Fernando Haffid Camero v. Samantha Jo Camero
Opinion
COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER ON MOTIONS
Appellate case name: Fernando Haffid Camero v. Samantha Jo Camero
Appellate case number: 01-15-00860-CV
Trial court case number: 76468-F
Trial court: 300th District Court of Brazoria County
On October 1, 2015, appellant, Fernando Haffid Camero, proceeding pro se and incarcerated, mistakenly filed a notice of appeal in this Court, from the August 10, 2015 final decree of divorce, but is deemed filed in the trial court on October 1, 2015. See TEX. R. APP. P. 25.1(a). Appellant filed no post-judgment motion, making September 9, 2015, his deadline for filing a notice of appeal. See id. 26.1; TEX. R. CIV. P. 329b(a), (g). Because appellant’s October 1, 2015 notice of appeal may not have been timely filed, this Court issued an Order and Notice of Intent to Dismiss for Want of Jurisdiction on January 21, 2016. See TEX. R. APP. P. 26.1, 42.3(a), (c). This Court’s Order further directed appellant to timely move for extension of time to file his notice of appeal by providing a reasonable explanation why his notice of appeal should be deemed timely under the “prisoner mailbox rule,” including any proof of when appellant placed the notice of appeal in the outgoing prison mailbox. Houser v. McElveen, 243 S.W.3d 646, 646-47 (Tex. 2008) (per curiam); see also Verburgt v. Dorner, 959 S.W.2d 615, 617–18 (Tex. 1997).
“Under the mailbox rule, a document is deemed timely filed if it is sent to the proper clerk by first-class mail in a properly addressed, stamped envelope on or before the last day for filing and is received not more than ten days beyond the filing deadline.” Glover v. Berleth, No. 01-09-00679-CV, 2012 WL 114200, at *2 (Tex. App.—Houston [1st Dist.] Jan. 12, 2012, no pet.) (mem. op.) (citing TEX. R. APP. P. 9.2(b)(1)); see also Ramos v. Richardson, 228 S.W.3d 671, 673 (Tex. 2007) (per curiam) (noting that appellant has burden of “providing some measure of proof that [his] notice[] of appeal w[as] placed in the United States mail on or before [the deadline],” such as “record in the form of the filing letter accompanying the [appellant’s] notice[] of appeal” stating the date the notice of appeal was placed in the “outgoing prison mailbox.”). Under the “prisoner mailbox rule,” the “pleadings of pro se inmates shall be deemed filed at the time they are delivered to prison authorities for forwarding to the court clerk.” Campbell v. State, 320 S.W.3d 338, 342, 344 (Tex. Crim. App. 2010).
On August 26, 2016, appellant moved for extension of time to file his pro se brief- affidavit, with a three-page pro se brief/affidavit filed in this Court addressing the merits of his appeal. 1 Appellant also attached two exhibits to his brief, Step 1 and Step 2 offender grievance forms alleging that his legal paperwork was temporarily confiscated by prison staff on August 24, 2015, and not all of it was returned, which may have caused his appellate deadline to expire.
On August 31, 2016, appellant filed a letter in this Court, dated August 24, 2016, claiming that he had provided proof of when he placed his notice of appeal in the outgoing prison mailbox by referring to the Step 1 and 2 grievances he previously submitted. In addition, appellant attached two other exhibits, the first was a letter from the district clerk, dated September 30, 2015, stating that she had received appellant’s September 19, 2015 cover letter, but that he had failed to include the notice of appeal. The second exhibit was appellant’s one-page cover letter entitled “Notice To Appeal,” dated September 19, 2015, and postmarked September 22, 2015, stating that he was enclosing his notice of appeal, but it included no separate notice of appeal.
This Court construes appellant’s August 31, 2016 letter as his letter-motion for extension of time to file his notice of appeal because it attaches exhibits to support that motion, and refers to the prior August 26, 2016 pro se brief/affidavit and Step 1 and 2 exhibits, and considers all as proof for his motion. See Glover, 2012 WL 114200, at *2 (stating that “Rule 9.2(b)(2) of the Texas Rules of Appellate Procedure, entitled ‘Proof of Mailing,’ identifies items that an appellate court will accept as conclusive proof of the date of mailing, and expressly permits that an appellate court may consider other proof.”) (citation omitted). This Court further construes appellant’s pro se cover letter, dated September 19, 2015, as his notice of appeal because he provided proof of when he placed the notice of appeal in the outgoing prison mailbox as it was postmarked on September 22, 2015. See id. Also, appellant titled his cover letter “Notice To Appeal,” stated that he was enclosing his notice of appeal, cited the underlying trial court cause number and divorce decree, and addressed it to the district clerk, indicating his intention to appeal.
In this case, appellant’s cover letter “Notice To Appeal,” postmarked September 22, 2015, was mailed by prison staff to the district clerk before the last day for filing,
1 On August 18, 2016, this Court granted appellant’s third extension of time to file his pro se brief-affidavit in support of his until September 14, 2016. On August 31, 2016, the Clerk of this Court retroactively granted appellant’s fourth motion for extension of time to file his pro se brief-affidavit until August 26, 2016, because he included a brief with the motion, both dated August 23, 2016. 2 which was September 24, 2015, including the fifteen-day grace period under rule 26.3(a), implying a motion for extension of time to file a notice of appeal. See Houser, 243 S.W.3d at 646 (holding that inmate’s “notice of appeal was deemed filed on the day he mailed it [35 days after trial court’s judgment was signed], since it was received one day after the 15-day deadline, . . . and a motion for extension was thereby implied. . . .”) (internal citations omitted); see also McCray v. Mulder, No. 05–08–00420–CV, 2008 WL 2600700, at *1 (Tex. App.—Dallas July 2, 2008, pet. denied) (per curiam) (mem. op.) (noting that “the notice of appeal [in Houser] was received by the trial court clerk on the sixteenth day after it was originally due, which was within ten days of the date it was due under rule 26.3(a).”) (citation omitted). Although appellant’s separate notice of appeal was not attached to his September 19, 2015 cover letter, his “Notice To Appeal,” dated September 28, 2015, was mistakenly filed in this Court on October 1, 2015, and deemed filed the same day with the trial court. See TEX. R. APP. P. 25.1(a). Thus, appellant’s “Notice To Appeal” was deemed filed on October 1, 2015, which means it was “received not more than ten days beyond the filing deadline.” Ramos, 228 S.W.3d at 673.
Accordingly, appellant’s August 31, 2016 letter-motion for extension of time to file his notice of appeal is GRANTED under the “prisoner mailbox rule,” and we have jurisdiction to consider his appeal on the merits. See TEX. R. APP. P. 9.2(b), 10.5(b), 26.3(b); Houser, 243 S.W.3d at 646; Ramos, 228 S.W.3d at 673; see also Glover, 2012 WL 114200, at *3 (concluding that appellant’s notice of appeal was timely filed under the mailbox rule and that court of appeals had jurisdiction to consider merits of appeal).
Because both appellant’s pro se brief, filed August 26, 2016, and his pro se supplemental brief, filed on September 1, 2016, appear to address the merits of his divorce appeal, appellee’s brief, if any, is ORDERED to be filed within 30 days of the date of this order. See TEX. R. APP. P. 38.6(b), (d).
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COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER ON MOTIONS
Appellate case name: Fernando Haffid Camero v. Samantha Jo Camero
Appellate case number: 01-15-00860-CV
Trial court case number: 76468-F
Trial court: 300th District Court of Brazoria County
On October 1, 2015, appellant, Fernando Haffid Camero, proceeding pro se and incarcerated, mistakenly filed a notice of appeal in this Court, from the August 10, 2015 final decree of divorce, but is deemed filed in the trial court on October 1, 2015. See TEX. R. APP. P. 25.1(a). Appellant filed no post-judgment motion, making September 9, 2015, his deadline for filing a notice of appeal. See id. 26.1; TEX. R. CIV. P. 329b(a), (g). Because appellant’s October 1, 2015 notice of appeal may not have been timely filed, this Court issued an Order and Notice of Intent to Dismiss for Want of Jurisdiction on January 21, 2016. See TEX. R. APP. P. 26.1, 42.3(a), (c). This Court’s Order further directed appellant to timely move for extension of time to file his notice of appeal by providing a reasonable explanation why his notice of appeal should be deemed timely under the “prisoner mailbox rule,” including any proof of when appellant placed the notice of appeal in the outgoing prison mailbox. Houser v. McElveen, 243 S.W.3d 646, 646-47 (Tex. 2008) (per curiam); see also Verburgt v. Dorner, 959 S.W.2d 615, 617–18 (Tex. 1997).
“Under the mailbox rule, a document is deemed timely filed if it is sent to the proper clerk by first-class mail in a properly addressed, stamped envelope on or before the last day for filing and is received not more than ten days beyond the filing deadline.” Glover v. Berleth, No. 01-09-00679-CV, 2012 WL 114200, at *2 (Tex. App.—Houston [1st Dist.] Jan. 12, 2012, no pet.) (mem. op.) (citing TEX. R. APP. P. 9.2(b)(1)); see also Ramos v. Richardson, 228 S.W.3d 671, 673 (Tex. 2007) (per curiam) (noting that appellant has burden of “providing some measure of proof that [his] notice[] of appeal w[as] placed in the United States mail on or before [the deadline],” such as “record in the form of the filing letter accompanying the [appellant’s] notice[] of appeal” stating the date the notice of appeal was placed in the “outgoing prison mailbox.”). Under the “prisoner mailbox rule,” the “pleadings of pro se inmates shall be deemed filed at the time they are delivered to prison authorities for forwarding to the court clerk.” Campbell v. State, 320 S.W.3d 338, 342, 344 (Tex. Crim. App. 2010).
On August 26, 2016, appellant moved for extension of time to file his pro se brief- affidavit, with a three-page pro se brief/affidavit filed in this Court addressing the merits of his appeal. 1 Appellant also attached two exhibits to his brief, Step 1 and Step 2 offender grievance forms alleging that his legal paperwork was temporarily confiscated by prison staff on August 24, 2015, and not all of it was returned, which may have caused his appellate deadline to expire.
On August 31, 2016, appellant filed a letter in this Court, dated August 24, 2016, claiming that he had provided proof of when he placed his notice of appeal in the outgoing prison mailbox by referring to the Step 1 and 2 grievances he previously submitted. In addition, appellant attached two other exhibits, the first was a letter from the district clerk, dated September 30, 2015, stating that she had received appellant’s September 19, 2015 cover letter, but that he had failed to include the notice of appeal. The second exhibit was appellant’s one-page cover letter entitled “Notice To Appeal,” dated September 19, 2015, and postmarked September 22, 2015, stating that he was enclosing his notice of appeal, but it included no separate notice of appeal.
This Court construes appellant’s August 31, 2016 letter as his letter-motion for extension of time to file his notice of appeal because it attaches exhibits to support that motion, and refers to the prior August 26, 2016 pro se brief/affidavit and Step 1 and 2 exhibits, and considers all as proof for his motion. See Glover, 2012 WL 114200, at *2 (stating that “Rule 9.2(b)(2) of the Texas Rules of Appellate Procedure, entitled ‘Proof of Mailing,’ identifies items that an appellate court will accept as conclusive proof of the date of mailing, and expressly permits that an appellate court may consider other proof.”) (citation omitted). This Court further construes appellant’s pro se cover letter, dated September 19, 2015, as his notice of appeal because he provided proof of when he placed the notice of appeal in the outgoing prison mailbox as it was postmarked on September 22, 2015. See id. Also, appellant titled his cover letter “Notice To Appeal,” stated that he was enclosing his notice of appeal, cited the underlying trial court cause number and divorce decree, and addressed it to the district clerk, indicating his intention to appeal.
In this case, appellant’s cover letter “Notice To Appeal,” postmarked September 22, 2015, was mailed by prison staff to the district clerk before the last day for filing,
1 On August 18, 2016, this Court granted appellant’s third extension of time to file his pro se brief-affidavit in support of his until September 14, 2016. On August 31, 2016, the Clerk of this Court retroactively granted appellant’s fourth motion for extension of time to file his pro se brief-affidavit until August 26, 2016, because he included a brief with the motion, both dated August 23, 2016. 2 which was September 24, 2015, including the fifteen-day grace period under rule 26.3(a), implying a motion for extension of time to file a notice of appeal. See Houser, 243 S.W.3d at 646 (holding that inmate’s “notice of appeal was deemed filed on the day he mailed it [35 days after trial court’s judgment was signed], since it was received one day after the 15-day deadline, . . . and a motion for extension was thereby implied. . . .”) (internal citations omitted); see also McCray v. Mulder, No. 05–08–00420–CV, 2008 WL 2600700, at *1 (Tex. App.—Dallas July 2, 2008, pet. denied) (per curiam) (mem. op.) (noting that “the notice of appeal [in Houser] was received by the trial court clerk on the sixteenth day after it was originally due, which was within ten days of the date it was due under rule 26.3(a).”) (citation omitted). Although appellant’s separate notice of appeal was not attached to his September 19, 2015 cover letter, his “Notice To Appeal,” dated September 28, 2015, was mistakenly filed in this Court on October 1, 2015, and deemed filed the same day with the trial court. See TEX. R. APP. P. 25.1(a). Thus, appellant’s “Notice To Appeal” was deemed filed on October 1, 2015, which means it was “received not more than ten days beyond the filing deadline.” Ramos, 228 S.W.3d at 673.
Accordingly, appellant’s August 31, 2016 letter-motion for extension of time to file his notice of appeal is GRANTED under the “prisoner mailbox rule,” and we have jurisdiction to consider his appeal on the merits. See TEX. R. APP. P. 9.2(b), 10.5(b), 26.3(b); Houser, 243 S.W.3d at 646; Ramos, 228 S.W.3d at 673; see also Glover, 2012 WL 114200, at *3 (concluding that appellant’s notice of appeal was timely filed under the mailbox rule and that court of appeals had jurisdiction to consider merits of appeal).
Because both appellant’s pro se brief, filed August 26, 2016, and his pro se supplemental brief, filed on September 1, 2016, appear to address the merits of his divorce appeal, appellee’s brief, if any, is ORDERED to be filed within 30 days of the date of this order. See TEX. R. APP. P. 38.6(b), (d). Appellant’s reply brief, if any, must be filed within 20 days after the filing date of appellee’s brief. See id. 38.6(c).
Finally, because appellant is a pro se inmate and submitted a letter-motion requesting a copy of this Court’s local rules, local procedure and evidence rules, filed in this Court on September 1, 2016, his letter-motion is GRANTED for appellant for his reply brief, if any. See TEX. R. APP. P. 38.3. The Clerk of this Court is directed to mail a copy of this Court’s Local Rules, the Texas Rules of Appellate Procedure, and the Texas Rules of Evidence to appellant within 5 days of this order.
It is so ORDERED.
Judge’s signature: /s/ Laura Carter Higley x Acting individually Acting for the Court
Date: September 8, 2016
3 TEXAS RULES OF APPELLATE PROCEDURE Table of Contents
SECTION ONE. (c) Where to File. GENERAL PROVISIONS (d) Order of the Court.
Rule 1. Scope of Rules; Local Rules of Courts of Rule 5. Fees in Civil Cases Appeals Rule 6. Representation by Counsel 1.1. Scope. 6.1. Lead Counsel 1.2. Local Rules (a) For Appellant. (a) Promulgation. (b) For a Party Other Than Appellant. (b) Copies. (c) How to Designate. (c) Party's Noncompliance. 6.2. Appearance of Other Attorneys Rule 2. Suspension of Rules 6.3. To Whom Communications Sent Rule 3. Definitions; Uniform Terminology 6.4. Nonrepresentation Notice 3.1. Definitions (a) In General. (b) Appointed Counsel. 3.2. Uniform Terminology in Criminal Cases 6.5. Withdrawal (a) Contents of Motion. Rule 4. Time and Notice Provisions (b) Delivery to Party. (c) If Motion Granted. 4.1. Computing Time (d) Exception for Substitution of (a) In General. Counsel. (b) Clerk's Office Closed or Inaccessible. 6.6. Agreements of Parties or Counsel
4.2. No Notice of Trial Court’s Judgment Rule 7. Substituting Parties in Civil Case (a) Additional Time to File Documents. 7.1. Parties Who Are Not Public Officers (1) In general. (a) Death of a Party. (2) Exception for restricted appeal. (1) Civil Cases. (b) Procedure to Gain Additional Time. (2) Criminal Cases. (c) The Court’s Order. (b) Substitution for Other Reasons.
4.3. Periods Affected by Modified 7.2. Public Officers Judgment in Civil Case (a) Automatic Substitution of Officer. (a) During Plenary-Power Period. (b) Abatement. (b) After Plenary Power Expires. Rule 8. Bankruptcy in Civil Cases 4.4. Periods Affected When Process Served by Publication 8.1. Notice of Bankruptcy
4.5. No Notice of Judgment or Order of 8.2. Effect of Bankruptcy Appellate Court; Effect on Time to File Certain Documents 8.3. Motion to Reinstate or Sever Appeal (a) Additional Time to File Documents. Suspended by Bankruptcy (b) Procedure to Gain Additional Time. (a) Motion to Reinstate.
i (b) Motion to Sever. Civil Cases (a) Sensitive Data Defined. Rule 9. Documents Generally (b) Filing of Documents Containing Sensitive Data Prohibited. 9.1. Signing (c) Redaction of Sensitive Data; (a) Represented Parties. Retention Required. (b) Unrepresented Parties. (d) Notice to Clerk. (c) Electronic Signatures. (e) Restriction on Remote Access.
