" motion will have to meet the standard for determining whether the expert opinion is scientifically valid as set forth in DuPont v. Robinson, 925 S.W.2d 549 (Tex. 1995). This may require extensive affidavits including publications and other matters to establish the expert's qualifications. You may have to depose your own expert extensively about the basis for his or her opinions and the scientific foundation for them.
A significant problem area in the new rule concerns the meaning "adequate time for discovery." Although the Comment specifies that an adequate time for discovery will generally be the discovery period set by the court, there is little other guidance. The Comment makes no mention of how to proceed in the absence of a pretrial order. When a respondent contends it has not had adequate time for discovery, it must file an affidavit explaining the need for further discovery or a verified motion for continuance. See Tenneco Inc. v. Enterprise Products Co., 925 S.W.2d 640 (Tex. 1996).
The rule promulgated by the Texas Supreme Court differs from the rule proposed by the Supreme Court Advisory Committee. In a dissent to the adoption of the new rule, Justice Baker noted his agreement with the basic concept of a no-evidence motion for summary judgment but expressed concerns that the rule "eliminates the balance, fairness and safeguards" provided by the rule proposed by the Advisory Committee.
Under the committee's language, a trial court could issue a pretrial order that could set the date after which no-evidence summary judgment motions could be filed. The committee recommended that the motion be met with either summary judgment evidence or "discovery product or other material that can be reduced to summary judgment evidence." The Court's failure to adopt this recommendation has led to concerns that discovery costs will be increased because attorneys will be required to use depositions to develop admissible evidence and prove up unsworn statements and reports. Additional affidavits and requested admissions may also be required to authenticate documents.
The Supreme Court omitted the committee's recommendation that there be a certificate by the movant attorney that he or she had reviewed the discovery and that, in the attorney's opinion, the discovery reveals no evidence to support the elements specified in the motion. The Court also omitted any specific reference to the trial court's ability to award reasonable attorneys' fees to the respondent for defending the motion. Some committee members expressed concerns that attorneys may use no-evidence motions to shift the cost of trial preparation to their adversary. The Comment does provide, however, that a no-evidence summary judgment is subject to sanctions provided by existing law and rules.
The new rule has garnered much criticism. Some concerns about the rule's ramifications and potential for abuse are:
2. Partial Summary Judgment Amendment
The Texas Supreme Court also revised subsection (e) of Rule 166a, which addresses a procedure the trial court may follow if he or she grants only a partial summary judgment. The new subsection reads as follows:
If summary judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the judge may at the hearing examine the pleadings and the evidence on file, interrogate counsel, ascertain what material fact issues exist and make an order specifying the facts that are established as a matter of law, and directing such further proceedings in the action as are just.
The text is much shorter than the previous version, but the substance is substantially the same.
Katherine L. Butler, The "No Evidence" Summary Judgment, 11th Annual Advanced Civil Appellate Practice Course, State Bar of Texas, September 1997
Hon. David Hittner & Lynne Liberato, No-Evidence Summary Judgments Under the New Rule, Houston Bar Association, September 16, 1997
Richard R. Orsinger, The New Texas Rules of Appellate Procedure, Practicing Under the New Texas Appellate Rules, State Bar of Texas, July 1997.
E. Lee Parsley, The Ten Things You Need to Know About the New Appellate Rules, 7th Annual Conference on State and Federal Appeals, University of Texas, June 1997
Jimmy Vaught, The New Appellate Rules -- At Last!, 11th Annual Advanced Civil Appellate Practice Course, State Bar of Texas, September 1997
Guide to the New Texas Rules of Appellate Procedure, State Bar of Texas Appellate Section, 1997
Updated: 13-Jan-2010 2:25 PM