9.2. Filing 9.10. Privacy Protection for Documents Filed in (a) With Whom. Criminal Cases (b) Filing by Mail. (a) Sensitive Data Defined. (1) Timely Filing. (b) Redacted Filings. (2) Proof of Mailing. (c) Exemptions from the Redaction (c) Electronic Filing. Requirement. (d) Redaction Procedures. 9.3. Number of Copies; Electronic Copies (e) Certification. (a) Courts of Appeals. (f) Reference List. (b) Supreme Court and Court of (g) Sealed materials. Criminal Appeals. (h) Waiver of Protection of Identifiers. (c) Exception for Record. Rule 10. Motions in the Appellate Courts 9.4. Form (a) Printing. 10.1. Contents of Motions; Response (b) Paper Type and Size. (a) Motion. (c) Margins. (b) Response. (d) Spacing. (e) Typeface. 10.2. Evidence on Motions (f) Binding and Covering. (g) Contents of Cover. 10.3. Determining Motions (h) Appendix. (a) Time for Determination. (i) Length. (b) Reconsideration. (j) Electronically Filed Documents. (k) Nonconforming Documents. 10.4. Power of Panel or Single Justice or Judge to Entertain Motions 9.5. Service (a) Single Justice. (a) Service of All Documents Required. (b) Panel. (b) Manner of Service. (c) When complete. 10.5. Particular Motions (d) Proof of Service. (a) Motions Relating to Informalities in (e) Certificate Requirements. the Record. (b) Motions to Extend Time. 9.6. Communications with the Court (1) Contents of Motion in General. (2) Contents of Motion to Extend 9.7. Adoption by Reference Time to File Notice of Appeal. (3) Contents of Motion to Extend 9.8. Protection of Minor’s Identity in Time to File Petition for Parental-Rights Termination Cases Review or Petition for and Juvenile Court Cases Discretionary Review. (c) Motions to Postpone Argument. (a) Alias Defined. (b) Parental-Rights Termination Cases. Rule 11. Amicus Curiae Briefs (c) Juvenile Court Cases. (d) No Alteration of Appellate Record. Rule 12. Duties of Appellate Clerk
9.9. Privacy Protection for Documents Filed in 12.1. Docketing the Case
ii 12.2. Docket Numbers 15.2. Appearance Without Service; Actual (a) Numbering System. Knowledge (b) Numbering Order. (c) Multiple Notices of Appeal. Rule 16. Disqualification or Recusal of Appellate (d) Appeals Not Yet Filed. Judges
12.3. Custody of Papers 16.1. Grounds for Disqualification
12.4. Withdrawing Papers 16.2. Grounds for Recusal
12.5. Clerk's Duty to Account 16.3. Procedure for Recusal (a) Motion. 12.6. Notices of Court’s Judgments and (b) Decision. Orders (c) Appeal.
Rule 13. Court Reporters and Court Recorders Rule 17. Court of Appeals Unable to Take Immediate Action 13.1. Duties of Court Reporters and Recorders 17.1. Inability to Act
13.2. Additional Duties of Court Recorder 17.2. Nearest Available Court of Appeals
13.3. Priorities of Reporters 17.3. Further Proceedings
13.4. Report of Reporters Rule 18. Mandate
13.5. Appointing Deputy Reporter 18.1. Issuance (a) In the Court of Appeals. 13.6. Filing of Notes in a Criminal Case (b) In the Supreme Court and the Court of Criminal Appeals. Rule 14. Recording and Broadcasting Court (c) Agreement to Issue. Proceedings 18.2. Stay of Mandate 14.1. Recording and Broadcasting Permitted 18.3. Trial Court Case Number
14.2. Procedure 18.4. Filing of Mandate (a) Request to cover Court proceeding. (b) Response. 18.5. Costs (c) Court May Shorten Time. (d) Decision of Court. 18.6. Mandate in Accelerated Appeals
14.3. Equipment and Personnel 18.7. Recall of Mandate
14.4. Enforcement Rule 19. Plenary Power of the Courts of Appeals and Expiration of Term Rule 15. Issuance of Writ or Process by Appellate Court 19.1. Plenary Power of Courts of Appeals
15.1. In General 19.2. Plenary Power Continues After (a) Signature Under Seal. Petition Filed (b) To Whom Directed; by Whom Served. 19.3. Proceedings After Plenary Power (c) Return; Lack of Execution; Expires Simultaneous Writs.
iii 19.4. Expiration of Term 22.3. Time to File Motion
Rule 20. When Party is Indigent 22.4. Court's Ruling (a) Time to Rule; Form of Ruling. 20.1. Civil Cases (b) Failure to Rule. (a) Costs Defined. (b) When a Statement Was Filed in the 22.5. Effect of Denying Trial Court. (1) General Rule; Status in Trial 22.6. Effect of Granting Court Carries Forward. (a) Defendant Restored. (2) Establishing the Right to (b) Defendant Discharged or Proceed Under the General Remanded. Rule. (3) Exception; Material Change in Rule 23. Nunc Pro Tunc Proceedings in Criminal Circumstances. Cases (c) When No Statement Was Filed in the Trial Court. 23.1. Judgment and Sentence
20.2. Criminal Cases 23.2. Credit on Sentence
SECTION TWO. APPEALS FROM TRIAL Rule 24. Suspension of Enforcement of Judgment COURT JUDGMENTS AND ORDERS Pending Appeal in Civil Cases
Rule 21. New Trials in Criminal Cases 24.1. Suspension of Enforcement (a) Methods. 21.1. Definitions (b) Bonds. (a) New Trial. (c) Deposit in Lieu of Bond. (b) New Trial on Punishment. (1) Types of Deposits. (2) Amount of Deposit. 21.2. When Motion for New Trial Required (3) Clerk’s Duties; Interest. (d) Conditions of Liability. 21.3. Grounds (e) Orders of Trial Court. (f) Effect of Supersedeas. 21.4. Time to File and Amend Motion (a) To file. 24.2. Amount of Bond, Deposit, or Security (b) To Amend. (a) Type of Judgment. (1) For Recovery of Money. 21.5. State May Controvert; Effect (2) For Recovery of Property. (3) Other Judgment. 21.6. Time to Present (4) Conservatorship or Custody. (5) For a Governmental Entity. 21.7. Types of Evidence Allowed at Hearing (b) Lesser Amount. (c) Determination of Net Worth. 21.8. Court's Ruling (1) Judgment Debtor's Affidavit (a) Time to Rule. Required; Contents; Prima (b) Ruling. Facie Evidence. (c) Failure to Rule. (2) Contest; Discovery. (3) Hearing; Burden of Proof; 21.9. Granting a New Trial Findings; Additional Security. (d) Injunction. Rule 22. Arrest of Judgment in Criminal Cases 24.3. Continuing Trial Court Jurisdiction; 22.1. Definition Duties of Judgment Debtor (a) Continuing Jurisdiction. 22.2. Grounds (b) Duties of Judgment Debtor.
iv 24.4. Appellate Review (a) Motions; Review. 28.1. Accelerated Appeals (b) Grounds of Review. (a) Types of Accelerated Appeals. (c) Temporary Orders. (b) Perfection of Accelerated Appeal. (d) Action by Appellate Court. (c) Appeals of Interlocutory Orders. (e) Effect of Ruling. (d) Quo Warranto Appeals. (e) Record and Briefs. Rule 25. Perfecting Appeal 28.2. Agreed Interlocutory Appeals in Civil 25.1. Civil Cases. Cases (a) Notice of Appeal. (a) Perfecting Appeal. (b) Jurisdiction of Appellate Court. (b) Other Requirements. (c) Who Must File Notice. (c) Contents of Notice. (d) Contents of Notice. (d) Determination of Jurisdiction. (e) Service of Notice. (e) Record; Briefs. (f) Clerk’s Duties. (f) No Automatic Stay of Proceedings (g) Amending the Notice. in Trial Court. (h) Enforcement of Judgment Not Suspended by Appeal. 28.3. Permissive Appeals in Civil Cases. (a) Petition Required. 25.2. Criminal Cases (b) Where Filed. (a) Rights to Appeal. (c) When Filed. (1) Of the State. (d) Extension of Time to File Petition. (2) Of the Defendant. (e) Contents. (b) Perfection of Appeal. (f) Response; Reply; Cross-Petition; (c) Form and Sufficiency of Notice. Time for Filing. (d) Certification of Defendant's Right of (g) Length of Petition, Cross-Petition, Appeal. Response, and Reply. (e) Clerk's Duties. (h) Service. (f) Amending the Notice. (i) Docketing Statement. (g) Effect of Appeal. (j) Time for Determination. (h) Advice of Right of Appeal. (k) When Petition Granted.
Rule 26. Time to Perfect Appeal 28.4. Accelerated Appeals in Parental Termination and Child Protection 26.1. Civil Cases Cases (a) Application and Definitions. 26.2. Criminal Cases (b) Appellate Record. (a) By the Defendant. (c) Remand for New Trial. (b) By the State. Rule 29. Orders Pending Interlocutory Appeal in 26.3. Extension of Time Civil Cases
Rule 27. Premature Filings 29.1. Effect of Appeal
27.1. Prematurely Filed Notice of Appeal 29.2. Security (a) Civil Cases. (b) Criminal Cases. 29.3. Temporary Orders of Appellate Court
27.2. Other Premature Actions 29.4. Enforcement of Temporary Orders
27.3. If Appealed Order Modified or 29.5. Further Proceedings in Trial Court Vacated 29.6. Review of Further Orders Rule 28. Accelerated, Agreed, and Permissive (a) Motion to Review Further Orders. Appeals in Civil Cases (b) Record.
v Rule 34. Appellate Record Rule 30. Restricted Appeal to Court of Appeals in Civil Cases 34.1. Contents
Rule 31. Appeals in Habeas Corpus, Bail, and 34.2. Agreed Record Extradition Proceedings in Criminal Cases 34.3. Agreed Statement of the Case 31.1. Filing the Record; Submission 34.4. Form 31.2. Hearing 34.5. Clerk’s Record 31.3. Orders on Appeal (a) Contents. (b) Request for Additional Items. 31.4. Stay of Mandate (1) Time for Request. (a) When Motion for Stay Required. (2) Request Must Be Specific. (b) Determination of the motion. (3) Requesting Unnecessary Items. (c) Denial of stay. (4) Failure to Timely Request. (c) Supplementation. 31.5. Judgment Conclusive (d) Defects or Inaccuracies. (e) Clerk’s Record Lost or Destroyed. 31.6. Defendant Detained by Other Than (f) Original Documents. Officer (g) Additional Copies of Clerk’s Record in Criminal Cases. 31.7. Judgment to be Certified (h) Clerk May Consult With Parties.
Rule 32. Docketing Statement 34.6. Reporter’s Record (a) Contents. 32.1. Civil Cases (1) Stenographic Recording. (2) Electronic Recording. 32.2. Criminal Cases (b) Request for Preparation. (1) Request to Court Reporter. 32.3. Supplemental Statements (2) Filing. (3) Failure to Timely Request. 32.4. Purpose of Statement (c) Partial Reporter’s Record. (1) Effect on Appellate Points or Rule 33. Preservation of Appellate Complaints Issues. (2) Other Parties May Designate 33.1. Preservation; How Shown Additions. (a) In General. (3) Costs; Requesting Unnecessary (b) Ruling by Operation of Law. Matter. (c) Formal Exception and Separate (4) Presumptions. Order Not Required. (5) Criminal Cases. (d) Sufficiency of Evidence Complaints (d) Supplementation. in Nonjury Cases. (e) Inaccuracies in the Reporter’s Record. 33.2. Formal Bills of Exception (1) Correction of Inaccuracies by (a) Form. Agreement. (b) Evidence. (2) Correction of Inaccuracies by (c) Procedure. Trial Court. (d) Conflict. (3) Correction After Filing in (e) Time to File. Appellate Court. (1) Civil Cases. (f) Reporter’s Record Lost or (2) Criminal Cases. Destroyed. (3) Extension of Time. (g) Original Exhibits. (f) Inclusion in Clerk’s Record. (1) Reporter May Use in Preparing Reporter’s Record.
vi (2) Use of Original Exhibits by (g) Statement of Facts. Appellate Court. (h) Summary of the Argument. (h) Additional Copies of Reporter’s (i) Argument. Record in Criminal Cases. (j) Prayer. (i) Supreme Court and Court of (k) Appendix in Civil Cases. Criminal Appeals May Set Fee. (1) Necessary Contents. (2) Optional Contents. Rule 35. Time to File Record; Responsibility for Filing Record 38.2. Appellee's Brief (a) Form of Brief. 35.1. Civil Cases (b) Cross-Points. (1) Judgment Notwithstanding the 35.2. Criminal Cases Verdict. (2) When Evidentiary Hearing 35.3. Responsibility for Filing Record Needed. (a) Clerk’s Record. (b) Reporter’s Record. 38.3. Reply Brief (c) Courts to Ensure Record Timely Filed. 38.4. Deleted
Rule 36. Agency Record in Administrative Appeals 38.5. Appendix for Cases Recorded Electronically 36.1. Scope (a) Appendix. (1) In General. 36.2. Inclusion in Appellate Record (2) Repetition Not Required. (3) Form. 36.3. Correcting the Record (4) Notice. (a) Correction by Agreement. (b) Presumptions. (b) Correction by Trial Court. (c) Supplemental Appendix. (d) Inability to Pay. Rule 37. Duties of the Appellate Clerk on Receiving (e) Inaccuracies. the Notice of Appeal and Record (1) Correction by Agreement. (2) Correction by Appellate or 37.1. On Receiving the Notice of Appeal Trial Court. (f) Costs. 37.2. On Receiving the Record 38.6. Time to File Briefs 37.3. If No Record Filed (a) Appellant's Filing Date. (a) Notice of late record. (b) Appellee's Filing Date. (1) Civil Cases. (c) Filing Date for Reply Brief. (2) Criminal Cases. (d) Modifications of Filing Time. (b) If No Clerk’s Record Filed Due to Appellant's Fault. 38.7. Amendment or Supplementation (c) If No Reporter’s Record Filed Due to Appellant's Fault. 38.8. Failure of Appellant to File Brief (a) Civil Cases. Rule 38. Requisites of Briefs (b) Criminal Cases. (1) Effect. 38.1. Appellant's Brief (2) Notice. (a) Identity of Parties and Counsel. (3) Hearing. (b) Table of Contents. (4) Appellate Court Action. (c) Index of Authorities. (d) Statement of the Case. 38.9. Briefing Rules to be Construed (e) Any Statement Regarding Oral Liberally Argument. (a) Formal Defects. (f) Issues Presented. (b) Substantive Defects.
vii 42.3. Involuntary Dismissal in Civil Cases Rule 39. Oral Argument; Decision Without Argument 42.4. Involuntary Dismissal in Criminal Cases 39.1. Right to Oral Argument (a) Timely Return to Custody; Reinstatement. 39.2. Purpose of Argument (b) Life Sentence.
39.3. Time Allowed Rule 43. Judgment of the Court of Appeals
39.4. Number of Counsel 43.1. Time
39.5. Argument by Amicus 43.2. Types of Judgment
39.6. When Only One Party Files a Brief 43.3. Rendition Appropriate Unless Remand Necessary 39.7. Request and Waiver 43.4. Judgment for Costs in Civil Cases 39.8. Clerk’s Notice 43.5. Judgment Against Sureties in Civil Rule 40. ORDER OF DECISION Cases
40.1. Civil Cases 43.6. Other Orders
40.2. Criminal Cases Rule 44. Reversible Error
Rule 41. Panel and En Banc Decision 44.1. Reversible Error in Civil Cases (a) Standard for Reversible Error. 41.1. Decision by Panel (b) Error Affecting Only Part of Case. (a) Constitution of Panel. (b) When Panel Cannot Agree on 44.2. Reversible Error in Criminal Cases Judgment. (a) Constitutional Error. (c) When Court Cannot Agree on (b) Other Errors. Judgment. (c) Presumptions.
41.2. Decision by En Banc Court 44.3. Defects in Procedure (a) Constitution of En Banc Court. (b) When En Banc Court Cannot Agree 44.4. Remediable Error of the Trial Court on Judgment. (a) Generally. (c) En Banc Consideration Disfavored. (b) Court of Appeals Direction if Error Remediable. 41.3. Precedent in Transferred Cases. Rule 45. Damages for Frivolous Appeals in Civil Rule 42. Dismissal Cases
42.1. Voluntary Dismissal in Civil Cases Rule 46. Remittitur in Civil Cases (a) On Motion or By Agreement. (1) On Motion of Appellant. 46.1. Remittitur After Appeal Perfected (2) By Agreement. Trial (b) Partial Disposition. (c) Effect on Court's Opinion. 46.2. Appeal on Remittitur (d) Costs. 46.3. Suggestion of Remittitur by Court of 42.2. Voluntary Dismissal in Criminal Appeals Cases 46.4. Refusal to Remit Must Not Be
viii Mentioned in Later 49.8. Extensions of Time 46.5. Voluntary Remittitur 49.9. Not Required for Review Rule 47. Opinions, Publication, and Citation 49.10. Deleted 47.1. Written Opinions 49.11. Relationship to Petition for Review 47.2. Designation and Signing of Opinions; Participating Justices 49.12. Certificate of Conference Not (a) Civil and Criminal Cases. Required (b) Criminal Cases. (c) Civil Cases. Rule 50. Abolished eff Sept 1, 2011
47.3. Distribution of Opinions Rule 51. Enforcement of Judgments After Mandate
47.4. Memorandum Opinions 51.1. Civil Cases (a) Statement of Costs. 47.5. Concurring and Dissenting Opinions (b) Enforcement of Judgment.
47.6. Change in Designation by En Banc 51.2. Criminal Cases Court (a) Clerk’s Duties. (b) Judgment of Affirmance; Defendant 47.7. Citation of Unpublished Opinions Not in Custody. (a) Criminal Cases. (1) Capias to Be Issued. (b) Civil Cases. (2) Contents of Capias. (3) Sheriff's Duties. Rule 48. Copy of Opinion and Judgment to (c) Judgment of Reversal. Interested Parties and Other Courts (1) When new Trial Ordered. (2) When Case Dismissed. 48.1. Mailing Opinion and Judgment in All (d) Judgment of Acquittal. Cases SECTION THREE. ORIGINAL PROCEEDINGS 48.2. Additional Recipients in Criminal IN THE SUPREME COURT AND THE Cases COURTS OF APPEALS
48.3. Filing Opinion and Judgment Rule 52. Original Proceedings
48.4. Opinion Sent to Criminal Defendant 52.1. Commencement
Rule 49. Motion for Rehearing and En Banc 52.2. Designation of Parties Reconsideration 52.3. Form and Contents of Petition 49.1. Further Motion for Rehearing (a) Identity of Parties and Counsel. (b) Table of Contents. 49.2. Response (c) Index of Authorities. (d) Statement of the Case. 49.3. Decision on Motion (e) Statement of Jurisdiction. (f) Issues Presented. 49.4. Accelerated Appeals. (g) Statement of Facts. (h) Argument. 49.5. Further Motion for Rehearing (i) Prayer. (j) Certification. 49.6. Amendments (k) Appendix. (1) Necessary Contents. 49.7. En Banc Reconsideration (2) Optional Contents.
ix 53.5. Petitioner's Reply to Response 52.4. Response 53.6. Deleted 52.5. Relator’s Reply to Response 53.7. Time and Place of Filing 52.6. Deleted (a) Petition. (b) Premature Filing. 52.7. Record (c) Petitions Filed by Other Parties. (a) Filing by Relator Required. (d) Response. (b) Supplementation Permitted. (e) Reply. (c) Service of Record on All Parties. (f) Extension of Time. (g) Petition Filed in Court of Appeals. 52.8. Action on Petition (a) Relief Denied. 53.8. Amendment (b) Interim Action. (c) Relief Granted. 53.9. Court May Require Revision (d) Opinion. Rule 54. Filing the Record 52.9. Motion for Rehearing 54.1. Request for Record 52.10. Temporary Relief (a) Motion for Temporary Relief; 54.2. Duty of Court of Appeals Clerk Certificate of Compliance. (a) Request for Record. (b) Grant of Temporary Relief. (b) Nondocumentary Exhibits. (c) Motion to Reconsider. 54.3. Expenses 52.11. Groundless Petition or Misleading Statement or Record 54.4. Duty of Supreme Court Clerk
SECTION FOUR. PROCEEDINGS IN THE Rule 55. Briefs on the Merits SUPREME COURT 55.1. Request by Court Rule 53. Petition for Review 55.2. Petitioner's Brief on the Merits 53.1. Method of Review (a) Identity of Parties and Counsel. (b) Table of Contents. 53.2. Contents of Petition (c) Index of Authorities. (a) Identity of Parties and Counsel. (d) Statement of the Case. (b) Table of Contents. (e) Statement of Jurisdiction. (c) Index of Authorities. (f) Issues Presented. (d) Statement of the Case. (g) Statement of Facts. (e) Statement of Jurisdiction. (h) Summary of the Argument. (f) Issues Presented. (i) Argument. (g) Statement of Facts. (j) Prayer. (h) Summary of the Argument. (i) Argument. 55.3. Respondent's Brief (j) Prayer. (k) Appendix. 55.4. Petitioner's Brief in Reply (1) Necessary Contents. (2) Optional Contents. 55.5. Reliance on Prior Brief
53.3. Response to Petition for Review 55.6. Deleted
53.4. Points Not Considered in Court of 55.7. Time and Place of Filing; Extension of Appeals Time
x 55.8. Amendment 58.9. Opinion on Certified Questions 55.9. Court May Require Revision 58.10. Answering Certified Questions Rule 56. Orders on Petition for Review Rule 59. Submission and Argument 56.1. Orders on Petition for Review (a) Considerations in Granting Review. 59.1. Submission Without Argument (b) Petition Denied or Dismissed. (1) “Denied.” 59.2. Submission With Argument (2) “Dismissed w.o.j.” (c) Petition Refused. 59.3. Purpose of Argument (d) Improvident Grant. 59.4. Time for Argument 56.2. Moot Cases 59.5. Number of Counsel 56.3. Settled Cases 59.6. Argument by Amicus Curiae 56.4. Notice to Parties Rule 60. Judgments in the Supreme Court 56.5. Return of Documents to Court of Appeals 60.1. Announcement of Judgments
Rule 57. Direct Appeals to the Supreme Court 60.2. Types of Judgment
57.1. Application 60.3. Remand in the Interest of Justice
57.2. Jurisdiction 60.4. Judgment for Costs
57.3. Statement of Jurisdiction 60.5. Judgment Against Sureties
57.4. Preliminary Ruling on Jurisdiction 60.6. Other Orders
57.5. Direct Appeal Exclusive While Rule 61. Reversible Error Pending 61.1. Standard for Reversible Error Rule 58. Certification of Questions of Law by United States Courts 61.2. Error Affecting Only Part of the Case
58.1. Certification 61.3. Defects in Procedure
58.2. Contents of the Certification Order 61.4. Remediable Error of the Trial Court or Court of Appeals 58.3. Transmission of Certification Order (a) Generally. (b) Supreme Court Direction if Error 58.4. Transmission of Record Remediable.
58.5. Fees and Costs Rule 62. Damages for Frivolous Appeals
58.6. Notice Rule 63. Opinions; Copy of Opinion and Judgment to Interested Parties and Other Courts 58.7. Briefs and Oral Argument (a) Briefs. Rule 64. Motion for Rehearing (b) Oral Argument. 64.1. Time for Filing 58.8. Intervention by the State
xi 64.2. Contents (d) Statement of the Case. (e) Statement of Procedural History. 64.3. Response and Decision (f) Grounds for Review. (g) Argument. 64.4. Second Motion (h) Prayer for Relief. (i) Appendix. 64.5. Extensions of Time 68.5. Deleted 64.6. Deleted 68.6. Nonconforming Petition Rule 65. Enforcement of Judgment after Mandate 68.7. Court of Appeals Clerk's Duties 65.1. Statement of Costs (a) On filing of the Petition. (b) Reply. 65.2. Enforcement of Judgment (c) Sending Petition and Reply to Court of Criminal Appeals.
SECTION FIVE. PROCEEDINGS IN THE 68.8. Court of Criminal Appeals Clerk’s COURT OF CRIMINAL APPEALS Duties
Rule 66. Discretionary Review in General 68.9. Reply
66.1. With or Without Petition 68.10. Amendment
66.2. Not a Matter of Right 68.11. Service on State Prosecuting Attorney
66.3. Reasons for Granting Review Rule 69. Action of Court on Petition for Discretionary Review and After Granting Review 66.4. Documents to Aid Decision (a) Acquiring Documents. 69.1. Granting or Refusal (b) Return of Documents. 69.2. Setting Case for Submission Rule 67. Discretionary Review Without Petition 69.3. Improvident Grant of Review 67.1. Four Judges' Vote 69.4. Clerk's Duties 67.2. Order Staying Mandate (a) On Refusal or Dismissal. (b) On Granting Review. 67.3. Time to Issue Mandate Extended Rule 70. Brief on the Merits Rule 68. Discretionary Review with Petition 70.1. Initial Brief 68.1. Generally 70.2. Reply Brief 68.2. Time to File Petition (a) First Petition. 70.3. Brief Contents and Form (b) Subsequent Petition. (c) Extension of Time. 70.4. Other Briefs
68.3. Where to File Petition Rule 71. Direct Appeals
68.4. Contents of Petition 71.1. Direct Appeal (a) Table of Contents. (b) Index of Authorities. 71.2. Record (c) Statement Regarding Oral Argument. 71.3. Briefs
xii Submission 71.4. Additional Briefs 75.2. Request for Argument Rule 72. Extraordinary Matters 75.3. Oral Argument 72.1. Leave to File Rule 76. Submissions En Banc 72.2. Disposition Rule 77. Opinions Rule 73. Postconviction Applications for Writs of Habeas Corpus 77.1. Generally
73.1. Form for Application Filed Under 77.2. Signing; Publication Article 11.07 of the Code of Criminal Procedure 77.3. Unpublished Opinions
73.2. Noncompliant Applications 77.4. Copies
73.3. State’s Response Rule 78. Judgments in the Court of Criminal Appeals 73.4. Filing and Transmission of Habeas Corpus 78.1. Types of Judgment
73.5. Time Frame for Resolution of Claims 78.2. Remand in the Interests of Justice Raised in Application 78.3. Other Orders 73.6. Action on Application Rule 79. Rehearings Rule 74. Review of Certified State Criminal-Law Questions 79.1. Motion for Rehearing
74.1. Certification 79.2. Contents
74.2. Contents of the Certification Order 79.3. Amendments
74.3. Transmission of Certification Order 79.4. Decision
74.4. Transmission of Record 79.5. Further Motion for Rehearing
74.5. Notice 79.6. Extension of Time
74.6. Briefs and Oral Argument 79.7. Service (a) Briefs. (b) Oral Argument.
74.7. Intervention by the State
74.8. Opinion on Certified Question
74.9. Motion for Rehearing
74.10. Answering Certified Questions
Rule 75. Notification; Oral Argument
75.1. Notification of Argument or
xiii TEXAS RULES OF APPELLATE PROCEDURE Updated with Amendments Effective September 1, 2016
SECTION ONE: GENERAL PROVISIONS Notes and Comments Rule 1. Scope of Rule; Local Rules of Courts of Comment to 1997 change: Former Appeals subdivision (a) regarding appellate court jurisdiction is deleted. The power to suspend rules is extended to 1.1. Scope civil cases. Other nonsubstantive changes are made.
These rules govern procedure in appellate Rule 3. Definitions; Uniform Terminology courts and before appellate judges and post-trial procedure in trial courts in criminal cases. 3.1. Definitions
1.2. Local Rules (a) Appellant means a party taking an appeal to an appellate court. (a) Promulgation. A court of appeals may promulgate rules governing its practice that (b) Appellate court means the courts of appeals, are not inconsistent with these rules. Local the Court of Criminal Appeals, and the rules governing civil cases must first be Supreme Court. approved by the Supreme Court. Local rules governing criminal cases must first be (c) Appellee means a party adverse to an approved by the Court of Criminal Appeals. appellant.
(b) Copies. The clerk must provide a copy of the (d) Applicant means a person seeking relief by a court's local rules to anyone who requests it. habeas corpus in a criminal case;
(c) Party's Noncompliance. A court must not (e) Petitioner means a party petitioning the dismiss an appeal for noncompliance with a Supreme Court or the Court of Criminal local rule without giving the noncomplying Appeals for review. party notice and a reasonable opportunity to cure the noncompliance. (f) Relator means a person seeking relief in an original proceeding in an appellate court Notes and Comments other than by habeas corpus in a criminal case. Comment to 1997 change: Subdivision 1.1 is simplified without substantive change. Subdivision (g) Reporter or court reporter means the court 1.2 is amended to make clear that any person is entitled reporter or court recorder. to a copy of local rules. Paragraph 1.2(c), restricting dismissal of a case for noncompliance with a local (h) Respondent means: rule, is added. (1) a party adverse to a petitioner in the Rule 2. Suspension of Rule Supreme Court or the Court of Criminal Appeals; or On a party's motion or on its own initiative an appellate court may — to expedite a decision or for (2) a party against whom relief is sought in other good cause — suspend a rule's operation in a an original proceeding in an appellate particular case and order a different procedure; but a court. court must not construe this rule to suspend any provision in the Code of Criminal Procedure or to alter 3.2. Uniform Terminology in Criminal Cases the time for perfecting an appeal in a civil case.
1 In documents filed in criminal appeals, the parties by Texas Rule of Civil Procedure are the State and the appellant. But if the State has 306a.3 or acquired actual appealed under Article 44.01 of the Code of Criminal knowledge of the signing, then a Procedure, the defendant is the appellee. Otherwise, period that, under these rules, runs papers should use real names for parties, and such from the signing will begin for that labels as appellee, petitioner, respondent, and movant party on the earlier of the date when should be avoided unless necessary for clarity. In the party receives notice or acquires habeas corpus proceedings, the person for whose relief actual knowledge of the signing. the writ is requested is the applicant; Code of Criminal But in no event may the period Procedure article 11.13. begin more than 90 days after the judgment or order was signed. Notes and Comments (2) Exception for restricted appeal. Comment to 1997 change: The definition of court Subparagraph (1) does not extend below and the reference to “suing out a writ of error to the time for perfecting a restricted the court of appeals,” are deleted as those terms are no appeal. longer used in these rules. Other changes are made. (b) Procedure to Gain Additional Time. The Rule 4. Time and Notice Provisions procedure to gain additional time is governed by Texas Rule of Civil Procedure 306a.5. 4.1. Computing Time (c) The Court’s Order. After hearing the motion, (a) In General. The day of an act, event, or the trial court must sign a written order that default after which a designated period finds the date when the party or the party’s begins to run is not included when computing attorney first either received notice or a period prescribed or allowed by these rules, acquired actual knowledge that the judgment by court order, or by statute. The last day of or order was signed. the period is included, but if that day is a Saturday, Sunday, or legal holiday, the period 4.3. Periods Affected by Modified Judgment in extends to the end of the next day that is not Civil Case a Saturday, Sunday, or legal holiday. (a) During Plenary-Power Period. If a judgment (b) Clerk's Office Closed or Inaccessible. If the is modified in any respect while the trial court act to be done is filing a document, and if the retains plenary power, a period that, under clerk's office where the document is to be these rules, runs from the date when the filed is closed or inaccessible during regular judgment is signed will run from the date hours on the last day for filing the document, when the modified judgment is signed. the period for filing the document extends to the end of the next day when the clerk's office (b) After Plenary Power Expires. If the trial court is open and accessible. The closing or corrects or reforms the judgment under Texas inaccessibility of the clerk's office may be Rule of Civil Procedure 316 after expiration proved by a certificate of the clerk or counsel, of the trial court’s plenary power, all periods by a party's affidavit, or by other satisfactory provided in these rules that run from the date proof, and may be controverted in the same the judgment is signed run from the date the manner. corrected judgment is signed for complaints that would not apply to the original judgment. 4.2. No Notice of Trial Court’s Judgment in Civil Case 4.4. Periods Affected When Process Served by Publication (a) Additional Time to File Documents. If process was served by publication and if a (1) In general. If a party affected by a motion for new trial was filed under Texas Rule of judgment or other appealable order Civil Procedure 329 more than 30 days after the has not — within 20 days after the judgment was signed, a period that, under these rules, judgment or order was signed — runs from the date when the judgment is signed will be either received the notice required computed as if the judgment were signed on the date
2 when the motion for new trial was filed. Notes and Comments 4.5. No Notice of Judgment or Order of Appellate Comment to 1997 change: This is former Rule 5. Court; Effect on Time to File Certain Documents. Paragraph 4.1(b) is added. Former paragraph (b)(1) is omitted because it is covered by other provisions of (a) Additional Time to File Documents. A party the rules. Former paragraphs (b)(2) and (b)(3) are may move for additional time to file a omitted because they are duplicative of provisions in motion for rehearing or en banc the Rules of Civil Procedure, which prescribes the reconsideration in the court of appeals, a applicable procedure. The phrase “modified, corrected petition for review, or a petition for or reformed in any respect” in paragraph 4.3(a) is discretionary review, if the party did not— changed to “modified in any respect,” but no change until after the time expired for filing the in substance is intended. Former subdivision (e) document—either receive notice of the regarding notice of judgment by the court of appeals is judgment or order from the clerk or acquire moved to Rule 12.6. Subdivision 4.5 is revised and actual knowledge of the rendition of the now makes clear that the court must grant the motion judgment or order. for additional time if the court finds that the party did not receive the notice or acquire actual knowledge in (b) Procedure to Gain Additional Time. The time. Other changes are made throughout the rule. motion must state the earliest date when the party or the party's attorney received notice Comment to 2002 change: Subdivision 4.5 is or acquired actual knowledge that the amended to clarify that a party may obtain additional judgment or order had been rendered. The time to file documents when the party fails to receive motion must be filed within 15 days of that notice not only of an appellate court judgment, but of date but in no event more than 90 days after an appellate court order - such as one denying a motion the date of the judgment or order. for rehearing - that triggers the appeal period.
(c) Where to File. Comment to 2007 change: Subdivision 4.5 is changed, consistent with other changes in the rules, to (1) A motion for additional time to file a specifically address a motion for en banc motion for rehearing or en banc reconsideration and treat it as a motion for rehearing. reconsideration in the court of appeals must be filed in and ruled on by the court of appeals in which the case is pending. Rule 5. Fees in Civil Cases
(2) A motion for additional time to file a A party who is not excused by statute or these petition for review must be filed in and rules from paying costs must pay — at the time an item ruled on by the Supreme Court. is presented for filing — whatever fees are required by statute or Supreme Court order. The appellate court (3) A motion for additional time to file a may enforce this rule by any order that is just. petition for discretionary review must be filed in and ruled on by the Court of Notes and Comments Criminal Appeals. Comment to 1997 change: This is former Rule 13. The rule is simplified. The fees an appellate court may (d) Order of the Court. If the court finds that charge in a civil case are now specified by Supreme the motion for additional time was Court order. timely filed and the party did not— within the time for filing the motion for Rule 6. Representation by Counsel rehearing or en banc reconsideration, petition for review, or petition for 6.1. Lead Counsel discretionary review, as the case may be—receive the notice or have actual (a) For Appellant. Unless another attorney is knowledge of the judgment or order, the designated, lead counsel for an appellant is court must grant the motion. The time the attorney whose signature first appears on for filing the document will begin to run the notice of appeal. on the date when the court grants the motion. (b) For a Party Other Than Appellant. Unless
3 another attorney is designated, lead counsel being sent notices, copies of documents, or for a party other than an appellant is the other communications, that attorney may file attorney whose signature first appears on the a nonrepresentation notice in the appellate first document filed in the appellate court on court. The notice must: that party's behalf. (1) state that the attorney is not representing (c) How to Designate. The original or a new lead the party on appeal; counsel may be designated by filing a notice stating that attorney's name, mailing address, (2) state that the court and other counsel telephone number, fax number, if any, email should communicate directly with the address, and State Bar of Texas identification party in the future; number. If a new lead counsel is being designated, both the new attorney and either (3) give the party's name and last known the party or the former lead counsel must sign address and telephone number; and the notice. (4) be signed by the party. 6.2. Appearance of Other Attorneys (b) Appointed Counsel. In a criminal case, an An attorney other than lead counsel may file a attorney appointed by the trial court to notice stating that the attorney represents a specified represent an indigent party cannot file a party to the proceeding and giving that attorney's nonrepresentation notice. name, mailing address, telephone number, fax number, if any, and State Bar of Texas identification 6.5. Withdrawal number. The clerk will note on the docket the attorney's appearance. When a brief or motion is filed, An appellate court may, on appropriate terms and the clerk will note on the docket the name of each conditions, permit an attorney to withdraw from attorney, if not already noted, who appears on the representing a party in the appellate court. document. (a) Contents of Motion. A motion for leave to 6.3. To Whom Communications Sent withdraw must contain the following:
Any notice, copies of documents filed in an (1) a list of current deadlines and settings in appellate court, or other communications must be sent the case; to: (2) the party's name and last known address (a) each party’s lead counsel on appeal; and telephone number;
(b) a party’s lead counsel in the trial court if: (3) a statement that a copy of the motion was delivered to the party; and (1) that party was represented by counsel in the trial court; (4) a statement that the party was notified in writing of the right to object to the (2) lead counsel on appeal has not yet been motion. designated for that party; and (b) Delivery to Party. The motion must be (3) lead counsel in the trial court has not delivered to the party in person or mailed — filed a nonrepresentation notice or been both by certified and by first-class mail — to allowed to withdraw; the party at the party's last known address.
(c) a party if the party is not represented by (c) If Motion Granted. If the court grants the counsel. motion, the withdrawing attorney must immediately notify the party, in writing, of 6.4. Nonrepresentation Notice any deadlines or settings that the attorney knows about at the time of withdrawal but (a) In General. If, in accordance with paragraph that were not previously disclosed to the 6.3(b), the lead counsel in the trial court is party. The withdrawing attorney must file a
4 copy of that notice with the court clerk. appellate court may order substitution on any party's motion at any time. (d) Exception for Substitution of Counsel. If an attorney substitutes for a withdrawing 7.2. Public Officers attorney, the motion to withdraw need not comply with (a) but must state only the (a) Automatic Substitution of Officer. When a substitute attorney’s name, mailing address, public officer is a party in an official capacity telephone number, fax number, if any, and to an appeal or original proceeding, and if State Bar of Texas identification number. that person ceases to hold office before the The withdrawing attorney must comply with appeal or original proceeding is finally (b) but not (c). disposed of, the public officer’s successor is automatically substituted as a party if 6.6. Agreements of Parties or Counsel appropriate. Proceedings following substitution are to be in the name of the To be enforceable, an agreement of parties or their substituted party, but any misnomer that does counsel concerning an appellate court proceeding not affect the substantial rights of the parties must be in writing and signed by the parties or their may be disregarded. Substitution may be counsel. Such an agreement is subject to any appellate ordered at any time, but failure to order court order necessary to ensure that the case is substitution of the successor does not affect properly presented. the substitution.
Notes and Comments (b) Abatement. If the case is an original Comment to 1997 change: Former Rules 7 and proceeding under Rule 52, the court must 57 are merged and substantially revised. Former Rule abate the proceeding to allow the successor to 8 regarding agreements of counsel is included here as reconsider the original party's decision. In all subdivision 6.6 and the requirement that an agreement other cases, the suit will not abate, and the be filed and included in the record is deleted. successor will be bound by the appellate court's judgment or order as if the successor were the original party. Rule 7. Substituting Parties Notes and Comments 7.1. Parties Who Are Not Public Officers Comment to 1997 change: This is former Rule 9. Former subdivision (a) regarding death of a party in a (a) Death of a Party. civil case is now subparagraph 7.1(a)(1). Former subdivision (b) regarding death of a party in a criminal (1) Civil Cases. If a party to a civil case dies case is now subparagraph 7.1(a)(2). Former after the trial court renders judgment but subdivision (c) regarding separation of office by before the case has been finally disposed public officers is now subdivision 7.2. Former of on appeal, the appeal may be paragraph (c)(3) regarding a successor's liability for perfected, and the appellate court will costs is omitted as unnecessary. Former subdivision proceed to adjudicate the appeal as if all (d) regarding substitution for other causes is now parties were alive. The appellate court's paragraph 7.1(b). Subdivision 7.2 is revised to make it judgment will have the same force and applicable to all cases in which a public officer is a effect as if rendered when all parties party, and to make substitution automatic if were living. The decedent party's name appropriate. may be used on all papers.
(2) Criminal Cases. If the appellant in a Rule 8. Bankruptcy in Civil Cases criminal case dies after an appeal is perfected but before the appellate court 8.1. Notice of Bankruptcy issues the mandate, the appeal will be permanently abated. Any party may file a notice that a party is in bankruptcy. The notice must contain: (b) Substitution for Other Reasons. If substitution of a party in the appellate court is (a) the bankrupt party’s name; necessary for a reason other than death, the
5 (b) the court in which the bankruptcy proceeding is pending; 9.1. Signing
(c) the bankruptcy proceeding’s style and case (a) Represented Parties. If a party is represented number; and by counsel, a document filed on that party's behalf must be signed by at least one of the (d) the date when the bankruptcy petition was party's attorneys. For each attorney whose filed. Comment to 2008 change: The name appears on a document as representing requirement that the bankruptcy notice that party, the document must contain that contain certain pages of the bankruptcy attorney's State Bar of Texas identification petition is eliminated, given that electronic number, mailing address, telephone number, filing is now prevalent in bankruptcy courts fax number, if any, and email address. and bankruptcy petitions are available through the federal PACER system. (b) Unrepresented Parties. A party not represented by counsel must sign any 8.2. Effect of Bankruptcy document that the party files and give the party’s mailing address, telephone number, A bankruptcy suspends the appeal and all periods fax number, if any, and email address. in these rules from the date when the bankruptcy petition is filed until the appellate court reinstates or (c) Electronic Signatures. A document that severs the appeal in accordance with federal law. A is electronically served, filed, or issued by a period that began to run and had not expired at the time court or clerk is considered signed if the the proceeding was suspended begins anew when the document includes: proceeding is reinstated or severed under 8.3. A document filed by a party while the proceeding is (1) a "/s/" and name typed in the space where suspended will be deemed filed on the same day, but the signature would otherwise appear, after, the court reinstates or severs the appeal and will unless the document is notarized or not be considered ineffective because it was filed sworn; or while the proceeding was suspended. (2) an electronic image or scanned image of 8.3. Motion to Reinstate or Sever Appeal the signature. Suspended by Bankruptcy
(a) Motion to Reinstate. If a case has been 9.2. Filing suspended by a bankruptcy filing, a party may move that the appellate court reinstate (a) With Whom. A document is filed in an the appeal if permitted by federal law or the appellate court by delivering it to: bankruptcy court. If the bankruptcy court has lifted or terminated the stay, a certified copy (1) the clerk of the court in which the of the order must be attached to the motion. document is to be filed; or
(b) Motion to Sever. A party may move to sever (2) a justice or judge of that court who is the appeal with respect to the bankrupt party willing to accept delivery. A justice or and to reinstate the appeal with respect to the judge who accepts delivery must note on other parties. The motion must show that the the document the date and time of case is severable and must comply with delivery, which will be considered the applicable federal law regarding severance of time of filing, and must promptly send it a bankrupt party. The court may proceed to the clerk. under this paragraph on its own initiative. (b) Filing by Mail. Notes and Comments (1) Timely Filing. A document received Comment to 1997 change: This is a new rule. within ten days after the filing deadline is considered timely filed if:
Rule 9. Documents Generally (A) it was sent to the proper clerk by
6 United States Postal Service or a particular case. commercial delivery service; (4) Timely Filing. Unless a document must (B) it was placed in an envelope or be filed by a certain time of day, a wrapper properly addressed and document is considered timely filed if it stamped; and is electronically filed at any time before midnight (in the court's time zone) on the (C) it was deposited in the mail or filing deadline. An electronically filed delivered to a commercial delivery document is deemed filed when service on or before the last day for transmitted to the filing party's electronic filing. filing service provider, except:
(2) Proof of Mailing. Though it may (A) if a document is transmitted on a consider other proof, the appellate court Saturday, Sunday, or legal holiday, will accept the following as conclusive it is deemed filed on the next day proof of the date of mailing: that is not a Saturday, Sunday, or legal holiday; and (A) a legible postmark affixed by the United States Postal Service; (B) if a document requires a motion and an order allowing its filing, the (B) a receipt for registered or certified document is deemed filed on the mail if the receipt is endorsed by the date the motion is granted. United States Postal Service; (5) Technical Failure. If a document is (C) a certificate of mailing by the United untimely due to a technical failure or a States Postal Service; or system outage, the filing party may seek appropriate relief from the court. (D) a receipt endorsed by the commercial delivery service. (6) Confirmation of Filing. The electronic filing manager will send a filing (c) Electronic Filing. confirmation notice to the filing party.
(1) Requirement. Attorneys in civil cases (7) Electronic Notices From the Court. The must electronically file documents. clerk may send notices, orders, or other Attorneys in criminal cases must communications about the case to the electronically file documents except for party electronically. A court seal may be good cause shown in a motion filed in electronic. the appellate court. Unrepresented parties in civil and criminal cases may 9.3. Number of Copies electronically file documents, but it is not required. (a) Courts of Appeals.
(2) Mechanism. Electronic filing must be (1) Document Filed in Paper Form. If a done through the electronic filing document is not electronically filed, a manager established by the Office of party must file the original and one Court Administration and an electronic unbound copy of the document unless filing service provider certified by the otherwise required by local rule. The Office of Court Administration. unbound copy of an appendix must contain a separate page before each (3) Exceptions. Documents filed under seal, document and must not include tabs that subject to a pending motion to seal, or to extend beyond the edge of the page. which access is otherwise restricted by law or court order must not be (2) Electronically Filed Document. electronically filed. For good cause, an Unless required by local rule, a party appellate court may permit a party to file need not file a paper copy of an other documents in paper form in a electronically filed document.
7 inch margins on both sides and at the top and (b) Supreme Court and Court of Criminal bottom. Appeals. (d) Spacing. Text must be double-spaced, but (1) Document Filed in Paper Form. If a footnotes, block quotations, short lists, and document is not electronically filed, a issues or points of error may be single- party must file the original and 11 copies spaced. of any document addressed to either the Supreme Court or the Court of Criminal (e) Typeface. A document produced on a Appeals, except that in the Supreme computer must be printed in a conventional Court only an original and one copy must typeface no smaller than 14-point except for be filed of any motion, response to the footnotes, which must be no smaller than 12- motion, and reply in support of the point. A typewritten document must be motion, and in the Court of Criminal printed in standard 10-character-per-inch Appeals, only the original must be filed (cpi) monospaced typeface. of a motion for extension of time or a response to the motion, or a pleading (f) Binding and Covering. A paper document under Code of Criminal Procedure must be bound so as to ensure that it will not article 11.07. lose its cover or fall apart in regular use. A paper document should be stapled once in the (2) Electronically Filed Document. Paper top left-hand corner or be bound so that it will copies of each document that is lie flat when open. A paper petition or brief electronically filed with the Supreme should have durable front and back covers Court or the Court of Criminal Appeals which must not be plastic or be red, black, or must be mailed or hand- delivered to the dark blue. Supreme Court or the Court of Criminal Appeals, as appropriate, within three (g) Contents of Cover. A document's front cover, business days after the document is if any, must contain the case style, the case electronically filed. The number of number, the title of the document being filed, paper copies required shall be the name of the party filing the document, determined, respectively, by order of the and the name, mailing address, telephone Supreme Court or the Court of Criminal number, fax number, if any, email address, Appeals. and State Bar of Texas identification number of the lead counsel for the filing party. If a (c) Exception for Record. Only the original party requests oral argument in the court of record need be filed in any proceeding. appeals, the request must appear on the front cover of that party’s first brief. 9.4. Form (h) Appendix and Original Proceeding Record. Except for the record, a document filed with an A appendix may be bound either with the appellate court, including a paper copy of an document to which it is related or separately. electronically filed document, must — unless the court If separately bound, the appendix must accepts another form in the interest of justice — be in comply with paragraph (f). A paper record in the following form: an original proceeding or a paper appendix must be tabbed and indexed. An (a) Printing. A document may be produced by electronically filed record in an original standard typographic printing or by any proceeding or an electronically filed duplicating process that produces a distinct appendix that includes more than one item black image. Printing must be on one side of must contain bookmarks to assist in locating the paper. each item.
(b) Paper Type and Size. The paper on which (i) Length. a document is produced must be 8a/2 by 11 inches, white or nearly white, and opaque. (1) Contents Included and Excluded. In calculating the length of a document, (c) Margins. Documents must have at least one- every word and every part of the
8 document, including headings, reply to a response to a petition in an footnotes, and quotations, must be original proceeding in the Supreme counted except the following: caption, Court, and a reply to a response to a identity of parties and counsel, statement petition for discretionary review in regarding oral argument, table of the Court of Criminal Appeals: contents, index of authorities, statement 2,400 words if computer-generated, of the case, statement of issues and 8 pages if not. presented, statement of jurisdiction, statement of procedural history, (3) Certificate of Compliance. A computer- signature, proof of service, certification, generated document that is subject to a certificate of compliance, and appendix. word limit under this rule must include a certificate by counsel or an (2) Maximum Length. The documents unrepresented party stating the number listed below must not exceed the of words in the document. The person following limits: certifying may rely on the word count of the computer program used to prepare (A) A brief and response in a direct the document. appeal to the Court of Criminal Appeals in a case in which the death (4) Extensions. A court may, on motion, penalty has been assessed: 37,500 permit a document that exceeds the words if computer- generated, and prescribed limit. 125 pages if not. (j) Electronically Filed Documents. An (B) A brief and response in an appellate electronically filed document must: court (other than a brief under subparagraph (A)) and a petition (1) be in text-searchable portable and response in an original document format (PDF); proceeding in the court of appeals: 15,000 words if computer- (2) be directly converted to PDF generated, and 50 pages if not. In a rather than scanned, if possible; civil case in the court of appeals, the aggregate of all briefs filed by a (3) not be locked; party must not exceed 27,000 words if computer- generated, and 90 (4) be combined with any appendix pages if not. into one computer file, unless that file would exceed the size limit (C) A reply brief in an appellate court prescribed by the electronic filing and a reply to a response to a manager; and petition in an original proceeding in the court of appeals: 7,500 words if (5) otherwise comply with the computer- generated, and 25 pages Technology Standards set by the if not. Judicial Committee on Information Technology and approved by the (D) A petition and response in an Supreme Court. original proceeding in the Supreme Court, a petition for review and (k) Nonconforming Documents. If a document response in the Supreme Court, a fails to conform with these rules, the court petition for discretionary review and may strike the document or identify the error response in the Court of Criminal and permit the party to resubmit the Appeals, and a motion for rehearing document in a conforming format by a and response in an appellate court: specified deadline. 4,500 words if computer- generated, and 15 pages if not. 9.5. Service
(E) A reply to a response to a petition (a) Service of All Documents Required. At or for review in the Supreme Court, a before the time of a document's filing, the
9 filing party must serve a copy on all parties to filed promptly. the proceeding. Service on a party represented by counsel must be made on that (e) Certificate Requirements. A certificate of party’s lead counsel. Except in original service must be signed by the person who proceedings, a party need not serve a copy of made the service and must state: the record. (1) the date and manner of service; (b) Manner of Service. (2) the name and address of each person (1) Documents Filed Electronically. A served; and document filed electronically under Rule 9.2 must be served electronically (3) if the person served is a party's attorney, through the electronic filing manager if the name of the party represented by that the email address of the party or attorney attorney. to be served is on file with the electronic filing manager. If the email address of 9.6. Communications With the Court the party or attorney to be served is not on file with the electronic filing Parties and counsel may communicate with the manager, the document may be served appellate court about a case only through the clerk. on that party or attorney under subparagraph (2). 9.7. Adoption by Reference
(2) Documents Not Filed Electronically. A Any party may join in or adopt by reference all or document that is not filed electronically any part of a brief, petition, response, motion, or other may be served in person, by mail, by document filed in an appellate court by another party commercial delivery service, by fax, or in the same case. by email. Personal service includes delivery to any responsible person at the 9.8. Protection of Minor's Identity in Parental- office of the lead counsel for the party Rights Termination Cases and Juvenile Court served. Cases
(c) When Complete. (a) Alias Defined. For purposes of this rule, an alias means one or more of a person's initials (1) Service by mail is complete on mailing. or a fictitious name, used to refer to the person. (2) Service by commercial delivery service is complete when the document is placed (b) Parental-Rights Termination Cases. In an in the control of the delivery service. appeal or an original proceeding in an appellate court, arising out of a case in which (3) Service by fax is complete on receipt. the termination of parental rights was at issue: (4) Electronic service is complete on transmission of the document to the (1) except for a docketing statement, in all serving party's electronic filing service papers submitted to the court, including provider. The electronic filing manager all appendix items submitted with a will send confirmation of service to the brief, petition, or motion: serving party. (A) a minor must be identified only by (d) Proof of Service. A document presented for an alias unless the court orders filing must contain a proof of service in the otherwise; form of either an acknowledgment of service by the person served or a certificate of (B) the court may order that a minor's service. Proof of service may appear on or be parent or other family member be affixed to the filed document. The clerk may identified only by an alias if permit a document to be filed without proof necessary to protect a minor's of service, but will require the proof to be identity; and
10 when the underlying suit was filed. (C) all documents must be redacted accordingly; (b) Filing of Documents Containing Sensitive Data Prohibited. Unless the inclusion of (2) the court must, in its opinion, use an alias sensitive data is specifically required by a to refer to a minor, and if necessary to statute, court rule, or administrative protect the minor's identity, to the regulation, an electronic or paper document minor's parent or other family member. containing sensitive data may not be filed with a court unless the sensitive data is (c) Juvenile Court Cases. In an appeal or an redacted, except for the record in an appeal original proceeding in an appellate court, under Section Two. arising out of a case under Title 3 of the Family Code: (c) Redaction of Sensitive Data; Retention Requirement. Sensitive data must be redacted (1) except for a docketing statement, in all by using the letter "X" in place of each papers submitted to the court, including omitted digit or character or by removing the all appendix items submitted with a sensitive data in a manner indicating that the brief, petition, or motion: data has been redacted. The filing party must retain an unredacted version of the filed (A) a minor must be identified only by document during the pendency of the appeal an alias; and any related proceedings filed within six months of the date the judgment is signed. (B) a minor's parent or other family member must be identified only by (d) Notice to Clerk. If a document must an alias; and contain sensitive data, the filing party must notify the clerk by: (C) all documents must be redacted accordingly; (1) designating the document as containing sensitive data when the (2) the court must, in its opinion, use an alias document is electronically filed; or to refer to a minor and to the minor's parent or other family member. (2) if the document is not electronically filed, by including, on the upper left- (d) No Alteration of Appellate Record. Nothing hand side of the first page, the phrase: in this rule permits alteration of the original "NOTICE: THIS DOCUMENT appellate record except as specifically CONTAINS SENSITIVE DATA." authorized by court order. (e) Restriction on Remote Access. Documents 9.9 Privacy Protection for Documents Filed in that contain unredacted sensitive data in Civil Cases. violation of this rule must not be posted on the Internet. (a) Sensitive Data Defined. Sensitive data consists of: Notes and Comments
(1) a driver's license number, passport Comment to 1997 change: This is former Rule number, social security number, tax 4. Subdivision 9.4, prescribing the form of documents identification number or similar filed in the appellate courts, is changed and the form government-issued personal to be used is stated in significantly more detail. identification number; Former subdivisions (f) and (g), regarding service of documents, are merged into subdivision 9.5. Former (2) a bank account number, credit card Rule 6 is included as subdivision 9.6, but no number, or other financial account substantive change is made. Other changes are made number; and throughout the rule. Electronic filing is authorized by §§ 51.801-.807 of the Government Code. (3) a birth date, a home address, and the name of any person who was a minor Comment to 2002 change: The change [to Rule
11 9.5(a)] clarifies that the filing party must serve a copy appellate courts, effective January 1, 2014. In of the document filed on all other parties, not only in addition, Rule 9.9 is added to provide privacy an appeal or review, but in original proceedings as protection for all documents, both paper and well. The rule applies only to filing parties. Thus, electronic, filed in civil cases in appellate courts. when the clerk or court reporter is responsible for filing the record, as in cases on appeal, a copy need not 9.10 Privacy Protection for Documents Filed in be served on the parties. The rule for original civil Criminal Cases. proceedings, in which a party is responsible for filing the record, is stated in subdivision 52.7. (a) Sensitive Data Defined. Sensitive data consists of: Subdivision 9.7 is added to provide express authorization for the practice of adopting by reference (1) a driver's license number, passport all or part of another party's filing. number, social security number, tax identification number or similar Comment to 2008 change: Subdivision 9.3 is government-issued personal amended to reduce the number of copies of a motion identification number; for extension of time or response filed in the Supreme Court. Subdivision 9.8 is new. To protect the privacy (2) bank account number, credit card of minors in suits affecting the parent-child number, and other financial account relationship (SAPCR), including suits to terminate number; parental rights, Section 109.002(d) of the Family Code authorizes appellate courts, in their opinions, to (3) a birth date, a home address, and the identify parties only by fictitious names or by initials. name of any person who was a minor at Similarly, Section 56.01(j) of the Family Code the time the offense was committed. prohibits identification of a minor or a minor's family in an appellate opinion related to juvenile court (b) Redacted Filings. Unless a court orders proceedings. But as appellate briefing becomes more otherwise, an electronic or paper filing with widely available through electronic media sources, the court, including the contents of any appellate courts' efforts to protect minors' privacy by appendices, must not contain sensitive data. disguising their identities in appellate opinions may be defeated if the same children are fully identified in (c) Exemptions from the Redaction Requirement. briefs and other court papers available to the public. The redaction requirement does not apply to The rule provides protection from such disclosures. the following: Any fictitious name should not be pejorative or suggest the person's true identity. The rule does not (1) A court filing that is related to a criminal limit an appellate court's authority to disguise parties' matter or investigation and that is identities in appropriate circumstances in other cases. prepared before the filing of a criminal Although appellate courts are authorized to enforce the charge or is not filed as part of any rule's provisions requiring redaction, parties and amici docketed criminal case; curiae are responsible for ensuring that briefs and other papers submitted to the court fully comply with (2) An arrest or search warrant; the rule. (3) A charging document and an affidavit Comment to 2012 Change: Rule 9 is revised to filed in support of any charging consolidate all length limits and establish word limits document; for documents produced on a computer. All documents produced on a computer must comply with (4) A defendant’s date of birth; the word limits. Page limits are retained for documents that are typewritten or otherwise not produced on a (5) A defendant’s address; and computer. (6) Any government issued number Comment to 2013 Change: Rule 9 is revised to intended to identify the defendant incorporate rules for electronic filing, in accordance associated with a criminal filing, except with the Supreme Court's order - Misc. Docket No. 12- for the defendant’s social security 9206, amended by Misc. Docket Nos. 13-9092 and 13- number or driver’s license number. 9164 - mandating electronic filing in civil cases in
12 (d) Redaction procedures. Sensitive data must be sealed container if the sealed material is filed redacted by using the letter “X” in place of in paper form, or be the first document that each omitted digit or character or by appears if filed in electronic form. Sealed removing the sensitive data in a manner portions of the clerk's and reporter's records indicating that the data has been redacted. should be clearly marked and separated from The filer must retain an unredacted version of unsealed portions and tendered as separate the filed document during the pendency of records, whether in paper form or electronic the appeal and any related proceedings filed form. Sealed material shall not be available within three years of the date the judgment is either on the internet or in other form without signed. If a district court clerk or appellate court order. court clerk discovers unredacted sensitive data in the record, the clerk shall notify the (h) Waiver of Protection of Identifiers. A person parties and seek a ruling from the court. waives the protection of this rule as to a person’s own information by filing it without (e) Certification. The filing of a document redaction and not under seal. constitutes a certification by the filer that the document complies with paragraphs (a) and Rule 10. Motions in the Appellate Courts (b) of this rule. 10.1. Contents of Motions; Response (f) Reference List. If a filer believes any information described in paragraph (a) of this (a) Motion. Unless these rules prescribe another rule is essential to a document or that the form, a party must apply by motion for an document would be confusing without the order or other relief. The motion must: information, the filer may submit the information to the court in a reference list that (1) contain or be accompanied by any matter is in paper form and under seal. The reference specifically required by a rule governing list must specify an appropriate identifier that such a motion; corresponds uniquely to each item listed. Any reference in the document to a listed (2) state with particularity the grounds on identifier will be construed to refer to the which it is based; corresponding item of information. If the filer provides a reference list pursuant to this rule, (3) set forth the order or relief sought; the front page of the document containing the redacted information must indicate that the (4) be served and filed with any brief, reference list has been, or will be, provided. affidavit, or other paper filed in support On its own initiative, the court may order a of the motion; and sealed reference list in any case. (5) in civil cases, except for motions for (g) Sealed materials. Materials that are required rehearing and en banc reconsideration, by statute to be sealed, redacted, or kept contain or be accompanied by a confidential, such as the items set out in certificate stating that the filing party Articles 35.29 (Personal Information About conferred, or made a reasonable attempt Jurors), 38.45 (Evidence Depicting or to confer, with all other parties about the Describing Abuse of or Sexual Conduct by merits of the motion and whether those Child or Minor), and 42.12, § 9(j), must be parties oppose the motion. treated in accordance with the pertinent statutes and shall not be publicly available on (b) Response. A party may file a response to a the internet. A court may also order that a motion at any time before the court rules on document be filed under seal in paper form or the motion or by any deadline set by the electronic form, without redaction. The court court. The court may determine a motion may later unseal the document or order the before a response is filed. filer to provide a redacted version of the document for the public record. If a court 10.2. Evidence on Motions orders material sealed, whether it be sensitive data or other materials, the court's sealing A motion need not be verified unless it depends order must be affixed to the outside of the on the following types of facts, in which case the
13 motion must be supported by affidavit or other Record. A motion relating to informalities in satisfactory evidence. The types of facts requiring the manner of bringing a case into court must proof are those that are: be filed within 30 days after the record is filed in the court of appeals. The objection, if (a) not in the record; waivable, will otherwise be deemed waived.
(b) not within the court's knowledge in its official (b) Motions to Extend Time. capacity; and (1) Contents of Motion in General. All (c) not within the personal knowledge of the motions to extend time, except a motion attorney signing the motion. to extend time for filing a notice of appeal, must state: 10.3. Determining Motions (A) the deadline for filing the item in (a) Time for Determination. A court should not question; hear or determine a motion until 10 days after the motion was filed, unless: (B) the length of the extension sought;
(1) the motion is to extend time to file a (C) the facts relied on to reasonably brief, a petition for review, or a explain the need for an extension; petition for discretionary review; and
(2) the motion states that the parties have (D) the number of previous extensions conferred and that no party opposes the granted regarding the item in motion; or question.
(3) the motion is an emergency. (2) Contents of Motion to Extend Time to File Notice of appeal. A motion to (b) Reconsideration. If a motion is determined extend the time for filing a notice of prematurely, any party adversely affected appeal must: may request the court to reconsider its order. (A) comply with (1)(A) and (C); 10.4. Power of Panel or Single Justice or Judge to Entertain Motions (B) identify the trial court;
(a) Single Justice. In addition to the authority (C) state the date of the trial court’s expressly conferred by these rules or by law, judgment or appealable order; and a single justice or judge of an appellate court may grant or deny a request for relief that (D) state the case number and style of these rules allow to be sought by motion. But the case in the trial court. in a civil case, a single justice should not do the following: (3) Contents of motion to extend time to file petition for review or petition for (1) act on a petition for an extraordinary discretionary review. A motion to writ; or extend time to file a petition for review or petition for discretionary review must (2) dismiss or otherwise determine an also specify: appeal or a motion for rehearing. (A) the court of appeals; (b) Panel. An appellate court may provide, by order or rule, that a panel or the full court (B) the date of the court of appeals’ must act on any motion or class of motions. judgment;
10.5. Particular Motions (C) the case number and style of the case in the court of appeals; and (a) Motions Relating to Informalities in the
14 (D) the date every motion for rehearing or en banc reconsideration was (c) disclose the source of any fee paid or to be filed, and either the date and nature paid for preparing the brief; and of the court of appeals' ruling on the motion, or that it remains pending. (d) certify that copies have been served on all parties. (c) Motions to Postpone Argument. Unless all parties agree, or unless sufficient cause is Notes and Comments apparent to the court, a motion to postpone argument of a case must be supported by Comment to 1997 change: This is former Rule 20. sufficient cause. The rule is rewritten and now requires disclosure of the identity of the person or entity on whose behalf the Notes and Comments brief is filed, and the source of any fee paid.
Comment to 1997 change: This is former Rule 19. Comment to 2002 change: The change expressly Under subdivision 10.1, a response may be filed at any recognizes that a court may refuse to consider an time before the court rules on the motion. The amicus curiae brief for good cause. provision of former subdivision (b) regarding docketing motions is incorporated in Rule 12.2. The provision of former subdivision (b) for noting Rule 12. Duties of Appellate Clerk attorneys’ names on the docket is incorporated in Rule 6.2. Former subdivision (c), requiring the clerk to 12.1. Docketing the Case send notices of the filing of motions is deleted as unnecessary because the parties must serve all motions On receiving a copy of the notice of appeal, the under Rule 9.5. Subdivision 10.2 is amended to petition for review, the petition for discretionary eliminate the requirement of an oath where the facts review, the petition in an original proceeding, or a are within the personal knowledge of the attorney. certified question, the appellate clerk must: Subdivision 10.5 is new and incorporates the provisions of other rules concerning motions, as (a) endorse on the document the date of receipt; follows: 10.5(a) from former Rule 71; 10.5(b) from former Rules 73, 130(d), and 160; and 10.5(c) from (b) collect any filing fee; former Rule 70. Other changes are made. (c) docket the case; Comment to 2008 change: It happens so infrequently that a non-movant does not oppose a (d) notify all parties of the receipt of the motion for rehearing or en banc reconsideration that document; and such motions are excepted from the certificate-of- conference requirement in Subdivision 10.1(a)(5). (e) if the document filed is a petition for review Subdivision 10.2 is revised to clarify that facts filed in the Supreme Court, notify the court supporting a motion need not be verified by the filer if of appeals clerk of the filing of the petition. supporting evidence is in the record, the facts are known to the court, or the filer has personal knowledge 12.2. Docket Numbers of them. Subdivision 10.5(b)(3)(D) is added. The clerk must put the case's docket number on each item received in connection with the case and Rule 11. Amicus Curiae Briefs must put the docket number on the envelope in which the record is stored. An appellate clerk may receive, but not file, an amicus curiae brief. But the court for good cause may (a) Numbering System. Each case filed in a court refuse to consider the brief and order that it be of appeals must be assigned a docket number returned. An amicus curiae brief must: consisting of the following four parts, separated by hyphens: (a) comply with the briefing rules for parties; (1) the number of the court of appeals (b) identify the person or entity on whose behalf district; the brief is tendered;
15 (2) the last two digits of the year in which clerk’s office; the case is filed; (g) if the court allows an original document or (3) the number assigned to the case; and exhibit to be taken by a party and it is not returned, the court may accept the opposing (4) the designation “CV” for a civil case or party’s statement concerning the document’s “CR” for a criminal case. or exhibit’s nature and contents;
(b) Numbering Order. Each case must be (h) withdrawn material must not be removed docketed in the order of its filing. from the court’s jurisdiction; and
(c) Multiple Notices of Appeal. All notices of (i) the court may, on the motion of any party or appeal filed in the same case must be given its own initiative, modify any of these the same docket number. conditions.
(d) Appeals Not Yet Filed. A motion relating to 12.5. Clerk's Duty to Account an appeal that has been perfected but not yet filed must be docketed and assigned a docket The clerk of an appellate court who receives number that will also be assigned to the money due another court must promptly pay the appeal when it is filed. money to the court to whom it is due. This rule is enforceable by the Supreme Court. 12.3. Custody of Papers 12.6. Notices of Court’s Judgments and Orders The clerk must safeguard the record and every other item filed in a case. If the record or any part of it In any proceeding, the clerk of an appellate court or any other item is missing, the court will make an must promptly send a notice of any judgment, mandate order for the replacement of the record or item that is or other court order to all parties to the proceeding. just under the circumstances. Notes and Comments 12.4. Withdrawing Papers Comment to 1997 change: This is former Rule 18. The clerk may permit the record or other filed Former subdivision (b), regarding the preparation of item to be taken from the clerk’s office at any time, on the record, is moved to the order concerning the the following conditions: preparation of the appellate record. Former Rule 14, which is revised and simplified, is relocated here as (a) the clerk must have a receipt for the record or subdivision 12.5. Subdivision 12.6, requiring the clerk item; to send a notice of any order or judgment of an appellate court, is added. Other changes are made. (b) the clerk should make reasonable conditions to ensure that the withdrawn record or item is Comment to 2002 change: Subdivision 12.6 is preserved and returned; amended to require the clerk to notify the parties of all of the court's rulings, including the mandate. (c) the clerk may demand the return of the record or item at any time; Rule 13. Court Reporters and Court Recorders (d) after the case is submitted to the court and before the court’s decision, the record cannot 13.1. Duties of Court Reporters and Recorders be withdrawn; The official court reporter or court recorder must: (e) after the court’s decision, the losing party must be given priority in withdrawing the (a) unless excused by agreement of the parties, record; attend court sessions and make a full record of the proceedings; (f) the clerk may not allow original documents filed under Rule 34.5(f) or original exhibits (b) take all exhibits offered in evidence during a filed under Rule 34.6(g) to be taken from the proceeding and ensure that they are marked;
16 before the court take preference over other work. (c) file all exhibits with the trial court clerk after a proceeding ends; 13.4. Report of Reporters
(d) perform the duties prescribed by Rules 34.6 To aid the trial court in setting priorities under and 35; and 13.3, each court reporter must give the trial court a monthly written report showing the amount and nature (e) perform other acts relating to the reporter's of the business pending in the reporter's office. A copy or recorder's official duties, as the trial court of this report must be filed with the appellate clerk of directs. each district in which the court sits.
13.2. Additional Duties of Court Recorder 13.5. Appointing Deputy Reporter
The official court recorder must also: When the official court reporter is unable to perform the duties in 13.1 or 13.2 because of illness, (a) ensure that the recording system functions press of official work, or unavoidable absence or properly throughout the proceeding and that disability, the trial court may designate a deputy a complete, clear, and transcribable recording reporter. If the court appoints a deputy reporter, that is made; person must file with the trial court clerk a document stating: (b) make a detailed, legible log of all proceedings being recorded, showing: (a) the date the deputy worked;
(1) the number and style of the case before (b) the court in which the deputy worked; and the court; (c) the number and style of the case on which the (2) the name of each person speaking; deputy worked.
(3) the event being recorded such as the voir 13.6. Filing of Notes in a Criminal Case dire, the opening statement, direct and cross- examinations, and bench When a defendant is convicted and sentenced, or conferences; is granted deferred adjudication for a felony other that a state jail felony, and does not appeal, the court (4) each exhibit offered, admitted, or reporter must — within 20 days after the time to excluded; perfect the appeal has expired — file the untranscribed notes or the original recording of the proceeding with (5) the time of day of each event; and the trial court clerk. The trial court clerk need not retain the notes beyond 15 years of their filing date. (6) the index number on the recording device showing where each event is Notes and Comments recorded; Comment to 1997 change: Former Rules 11 and (c) after a proceeding ends, file with the clerk 12 are merged. Former Rules 11(a), (c) and (d) now the original log; appear as subdivisions 13.1, 13.5 and 13.6. Former Rule 11(b) is omitted as unnecessary. The provisions (d) have the original recording stored to ensure of former Rule 12(a) are moved to Rule 35.3. Former that it is preserved and is accessible; and Rules 12(b) and (c) now appear as subdivisions 13.3 and 13.4. The rule is made to apply to court recorders (e) ensure that no one gains access to the original as well as court reporters. Paragraph 13.1(a) merges recording without the court's written order. paragraphs (a)(1) and (2) of former Rule 11, and now requires the reporter to make a record of voir dire and 13.3. Priorities of Reporters closing argument unless excused by agreement of the parties. Paragraph 13.1(b) is new, but codifies current The trial court must help ensure that the court practice. Subdivision 13.2 is new and specifies rules reporter's work is timely accomplished by setting work for electronic recording of proceedings. A provision priorities. The reporter's duties relating to proceedings requiring a deputy court reporter to file with the trial
17 court clerk a document identifying the proceedings in argument, the response should state the injury which the reporter worked is included in paragraph that will allegedly result from coverage. 13.5. Other changes are made. (c) Court May Shorten Time. The court may, in Comment to 2002 change: Subdivision 13.1(a) is the interest of justice, shorten the time for amended merely for clarification. filing a document under this rule if no party or interested person would be unduly prejudiced. Rule 14. Recording and Broadcasting Court Proceedings (d) Decision of Court. In deciding whether to allow coverage, the court may consider 14.1. Recording and Broadcasting Permitted information known ex parte to the court. The court may allow, deny, limit, or terminate An appellate court may permit courtroom coverage for any reason the court considers proceedings to be broadcast, televised, recorded, or necessary or appropriate, such as protecting photographed in accordance with this rule. the parties' rights or the dignity of the court and ensuring the orderly conduct of the 14.2. Procedure proceedings.
(a) Request to Cover Court Proceeding. 14.3. Equipment and Personnel
(1) A person wishing to broadcast, televise, The court may, among other things: record, or photograph a court proceeding must file with the court clerk a request to (a) require that a person seeking to cover a cover the proceeding. The request must proceeding demonstrate or display the state: equipment that will be used;
(A) the case style and number; (b) prohibit equipment that produces distracting sound or light; (B) the date and time when the proceeding is to begin; (c) prohibit signal lights or devices showing when equipment is operating, or require their (C) the name of the requesting person concealment; or organization; (d) prohibit moving lights, flash attachments, or (D) the type of coverage requested (for sudden lighting changes; example, televising or photographing); and (e) require the use of the courtroom's existing video, audio, and lighting systems, if any; (E) the type and extent of equipment to be used. (f) specify the placement of personnel and equipment; (2) A request to cover argument of a case must be filed no later than five days (g) determine the number of cameras to be before the date the case is set for allowed in the courtroom; and argument and must be served on all parties to the case. A request to cover any (h) require pooling of equipment if more than other proceeding must be filed no later one person wishes to cover a proceeding. than two days before the date when the proceeding is to begin. 14.4. Enforcement
(b) Response. Any party may file a response to The court may sanction a violation of this rule by the request. If the request is to cover measures that include barring a person or organization argument, the response must be filed no later from access to future coverage of proceedings in that than two days before the date set for court for a defined period. argument. If a party objects to coverage of the
18 Notes and Comments The grounds for disqualification of an appellate Comment to 1997 change: This is former Rule 21. court justice or judge are determined by the The rule is rewritten and now allows recording and Constitution and laws of Texas. broadcasting of court proceedings at the discretion of the court and subject to the stated guidelines. 16.2. Grounds for Recusal
The grounds for recusal of an appellate court Rule 15. Issuance of Writ or Process by Appellate justice or judge are the same as those provided in the Court Rules of Civil Procedure. In addition, a justice or judge must recuse in a proceeding if it presents a 15.1. In General material issue which the justice or judge participated in deciding while serving on another court in which (a) Signature Under Seal. A writ or process the proceeding was pending. issuing from an appellate court must bear the court's seal and be signed by the clerk. 16.3. Procedure for Recusal
(b) To Whom Directed; by Whom Served. Unless (a) Motion. A party may file a motion to recuse a rule or statute provides otherwise, the writ a justice or judge before whom the case is or process must be directed to the person or pending. The motion must be filed promptly court to be served. The writ or process may after the party has reason to believe that the be served by the sheriff, constable, or other justice or judge should not participate in peace officer whose jurisdiction includes the deciding the case. county in which the person or court to be served may be found. (b) Decision. Before any further proceeding in the case, the challenged justice or judge must (c) Return; Lack of Execution; Simultaneous either remove himself or herself from all Writs. The writ or process must be returned participation in the case or certify the matter to the issuing court according to the writ's to the entire court, which will decide the direction. If the writ or process is not motion by a majority of the remaining judges executed, the clerk may issue another writ or sitting en banc. The challenged justice or process if requested by the party who judge must not sit with the remainder of the requested the former writ or process. At a court to consider the motion as to him or her. party's request, the clerk may issue two or more writs simultaneously. (c) Appeal. An order of recusal is not reviewable, but the denial of a recusal motion is 15.2. Appearance Without Service; Actual reviewable. Knowledge Notes and Comments A party who appears in person or by attorney in an appellate court proceeding — or who has actual Comment to 1997 change: Former Rules 15 and knowledge of the court's opinion, judgment, or order 15a are merged. Former Rule 15a appears as related to a writ or process — is bound by the opinion, subdivision 16.2. For grounds for disqualification, judgment, or order to the same extent as if personally reference is made to the Constitution and statutes served under 15.1. rather than the Rules of Civil Procedure. The procedure for disqualification is not specified. The Notes and Comments nature of prior participation in a proceeding that requires recusal is clarified. Former subdivision (b) of Comment to 1997 change: This is former Rule 17. Rule 15, requiring service of the motion, is omitted as Nonsubstantive changes are made. unnecessary. The remaining subdivisions of former Rule 15 are contained in subdivision 16.3. Other changes are made. Rule 16. Disqualification or Recusal of Appellate Judges Rule 17. Court of Appeals Unable to Take 16.1. Grounds for Disqualification Immediate Action
19 (B) no timely filed motion to extend 17.1. Inability to Act time to file a petition for review or petition for discretionary review is A court of appeals is unable to take immediate pending; and action if it cannot — within the time when action must be taken — assemble a panel because members of the (C) in a criminal case, the Court of court are ill, absent, or unavailable. A justice who is Criminal Appeals has not granted disqualified or recused is unavailable. A court of review on its own initiative. appeals’ inability to act immediately may be established by certificate of the clerk, a member of the (2) Ten days after the time has expired for court, or a party’s counsel, or by affidavit of a party. filing a motion to extend time to file a motion for rehearing of a denial, refusal, 17.2. Nearest Available Court of Appeals or dismissal of a petition for review, or a refusal or dismissal of a petition for If a court of appeals is unable to take immediate discretionary review, if no timely filed action, the nearest court of appeals that is able to take motion for rehearing or motion to extend immediate action may do so with the same effect as time is pending. the other court. The nearest court of appeals is the one whose courthouse is nearest — measured by a straight (b) In the Supreme Court and the Court of line — the courthouse of the trial court. Criminal Appeals. Ten days after the time has expired for filing a motion to extend time 17.3. Further Proceedings to file a motion for rehearing if no timely filed motion for rehearing or motion to After acting or refusing to act, the nearest court of extend time is pending. appeals must promptly send a copy of its order, and the original or a copy of any document presented to it, (c) Agreement to Issue. The mandate may be to the other court, which will conduct any further issued earlier if the parties so agree, or for proceedings in the matter. good cause on the motion of a party.
Notes and Comments 18.2. Stay of Mandate
Comment to 1997 change: This is former Rule 16. A party may move to stay issuance of the mandate The rule is rewritten and simplified. pending the United States Supreme Court's disposition of a petition for writ of certiorari. The motion must state the grounds for the petition and the circumstances Rule 18. Mandate requiring the stay. The appellate court authorized to issue the mandate may grant a stay if it finds that the 18.1. Issuance grounds are substantial and that the petitioner or others would incur serious hardship from the mandate's The clerk of the appellate court that rendered the issuance if the United States Supreme Court were later judgment must issue a mandate in accordance with the to reverse the judgment. In a criminal case, the stay judgment and send it to the clerk of the court to which will last for no more than 90 days, to permit the timely it is directed and to all parties to the proceeding when filing of a petition for writ of certiorari. After that one of the following periods expires: period and others mentioned in this rule expire, the mandate will issue. (a) In the Court of Appeals. 18.3. Trial Court Case Number (1) Ten days after the time has expired for filing a motion to extend time to file a The mandate must state the trial court case petition for review or a petition for number. discretionary review if: 18.4. Filing of Mandate (A) no timely petition for review or petition for discretionary review has The clerk receiving the mandate will file it with been filed; the case's other papers and note it on the docket.
20 18.5. Costs 19.2. Plenary Power Continues After Petition Filed
The mandate will be issued without waiting for In a civil case, the court of appeals retains plenary costs to be paid. If the Supreme Court declines to grant power to vacate or modify its judgment during the review, Supreme Court costs must be included in the periods prescribed in 19.1 even if a party has filed a court of appeals’ mandate. petition for review in the Supreme Court.
18.6. Mandate in Accelerated Appeals 19.3. Proceedings After Plenary Power Expires
The appellate court's judgment on an appeal from After its plenary power expires, the court cannot an interlocutory order takes effect when the mandate vacate or modify its judgment. But the court may: is issued. The court may issue the mandate with its judgment or delay the mandate until the appeal is (a) correct a clerical error in its judgment or finally disposed of. If the mandate is issued, any opinion; further proceeding in the trial court must conform to the mandate. (b) issue and recall its mandate as these rules provide; 18.7. Recall of Mandate (c) enforce or suspend enforcement of its If an appellate court vacates or modifies its judgment as these rules or applicable law judgment or order after issuing its mandate, the provide; appellate clerk must promptly notify the clerk of the court to which the mandate was directed and all (d) order or modify the amount and type of parties. The mandate will have no effect and a new security required to suspend a judgment, and mandate may be issued. decide the sufficiency of the sureties, under Rule 24; and Notes and Comments (e) order its opinion published in accordance Comment to 1997 change: This is a new rule that with Rule 47. combines the provisions of former Rules 43(g), 86, 186, 231, and 232. 19.4. Expiration of Term
Comment to 2002 change: Subdivision 18.1 is The expiration of the appellate court's term does amended consistent with the change in subdivision not affect the court's plenary power or its jurisdiction 12.6. over a case that is pending when the court's term expires.
Rule 19. Plenary Power of the Courts of Appeals Notes and Comments and Expiration of Term Comment to 1997 change: This is a new rule 19.1. Plenary Power of Courts of Appeals except the provisions of former Rule 234 are incorporated in subdivision 19.4. A court of appeals' plenary power over its judgment expires: Comment to 2002 change: Subdivision 19.1 is amended to clarify that a motion for en banc (a) 60 days after judgment if no timely filed reconsideration extends the court of appeals' plenary motion for rehearing or en banc power in the same manner as a motion for rehearing reconsideration, or timely filed motion to addressed to the panel of justices who rendered the extend time to file such a motion, is then judgment or under consideration. pending; or Comment to 2008 change: Subdivision 19.1 is (b) 30 days after the court overrules all timely changed, consistent with other changes in the rules, to filed motions for rehearing or en banc specifically address a motion for en banc reconsideration, and all timely filed motions reconsideration and treat it as a motion for rehearing. to extend time to file such a motion.
21 Rule 20. When Party is Indigent complies with Texas Rule of Civil Procedure 145. The Statement that 20.1. Civil Cases was filed in the trial court does not meet the requirements of this rule. (a) Costs Defined. In this rule, “costs” mean filing fees charged by the appellate court. (B) Action by Appellate Court. The Fees charged for preparation of the appellate appellate court may decide the record are governed by Texas Rule of Civil motion based on the record or refer Procedure 145. the motion to the trial court with instructions to hear evidence and (b) When a Statement Was Filed in the Trial issue findings of fact. If a motion is Court. referred to the trial court, the appellate court must review the trial (1) General Rule; Status in Trial Court court’s findings and the record of Carries Forward. A party who filed a the hearing before ruling on the Statement of Inability to Afford Payment motion. of Court Costs in the trial court is not required to pay costs in the appellate (c) When No Statement Was Filed in the Trial court unless the trial court overruled the Court. An appellate court may permit a party party’s claim of indigence in an order who did not file a Statement of Inability to that complies with Texas Rule of Civil Afford Payment of Court Costs in the trial Procedure 145. A party is not required to court to proceed without payment of costs. pay costs in the appellate court if the trial The court may require the party to file a court ordered the party to pay partial Statement in the appellate court. If the court costs or to pay costs in installments. denies the party’s request to proceed without payment of costs, it must do so in a written (2) Establishing the Right to Proceed Under order. the General Rule. To establish the right to proceed without payment of costs Comment to 2016 Change: under (1), a party must communicate to the appellate court clerk in writing that The rule has been rewritten so that it only governs the party is presumed indigent under this filing fees and any other fee charged by the appellate rule. In an appeal under Section Two of court. Texas Rule of Civil Procedure 145 governs a these rules, the applicability of the party’s claim that the party is unable to afford costs for presumption should be stated in the preparation of the appellate record. notice of appeal and in the docketing statement. Because appellate filing fees are minimal, a party that filed a Statement of Inability to Afford Payment of (3) Exception; Material Change in Court Costs in the trial court is not required to file a Circumstances. An appellate court may new Statement in the appellate court unless the trial permit a party who is not entitled to court made affirmative findings under Texas Rule of proceed under (1) to proceed without Civil Procedure 145 that the party is able to afford all payment of costs if the party establishes court costs and to pay those costs as they are incurred. that the party’s financial circumstances Furthermore, because a determination of indigence by have materially changed since the date of the trial court carries forward to appeal in all cases, the trial court’s order under Texas Rule Family Code section 107.013 is satisfied. of Civil Procedure 145. Experience has shown that, in most cases, a party’s (A) Requirements. The party must file a financial circumstances do not change substantially motion in the appellate court between the trial court proceedings and the appellate alleging that the party’s financial court proceedings. Nonetheless, (b)(3) permits a party circumstances have materially whom the trial court determined is able to afford all changed since the date of the trial costs to demonstrate to the appellate court that the court’s order and a current party’s circumstances have changed since the trial Statement of Inability to Afford court’s ruling and that the party is unable to afford Payment of Court Costs that appellate filing fees.
22 proceedings properly filed in the appellate court under 20.2. Criminal Cases subdivision 20.1(c)(2). Although Subdivision 3.1(g) defines “court reporter” to include court recorder, Within the time for perfecting the appeal, an subdivision 20.1(e) is amended to make clear that a appellant who is unable to pay for the appellate record court recorder can contest an affidavit. may, by motion and affidavit, ask the trial court to have the appellate record furnished without charge. If Reference after hearing the motion the court finds that the appellant cannot pay or give security for the appellate See also Civil Practice and Remedies Code record, the court must order the reporter to transcribe §13.003. the proceedings. When the court certifies that the appellate record has been furnished to the appellant, the reporter must be paid from the general funds of the SECTION TWO: APPEALS FROM TRIAL county in which the offense was committed, in the COURT JUDGMENTS AND ORDERS amount set by the trial court. Rule 21. New Trials in Criminal Cases Notes and Comments 21.1. Definition Comment to 1997 change: The rule is new and combines the provisions of former Rules 13(k), (a) New trial means the rehearing of a criminal 40(a)(3), and 53(j). The procedure for proceeding in action after the trial court has, on the civil cases in an appellate court without advance defendant's motion, set aside a finding or payment of costs, in both appeals and original verdict of guilt. proceedings, is stated. The information that must be given in the affidavit is prescribed. An extension of (b) New trial on punishment means a new time to file the affidavit is now available. The indigent hearing of the punishment state of a criminal party is no longer required to serve the court reporter, action after the trial court has, on the but must file the affidavit with the appropriate clerk defendant's motion, set aside an assessment who is to notify the court reporter. A contest need not of punishment without setting aside a finding be under oath. Provision is made for later ability to pay or verdict of guilt. the costs. Nonsubstantive changes are made to the rule for criminal cases. 21.2. When Motion for New Trial Required
Comment to 2008 change: Subdivision 20.1(a) is A motion for new trial is a prerequisite to added to provide, as in Texas Rule of Civil Procedure presenting a point of error on appeal only when 145, that an affidavit of indigence accompanied by an necessary to adduce facts not in the record. IOLTA or other Texas Access to Justice Foundation certificate cannot be challenged. Subdivision 21.3. Grounds 20.1(c)(1) is revised to clarify that an affidavit of indigence filed to proceed in the trial court without The defendant must be granted a new trial, or a advance payment of costs is insufficient to establish new trial on punishment, for any of the following indigence on appeal; a separate affidavit must be filed reasons: with or before the notice of appeal. Subdivision 20.1(c)(3) is revised to provide that an appellate court (a) except in a misdemeanor case in which the must give an appellant who fails to file a proper maximum possible punishment is a fine, appellate indigence affidavit notice of the defect and when the defendant has been unlawfully tried an opportunity to cure it before dismissing the appeal in absentia or has been denied counsel; or affirming the judgment on that basis. See Higgins v. Randall County Sheriff's Office, 193 S.W.3d 898 (b) when the court has misdirected the jury about (Tex. 2006). The limiting phrase “under (c)(2)” in the law or has committed some other material Subdivision 20.1(d)(2) is deleted to clarify that the error likely to injure the defendant's rights; appellate clerk's duty to forward copies of the affidavit to the trial court clerk and the court reporter, along (c) when the verdict has been decided by lot or with a notice setting a deadline to contest the affidavit, in any manner other than a fair expression of applies to affidavits on appeal erroneously filed in the the jurors' opinion; appellate court, not only to affidavits in other appellate
23 (d) when a juror has been bribed to convict or has been guilty of any other corrupt conduct; 21.8. Court's Ruling
(e) when a material defense witness has been (a) Time to Rule. The court must rule on a motion kept from court by force, threats, or fraud, or for new trial within 75 days after imposing or when evidence tending to establish the suspending sentence in open court. defendant's innocence has been intentionally destroyed or withheld, thus preventing its (b) Ruling. In ruling on a motion for new trial, production at trial; the court may make oral or written findings of fact. The granting of a motion for new trial (f) when, after retiring to deliberate, the jury must be accomplished by written order. A has received other evidence; when a juror has docket entry does not constitute a written talked with anyone about the case; or when a order. juror became so intoxicated that his or her vote was probably influenced as a result; (c) Failure to Rule. A motion not timely ruled on by written order will be deemed denied when (g) when the jury has engaged in such the period prescribed in (a) expires. misconduct that the defendant did not receive a fair and impartial trial; or 21.9. Granting a New Trial
(h) when the verdict is contrary to the law and the (a) A court must grant a new trial when it has evidence. found a meritorious ground for new trial, but a court must grant only a new trial on 21.4. Time to File and Amend Motion punishment when it has found a ground that affected only the assessment of punishment. (a) To File. The defendant may file a motion for new trial before, but no later than 30 days (b) Granting a new trial restores the case to its after, the date when the trial court imposes or position before the former trial, including, at suspends sentence in open court. any party's option, arraignment or pretrial proceedings initiated by that party. (b) To Amend. Within 30 days after the date when the trial court imposes or suspends (c) Granting a new trial on punishment restores sentence in open court but before the court the case to its position after the defendant was overrules any preceding motion for new trial, found guilty. Unless the defendant, State, and a defendant may, without leave of court, file trial court all agree to a change, punishment one or more amended motions for new trial. in a new trial shall be assessed in accordance with the defendant's original election under 21.5. State May Controvert; Effect article 37.07, § 2(b) of the Code of Criminal Procedure. The State may oppose in writing any reason the defendant sets forth in the motion for new trial. The (d) A finding or verdict of guilt in the former trial State's having opposed a motion for new trial does not must not be regarded as a presumption of affect a defendant's responsibilities under 21.6. guilt, nor may it be alluded to in the presence of the jury that hears the case on retrial of 21.6. Time to Present guilt. A finding of fact or an assessment of punishment in the former trial may not be The defendant must present the motion for new alluded to in the presence of the jury that trial to the trial court within 10 days of filing it, unless hears the case on retrial of punishment. the trial court in its discretion permits it to be presented and heard within 75 days from the date when the court Notes and Comments imposes or suspends sentence in open court. Comment to 1997 change: Former Rules 30, 31, 21.7. Types of Evidence Allowed at Hearing and 32 are merged. Paragraph (b)(6) of former Rule 30 is deleted because the rule-making authority of the The court may receive evidence by affidavit or Court of Criminal Appeals was withdrawn. See Code otherwise. of Criminal Procedure article 40.001. Other
24 nonsubstantive changes are made. the defendant is restored to the position that he or she had before the indictment or Rule 22. Arrest of Judgment in Criminal Cases information was presented.
22.1. Definition (b) Defendant Discharged or Remanded. If the judgment is arrested, the defendant will be Motion in arrest of judgment means a defendant's discharged. But the trial court may remand oral or written suggestion that, for reasons stated in the the defendant to custody or fix bail if the motion, the judgment rendered against the defendant court determines, from the evidence adduced was contrary to law. Such a motion is made in the trial at trial, that the defendant may be convicted court. on a proper indictment or information, or on a proper verdict in relation to the indictment 22.2. Grounds or information.
The motion may be based on any of the following Notes and Comments grounds: Comment to 1997 change: Former Rules 33, 34, (a) that the indictment or information is subject and 35 are merged without substantive change. to an exception on substantive grounds;
(b) that in relation to the indictment or Rule 23. Nunc Pro Tunc information a verdict is substantively Proceedings in Criminal Cases defective; or 23.1. Judgment and Sentence (c) that the judgment is invalid for some other reason. Unless the trial court has granted a new trial or arrested the judgment, or unless the defendant has 22.3. Time to File Motion appealed, a failure to render judgment and pronounce sentence may be corrected at any time by the court's A defendant may file a motion in arrest of doing so. judgment before, but no later than 30 days after, the date when the trial court imposes or suspends sentence 23.2. Credit on Sentence in open court. When sentence is pronounced, the trial court must 22.4. Court's Ruling give the defendant credit on that sentence for:
(a) Time to Rule; Form of Ruling. The court must (a) all time the defendant has been confined rule on a motion in arrest of judgment within since the time when judgment and sentence 75 days after imposing or suspending should have been entered and pronounced; sentence in open court. The ruling may be and oral or in writing. (b) all time between the defendant's arrest (b) Failure to Rule. A motion not timely ruled on and confinement to the time when judgment will be deemed denied when the period and sentence should have been entered and prescribed in (a) expires. pronounced.
22.5. Effect of Denying Notes and Comments
For purposes of the defendant's giving notice of Comment to 1997 change: This is former Rule 36. appeal, an order denying a motion in arrest of The rule is amended without substantive change. judgment will be considered an order denying a motion for new trial. Rule 24. Suspension of Enforcement of Judgment 22.6. Effect of Granting Pending Appeal in Civil Cases
(a) Defendant Restored. If judgment is arrested, 24.1. Suspension of Enforcement
25 government or of any federally (a) Methods. Unless the law or these rules insured and federally or state- provide otherwise, a judgment debtor may chartered bank or savings-and-loan supersede the judgment by: association.
(1) filing with the trial court clerk a written (2) Amount of Deposit. The deposit must be agreement with the judgment creditor for in the amount required by 24.2. suspending enforcement of the judgment; (3) Clerk’s Duties; Interest. The clerk must promptly deposit any cash or a (2) filing with the trial court clerk a good cashier’s check in accordance with law. and sufficient bond; The clerk must hold the deposit until the conditions of liability in (d) are (3) making a deposit with the trial court extinguished. The clerk must then clerk in lieu of a bond; or release any remaining funds in the deposit to the judgment debtor. (4) providing alternate security ordered by the court. (d) Conditions of Liability. The surety or sureties on a bond, any deposit in lieu of a (b) Bonds. bond, or any alternate security ordered by the court is subject to liability for all damages (1) A bond must be: and costs that may be awarded against the debtor — up to the amount of the bond, (A) in the amount required by 24.2; deposit, or security — if:
(B) payable to the judgment creditor; (1) the debtor does not perfect an appeal or the debtor’s appeal is dismissed, and the (C) signed by the judgment debtor or the debtor does not perform the trial court’s debtor’s agent; judgment;
(D) signed by a sufficient surety or (2) the debtor does not perform an sureties as obligors; and adverse judgment final on appeal; or
(E) conditioned as required by (d). (3) the judgment is for the recovery of an interest in real or personal property, and (2) To be effective a bond must be approved the debtor does not pay the creditor the by the trial court clerk. On motion of any value of the property interest’s rent or party, the trial court will review the revenue during the pendency of the bond. appeal.
(c) Deposit in Lieu of Bond. (e) Orders of Trial Court. The trial court may make any order necessary to adequately (1) Types of Deposits. Instead of filing a protect the judgment creditor against loss or surety bond, a party may deposit with the damage that the appeal might cause. trial court clerk: (f) Effect of Supersedeas. Enforcement of a (A) cash; judgment must be suspended if the judgment is superseded. Enforcement begun before the (B) a cashier’s check payable to the judgment is superseded must cease when the clerk, drawn on any federally judgment is superseded. If execution has insured and federally or state- been issued, the clerk will promptly issue a chartered bank or savings-and-loan writ of supersedeas. association; or 24.2. Amount of Bond, Deposit, or Security (C) with leave of court, a negotiable obligation of the federal (a) Type of Judgment.
26 unless ordered by the trial court. But (1) For Recovery of Money. When the upon a proper showing, the appellate judgment is for money, the amount of the court may suspend enforcement of the bond, deposit, or security must equal the judgment with or without security. sum of compensatory damages awarded in the judgment, interest for the (5) For a Governmental Entity. When a estimated duration of the appeal, and judgment in favor of a governmental costs awarded in the judgment. But the entity in its governmental capacity is one amount must not exceed the lesser of: in which the entity has no pecuniary interest, the trial court must determine (A) 50 percent of the judgment debtor's whether to suspend enforcement, with or current net worth; or without security, taking into account the harm that is likely to result to the (B) 25 million dollars. judgment debtor if enforcement is not suspended, and the harm that is likely to (2) For Recovery of Property. When the result to others if enforcement is judgment is for the recovery of an suspended. The appellate court may interest in real or personal property, the review the trial court’s determination trial court will determine the type of and suspend enforcement of the security that the judgment debtor must judgment, with or without security, or post. The amount of that security must be refuse to suspend the judgment. If at least: security is required, recovery is limited to the governmental entity’s actual (A) the value of the property interest's damages resulting from suspension of rent or revenue, if the property the judgment. interest is real; or (b) Lesser Amount. The trial court must lower (B) the value of the property interest on the amount of security required by (a) to an the date when the court rendered amount that will not cause the judgment judgment, if the property interest is debtor substantial economic harm if, after personal. notice to all parties and a hearing, the court finds that posting a bond, deposit, or security (3) Other Judgment. When the judgment is in the amount required by (a) is likely to for something other than money or an cause the judgment debtor substantial interest in property, the trial court must economic harm. set the amount and type of security that the judgment debtor must post. The (c) Determination of Net Worth. security must adequately protect the judgment creditor against loss or damage (1) Judgment Debtor's Affidavit Required; that the appeal might cause. But the trial Contents; Prima Facie Evidence. A court may decline to permit the judgment judgment debtor who provides a bond, to be superseded if the judgment creditor deposit, or security under (a)(1)(A) in an posts security ordered by the trial court amount based on the debtor's net worth in an amount and type that will secure must simultaneously file with the trial the judgment debtor against any loss or court clerk an affidavit that states the damage caused by the relief granted the debtor's net worth and states complete, judgment creditor if an appellate court detailed information concerning the determines, on final disposition, that that debtor's assets and liabilities from which relief was improper. net worth can be ascertained. An affidavit that meets these requirements is (4) Conservatorship or Custody. When prima facie evidence of the debtor's net the judgment involves the worth for the purpose of establishing the conservatorship or custody of a minor or amount of the bond, deposit, or security other person under legal disability, required to suspend enforcement of the enforcement of the judgment will not be judgment. A trial court clerk must suspended, with or without security, receive and file a net-worth affidavit
27 tendered for filing by a judgment debtor. jurisdiction attaches in an appellate court, the trial court orders or modifies the security or (2) Contest; Discovery. A judgment creditor decides the sufficiency of sureties, the may file a contest to the debtor's claimed judgment debtor must notify the appellate net worth. The contest need not be court of the trial court's action. sworn. The creditor may conduct reasonable discovery concerning the 24.4. Appellate Review judgment debtor's net worth. (a) Motions; Review. A party may seek review (3) Hearing; Burden of Proof; Findings; of the trial court's ruling by motion filed in Additional Security. The trial court must the court of appeals with jurisdiction or hear a judgment creditor's contest of the potential jurisdiction over the appeal from the judgment debtor's claimed net worth judgment in the case. A party may seek promptly after any discovery has been review of the court of appeals' ruling on the completed. The judgment debtor has the motion by petition for writ of mandamus in burden of proving net worth. The trial the Supreme Court. The appellate court may court must issue an order that states the review: debtor's net worth and states with particularity the factual basis for that (1) the sufficiency or excessiveness of the determination. If the trial court orders amount of security, but when the additional or other security to supersede judgment is for money, the appellate the judgment, the enforcement of the court must not modify the amount of judgment will be suspended for twenty security to exceed the limits imposed by days after the trial court's order. If the Rule 24.2(a)(1); judgment debtor does not comply with the order within that period, the (2) the sureties on any bond; judgment may be enforced against the judgment debtor. (3) the type of security;
(d) Injunction. The trial court may enjoin the (4) the determination whether to permit judgment debtor from dissipating or suspension of enforcement; and transferring assets to avoid satisfaction of the judgment, but the trial court may not make (5) the trial court's exercise of discretion any order that interferes with the judgment under Rule 24.3(a). debtor's use, transfer, conveyance, or dissipation of assets in the normal course of (b) Grounds of Review. Review may be based business. both on conditions as they existed at the time the trial court signed an order and on changes 24.3. Continuing Trial Court Jurisdiction; in those conditions afterward. Duties of Judgment Debtor (c) Temporary Orders. The appellate court may (a) Continuing Jurisdiction. Even after the trial issue any temporary orders necessary to court's plenary power expires, the trial court preserve the parties’ rights. has continuing jurisdiction to do the following: (d) Action by Appellate Court. The motion must be heard at the earliest practicable time. The (1) order the amount and type of security appellate court may require that the amount and decide the sufficiency of sureties; of a bond, deposit, or other security be and increased or decreased, and that another bond, deposit, or security be provided and (2) if circumstances change, modify the approved by the trial court clerk. The amount or type of security required to appellate court may require other changes in continue the suspension of a judgment's the trial court order. The appellate court may execution. remand to the trial court for entry of findings of fact or for the taking of evidence. (b) Duties of Judgment Debtor. If, after
28 (e) Effect of Ruling. If the appellate court 25.1. Civil Cases orders additional or other security to supersede the judgment, enforcement will be (a) Notice of Appeal. An appeal is perfected suspended for 20 days after the appellate when a written notice of appeal is filed with court’s order. If the judgment debtor the trial court clerk. If a notice of appeal is does not comply with the order within that mistakenly filed with the appellate court, the period, the judgment may be enforced. When notice is deemed to have been filed the same any additional bond, deposit, or security has day with the trial court clerk, and the been filed, the trial court clerk must notify appellate clerk must immediately send the the appellate court. The posting of additional trial court clerk a copy of the notice. security will not release the previously posted security or affect any alternative security (b) Jurisdiction of Appellate Court. The filing arrangements that the judgment debtor of a notice of appeal by any party invokes the previously made unless specifically ordered appellate court’s jurisdiction over all parties by the appellate court. to the trial court’s judgment or order appealed from. Any party’s failure to take any other Notes and Comments step required by these rules, including the failure of another party to perfect an appeal Comment to 1997 change: Former Rules 47, 48, under (c), does not deprive the appellate court and 49 are merged. The rule is substantially revised. of jurisdiction but is ground only for the Paragraph 24.1(a) now provides for superseding the appellate court to act appropriately, including judgment by agreement. Paragraph 24.1(c) is taken dismissing the appeal. from former Rule 48 and provides for a deposit in lieu of the bond, including specific provisions for the (c) Who Must File Notice. A party who seeks to release of the deposit. Paragraph 24.1(d) provides the alter the trial court’s judgment or other conditions for the surety to honor the bond and for the appealable order must file a notice of appeal. deposit to be paid to the judgment creditor. In Parties whose interests are aligned may file a subdivision 24.2, the provisions for determining the joint notice of appeal. The appellate court amount of the bond or deposit are simplified. All may not grant a party who does not file a provisions regarding superseding a judgment for an notice of appeal more favorable relief than interest in property are merged into subparagraph did the trial court except for just cause. 24.2(a)(2). The procedure for allowing security in a lesser amount is moved to paragraph 24.2(b) and is (d) Contents of Notice. The notice of appeal made applicable to all judgments. Subdivision 24.4 is must: taken from former Rule 49. The procedure for appellate review is more precisely stated. (1) identify the trial court and state the case’s trial court number and style; Comment to 2008 change: Subdivision 24.2(c) is amended to clarify the procedure in determining net (2) state the date of the judgment or order worth. A debtor's affidavit of net worth must be appealed from; detailed, but the clerk must file what is tendered without determining whether it complies with the rule. (3) state that the party desires to appeal; If the trial court orders that additional or other security be given, the debtor is afforded time to comply. (4) state the court to which the appeal is Subdivision 24.4(a) is revised to clarify that a party taken unless the appeal is to either the seeking relief from a supersedeas ruling should file a First or Fourteenth Court of Appeals, in motion in the court of appeals that has or presumably which case the notice must state that the will have jurisdiction of the appeal. After the court of appeal is to either of those courts; appeals has ruled, a party may seek review by filing a petition for writ of mandamus in the Supreme Court. (5) state the name of each party filing the See In re Smith / In re Main Place Custom Homes, Inc., notice; 192 S.W.3d 564, 568 (Tex. 2006) (per curiam). (6) in an accelerated appeal, state that the appeal is accelerated and state whether it Rule 25. Perfecting Appeal is a parental termination or child protection case, as defined in Rule 28.4;
29 (2) the appellant is entitled to supersede (7) in a restricted appeal: the judgment without security by filing a notice of appeal. (A) state that the appellant is a party affected by the trial court’s 25.2. Criminal Cases judgment but did not participate— either in person or through (a) Rights to Appeal. counsel—in the hearing that resulted in the judgment complained (1) Of the State. The State is entitled to of; appeal a court’s order in a criminal case as provided by Code of Criminal (B) state that the appellant did not Procedure article 44.01 timely file either a postjudgment motion, request for findings of fact (2) Of the Defendant. A defendant in a and conclusions of law, or notice of criminal case has the right of appeal appeal; and under Code of Criminal Procedure article 44.02 and these rules. The trial (C) be verified by the appellant if the court shall enter a certification of the appellant does not have counsel. defendant’s right of appeal each time it enters a judgment of guilt or other (8) state, if applicable, that the appellant is appealable order. In a plea bargain case presumed indigent and may proceed – that is, a case in which a defendant’s without paying costs under Rule 20.1. plea was guilty or nolo contendere and the punishment did not exceed the (e) Service of Notice. The notice of appeal must punishment recommended by the be served on all parties to the trial court's final prosecutor and agreed to by the judgment or, in an interlocutory appeal, on all defendant – a defendant may appeal parties to the trial court proceeding. only:
(f) Clerk’s Duties. The trial court clerk must (A) those matters that were raised by immediately send a copy of the notice of a written motion filed and ruled on appeal to the appellate court clerk and to the before trial, or court reporter or court reporters responsible for preparing the reporter’s record. (B) after getting the trial court’s permission to appeal. (g) Amending the Notice. An amended notice of appeal correcting a defect or omission in an (b) Perfection of Appeal. In a criminal case, earlier filed notice may be filed in the appeal is perfected by timely filing a appellate court at any time before the sufficient notice of appeal. In a death-penalty appellant's brief is filed. The amended notice case it is unnecessary to file a notice of is subject to being struck for cause on the appeal, but, in every death-penalty case, the motion of any party affected by the amended clerk of the trial court shall file a notice of notice. After the appellant's brief is filed, the conviction with the Court of Criminal notice may be amended only on leave of the Appeals within thirty days after the defendant appellate court and on such terms as the court is sentenced to death. may prescribe. (c) Form and Sufficiency of Notice. (h) Enforcement of Judgment Not Suspended by Appeal. The filing of a notice of appeal does (1) Notice must be given in writing and filed not suspend enforcement of the judgment. with the trial court clerk. If the notice of Enforcement of the judgment may proceed appeal is received in the court of appeals, unless: the clerk of that court shall immediately record on the notice the date that it was (1) the judgment is superseded in received and send the notice to the trial accordance with Rule 24, or court clerk.
30 (2) Notice is sufficient if it shows the party's (g) Effect of Appeal. Once the record has been desire to appeal from the judgment or filed in the appellate court, all further other appealable order, and, if the State proceedings in the trial court – except as is the appellant, the notice complies with provided otherwise by law or by these rules - Code of Criminal Procedure article will be suspended until the trial court receives 44.01. the appellate – court mandate.
(d) Certification of Defendant’s Right of Appeal. (h) Advice of Right of Appeal. When a court If the defendant is the appellant, the record enters a judgment or other appealable order must include the trial court’s certification of and the defendant has a right of appeal, the the defendant’s right of appeal under Rule court (orally or in writing) shall advise the 25.2(a)(2). The certification shall include a defendant of his right of appeal and of the notice that the defendant has been informed requirements for timely filing a sufficient of his rights concerning an appeal, as well as notice of appeal. any right to file a pro se petition for discretionary review. This notification shall Notes and Comments be signed by the defendant, with a copy given to him. The certification should be Comment on 1997 change: This is former Rule part of the record when notice is filed, but 40. In civil cases, the requirement of an appeal bond is may be added by timely amendment or repealed. Appeal is perfected by filing a notice of supplementation under this rule or Rule appeal. A notice must be filed by any party seeking to 34.5(c)(1) or Rule 37.1 or by order of the alter the trial court’s judgment. The restricted appeal appellate court under Rule 34.5(c)(2). The — formerly the appeal by writ of error — is perfected appeal must be dismissed if a certification by filing a notice of appeal in the trial court as in other that shows the defendant has the right of appeals. The contents of the notice of appeal is appeal has not been made part of the record prescribed. The notice of limitation of appeal is under these rules. repealed. In criminal cases, the rule is amended to apply to notices by the State, and to refer to additional (e) Clerk's Duties. The trial court clerk must note statutory requirements for the State’s notice. In felony on the copies of the notice of appeal and the cases in which the defendant waived trial by jury, trial court’s certification of the defendant’s pleaded guilty or nolo contendere, and received a right of appeal the case number and the date punishment that did not exceed what the defendant when each was filed. The clerk must then agreed to in a plea bargain, the rule is amended to immediately send one copy of each to the make clear that regardless of when the alleged error clerk of the appropriate court of appeals and, occurred, an appeal must be based on a jurisdictional if the defendant is the appellant, one copy of defect or a written motion ruled on before trial, or be each to the State's attorney. with the permission of the trial court.
(f) Amending the Notice or Certification. An Comment to 2002 change: Rule 25.2, for criminal amended notice of appeal or trial court’s cases, is amended. Subdivision 25.2(a) states the certification of the defendant’s right of parties’ rights of appeal that are established by Code appeal correcting a defect or omission in an of Criminal Procedure article 44.01 and by article earlier filed notice or certification, including 44.02, the proviso of which was repealed when a defect in the notification of the defendant’s rulemaking power was given to the Court of Criminal appellate rights, may be filed in the appellate Appeals. Subdivision 25.2(b) is given the requirement court in accordance with Rule 37.1, or at any that a notice of appeal be in “sufficient” form, which time before the appealing party's brief is filed codifies the decisional law. The requirement in if the court of appeals has not used Rule 37.1. former subdivision 25.2(b)(3) that a plea-bargaining The amended notice or certification is subject appellant’s notice of appeal specify the right of appeal to being struck for cause on the motion of any is replaced by a requirement in subdivision 25.2(d) party affected by the amended notice or that the trial court certify the defendant’s right of certification. After the appealing party’s brief appeal in every case in which a judgment or other is filed, the notice or certification may be appealable order is entered. The certificate should be amended only on leave of the appellate court signed at the time the judgment or other appealable and on such terms as the court may prescribe. order is pronounced. The form of certification of the defendant’s right of appeal is provided in an appendix
31 to these rules. If the record does not include the trial court’s certification that the defendant has the right of (2) within 90 days after the day sentence appeal, the appeal must be dismissed. If a sufficient is imposed or suspended in open court if notice of appeal or certification is not filed after the the defendant timely files a motion for appellate court deals with the defect (see Rules 34.5(c) new trial. and 37.1), preparation of an appellate record and representation by an appointed attorney may cease. (b) By the State. The notice of appeal must be filed within 20 days after the day the trial Rule 26. Time to Perfect Appeal court enters the order, ruling, or sentence to be appealed. 26.1. Civil Cases 26.3. Extension of Time The notice of appeal must be filed within 30 days after the judgment is signed, except as follows: The appellate court may extend the time to file the notice of appeal if, within 15 days after the (a) the notice of appeal must be filed within 90 deadline for filing the notice of appeal, the party: days after the judgment is signed if any party timely files: (a) files in the trial court the notice of appeal; and (1) a motion for new trial; (b) files in the appellate court a motion (2) a motion to modify the judgment; complying with Rule 10.5(b).
(3) a motion to reinstate under Texas Rule of Notes and Comments Civil Procedure 165a; or Comment to 1997 change: This is former Rule 41. (4) a request for findings of fact and All times for perfecting appeal in civil cases — conclusions of law if findings and including the time for perfecting a restricted appeal — conclusions either are required by the are stated. An extension of time is available for all Rules of Civil Procedure or, if not appeals. The provisions of former Rule 41(c) required, could properly be considered regarding prematurely filed documents are moved to by the appellate court; Rule 27. Nonsubstantive changes are made in the rule for criminal cases. (b) in an accelerated appeal, the notice of appeal must be filed within 20 days after the judgment or order is signed; Rule 27. Premature Filings
(c) in a restricted appeal, the notice of appeal 27.1. Prematurely Filed Notice of Appeal must be filed within six months after the judgment or order is signed; and (a) Civil Cases. In a civil case, a prematurely filed notice of appeal is effective and deemed (d) if any party timely files a notice of appeal, filed on the day of, but after, the event that another party may file a notice of appeal begins the period for perfecting the appeal. within the applicable period stated above or 14 days after the first filed notice of appeal, (b) Criminal Cases. In a criminal case, a whichever is later. prematurely filed notice of appeal is effective and deemed filed on the same day, but after, 26.2. Criminal Cases sentence is imposed or suspended in open court, or the appealable order is signed by the (a) By the Defendant. The notice of appeal must trial court. But a notice of appeal is not be filed: effective if filed before the trial court makes a finding of guilt or receives a jury verdict. (1) within 30 days after the day sentence is imposed or suspended in open court, 27.2. Other Premature Actions or after the day the trial court enters an appealable order; or The appellate court may treat actions taken before
32 an appealable order is signed as relating to an appeal court need not file findings of fact and of that order and give them effect as if they had been conclusions of law but may do so within 30 taken after the order was signed. The appellate court days after the order is signed. may allow an appealed order that is not final to be modified so as to be made final and may allow the (d) Quo Warranto Appeals. The trial court may modified order and all proceedings relating to it to be grant a motion for new trial timely filed under included in a supplemental record. Texas Rule of Civil Procedure 329b(a)–(b) until 50 days after the trial court's final 27.3. If Appealed Order Modified or Vacated judgment is signed. If not determined by signed written order within that period, the After an order or judgment in a civil case has been motion will be deemed overruled by appealed, if the trial court modifies the order or operation of law on expiration of that period. judgment, or if the trial court vacates the order or judgment and replaces it with another appealable order (e) Record and Briefs. In lieu of the clerk's or judgment, the appellate court must treat the appeal record, the appellate court may hear an as from the subsequent order or judgment and may accelerated appeal on the original papers treat actions relating to the appeal of the first order or forwarded by the trial court or on sworn and judgment as relating to the appeal of the subsequent uncontroverted copies of those papers. The order or judgment. The subsequent order or judgment appellate court may allow the case to be and actions relating to it may be included in the submitted without briefs. The deadlines and original or supplemental record. Any party may procedures for filing the record and briefs in nonetheless appeal from the subsequent order or an accelerated appeal are provided in Rules judgment. 35.1 and 38.6.
Notes and Comments 28.2. Agreed Interlocutory Appeals in Civil Cases
Comment to 1997 change: This rule is new and (a) Perfecting Appeal. An agreed appeal of an combines the provisions of former Rules 41(c) and 58. interlocutory order permitted by statute must be perfected as provided in Rule 25.1. The notice of appeal must be filed no later than Rule 28. Accelerated, Agreed, and Permissive the 20th day after the date the trial court signs Appeals in Civil Cases a written order granting permission to appeal, unless the court of appeals extends the time 28.1. Accelerated Appeals for filing pursuant to Rule 26.3.
(a) Types of Accelerated Appeals. Appeals from (b) Other Requirements. In addition to perfecting interlocutory orders (when allowed by appeal, the appellant must file with the clerk statute), appeals in quo warranto of the appellate court a docketing statement proceedings, appeals required by statute to as provided in Rule 32.1 and pay to the clerk be accelerated or expedited, and appeals of the appellate court all required fees required by law to be filed or perfected within authorized to be collected by the clerk. less than 30 days after the date of the order or judgment being appealed are accelerated (c) Contents of Notice. The notice of accelerated appeals. appeal must contain, in addition to the items required by Rule 25.1(d), the following: (b) Perfection of Accelerated Appeal. Unless otherwise provided by statute, an accelerated (1) a list of the names of all parties to appeal is perfected by filing a notice of appeal the trial court proceeding and the in compliance with Rule 25.1 within the time names, addresses, and telefax allowed by Rule 26.1(b) or as extended by numbers of all trial and appellate Rule 26.3. Filing a motion for new trial, any counsel; other post-trial motion, or a request for findings of fact will not extend the time to (2) a copy of the trial court's order perfect an accelerated appeal. granting permission to appeal;
(c) Appeals of Interlocutory Orders. The trial (3) a copy of the trial court order
33 appealed from; 28.3. Permissive Appeals in Civil Cases.
(4) a statement that all parties to the trial (a) Petition Required. When a trial court has court proceeding agreed to the trial permitted an appeal from an interlocutory court's order granting permission to order that would not otherwise be appealable, appeal; a party seeking to appeal must petition the court of appeals for permission to appeal. (5) a statement that all parties to the trial court proceeding agreed that the (b) Where Filed. The petition must be filed with order granting permission to appeal the clerk of the court of appeals having involves a controlling question of appellate jurisdiction over the action in which law as to which there is a the order to be appealed is issued. The First substantial ground for difference of and Fourteenth Courts of Appeals must opinion; determine in which of those two courts a petition will be filed. (6) a brief statement of the issues or points presented; and (c) When Filed. The petition must be filed within 15 days after the order to be appealed (7) a concise explanation of how an is signed. If the order is amended by the trial immediate appeal may materially court, either on its own or in response to a advance the ultimate termination of party’s motion, to include the court’s the litigation. permission to appeal, the time to petition the court of appeals runs from the date the (d) Determination of Jurisdiction. If the court of amended order is signed. appeals determines that a notice of appeal filed under this rule does not demonstrate the (d) Extension of Time to File Petition. The court court's jurisdiction, it may order the appellant of appeals may extend the time to file the to file an amended notice of appeal. On a petition if the party: party's motion or its own initiative, the court of appeals may also order the appellant or any (1) files the petition within 15 days other party to file briefing addressing after the deadline, and whether the appeal meets the statutory requirements, and may direct the parties to (2) files a motion complying with Rule file supporting evidence. If, after providing 10.5(b). an opportunity to file an amended notice of appeal or briefing addressing potential (e) Contents. The petition must: jurisdictional defects, the court of appeals concludes that a jurisdictional defect exists, it (1) contain the information required by may dismiss the appeal for want of Rule 25.1(d) to be included in a notice of jurisdiction at any stage of the appeal. appeal;
(e) Record; Briefs. The rules governing the filing (2) attach a copy of the order from which of the appellate record and briefs in appeal is sought; accelerated appeals apply. A party may address in its brief any issues related to the (3) contain a table of contents, index of court of appeals' jurisdiction, including authorities, issues presented, and a whether the appeal meets the statutory statement of facts; and requirements. (4) argue clearly and concisely why the (f) No Automatic Stay of Proceedings in Trial order to be appealed involves a Court. An agreed appeal of an interlocutory controlling question of law as to which order permitted by statute does not stay there is a substantial ground for proceedings in the trial court except as agreed difference of opinion and how an by the parties and ordered by the trial court or immediate appeal from the order may the court of appeals. materially advance the ultimate termination of the litigation.
34 parent-child relationship is at issue. (f) Response; Reply; Cross-Petition; Time for Filing. If any party timely files a petition, any (B) a “child protection case” means a other party may file a response or a cross- suit affecting the parent-child petition within 10 days. A party may file a relationship filed by a governmental response to a cross-petition within 10 days of entity for managing the date the cross-petition is filed. A conservatorship. petitioner or cross-petitioner may reply to any matter in a response within 7 days of the (b) Appellate Record. date the response is filed. The court of appeals may extend the time to file a (1) Responsibility for Preparation of the response, reply, and cross-petition. Reporter’s Record. In addition to the responsibility imposed on the trial court (g) Length of Petition, Cross-Petition, Response, in Rule 35.3(c), when the reporter’s and Reply. A petition, cross-petition, responsibility to prepare, certify and response, and reply must comply with the timely file the reporter’s record arises page limitations in 9.4(i)(2)(D)-(E). under Rule 35.3(b), the trial court must direct the official or deputy reporter to (h) Service. A petition, cross-petition, response, immediately commence the preparation and reply must be served on all parties to the of the reporter’s record. The trial court trial court proceeding. must arrange for a substitute reporter, if necessary. (i) Docketing Statement. Upon filing the petition, the petitioner must file the docketing (2) Extension of Time. The appellate court statement required by Rule 32.1. may grant an extension of time to file a record under Rule 35.3(c); however, the (j) Time for Determination. Unless the court of extension or extensions granted must not appeals orders otherwise, a petition, and any exceed 30 days cumulatively, absent cross-petition, response, and reply, will be extraordinary circumstanced. determined without oral argument, no earlier than 10 days after the petition is filed. (3) Restriction on Preparation Inapplicable. Section 13.003 of the Civil Practice & (k) When Petition Granted. If the petition is Remedies Code does not apply to an granted, a notice of appeal is deemed to have appeal from a parental termination or been filed under Rule 26.1(b) on that date, child protection case. and the appeal is governed by the rules for accelerated appeals. A separate notice of (c) Remand for New Trial. If the judgment of appeal need not be filed. A copy of the order the appellate court reverses and remands a granting the petition must be filed with the parental termination or child protection case trial court clerk. for a new trial, the judgment must instruct the trial court to commence the new trial no later 28.4. Accelerated Appeals in Parental than 180 days after the mandate is issued by Termination and Child Protection Cases the appellate court.
(a) Application and Definitions. Notes and Comments
(1) Appeals in parental termination and Comment to 2011 Change: Section 51.014(d)-(f) child protection cases are governed by of the Texas Civil Practice and Remedies Code, as the rules of appellate procedure for amended in 2011, provides for appeals of orders not accelerated appeals, except as otherwise otherwise appealable when permitted by the trial provided in Rule 28.4. court. The 2011 amendments, which explicitly apply only to cases commenced on or after September 1, (2) In Rule 28.4: 2011, eliminated the prior requirement that the parties agree to the appeal and reinstated a requirement that (A) a “parental termination case” means the court of appeals also permit the appeal. Act of May a suit in which termination of the 25, 2011, 82nd Leg., R.S., ch. 203, §§ 3.01, 6.01
35 [HB274], amending Act of May 27, 2005, 79th Leg., 29.3. Temporary Orders of Appellate Court R.S., ch. 1051 [HB1294], §§ 1-2, 2005 Tex. Gen. Laws 3512, 3512-3513 and Act of May 17, 2001, 77th When an appeal from an interlocutory order is Leg., R.S., Ch. 1389 [HB978], § 1.2001 Tex. Gen. perfected, the appellate court may make any Laws 3575. The amendments necessitated the temporary orders necessary to preserve the parties' addition of Rule 28.3 and the adoption of Rule of Civil rights until disposition of the appeal and may require Procedure 168, which governs the procedure for appropriate security. But the appellate court must not obtaining permission to appeal from the trial court. suspend the trial court's order if the appellant's rights would be adequately protected by supersedeas or New Rule 283 applies only to appeals in cases that another order made under Rule 24. were filed in the trial court on or after September 1, 2011. Rule 28.2 applies only to appeals in cases that 29.4. Enforcement of Temporary Orders were filed in the trial court before September 1, 2011. While an appeal from an interlocutory order is Rule of Civil Procedure 168 clarifies that the trial pending, only the appellate court in which the appeal court’s permission to appeal should be included in the is pending may enforce the order. But the appellate order to be appealed rather than in a separate order. court may refer any enforcement proceeding to the As stated in Rule 28.3(c), if a prior order containing trial court with instructions to: the trial court’s ruling is amended to include such permission, the time for appeal runs from the amended (a) hear evidence and grant appropriate relief; or order. Rule 28.3(k) further clarifies that if the petition is granted, appeal is thereby perfected, and the appeal (b) make findings and recommendations and proceeds as an accelerated appeal, with all deadlines - report them to the appellate court. including deadlines and obligations for preparing the record - running from the date the petition was granted. 29.5. Further Proceedings in Trial Court A separate notice of appeal need not be filed. The petition procedure in Rule 28.3 is intended to be While an appeal from an interlocutory order is similar to the Rule 53 procedure governing petitions pending, the trial court retains jurisdiction of the case for review in the Supreme Court. and unless prohibited by statute may make further orders, including one dissolving the order complained Rule 29. Orders Pending Interlocutory Appeal in of on appeal. If permitted by law, the trial court may Civil Cases proceed with a trial on the merits. But the court must not make an order that: 29.1. Effect of Appeal (a) is inconsistent with any appellate court Perfecting an appeal from an order granting temporary order; or interlocutory relief does not suspend the order appealed from unless: (b) interferes with or impairs the jurisdiction of the appellate court or effectiveness of any (a) the order is superseded in accordance with relief sought or that may be granted on 29.2; or appeal.
(b) the appellant is entitled to supersede the 29.6. Review of Further Orders order without security by filing a notice of appeal. (a) Motion to Review Further Orders. While an appeal from an interlocutory order is 29.2. Security pending, on a party's motion or on the appellate court's own initiative, the appellate The trial court may permit an order granting court may review the following: interlocutory relief to be superseded pending an appeal from the order, in which event the appellant may (1) a further appealable interlocutory supersede the order in accordance with Rule 24. If the order concerning the same subject trial court refuses to permit the appellant to supersede matter; and the order, the appellant may move the appellate court to review that decision for abuse of discretion. (2) any interlocutory order that interferes with or impairs the effectiveness of the
36 relief sought or that may be granted on restricted appeals. appeal. Notes and Comments (b) Record. The party filing the motion may rely on the original record or may file a Comment to 1997 change: This is former Rule 45. supplemental record with the motion. The appeal by writ of error procedure is repealed. A procedure for an appeal filed within 6 months — Notes and Comments called a restricted appeal — is substituted. This rule sets out who may take a restricted appeal. Rules 25.1 Comment to 1997 change: This is former Rule 43. and 26.1 set out the method of perfection and the time The provision in the former rule that an appeal from for perfecting the appeal. an order certifying a class suspends the order is repealed. The provision in the former rule that an order denying interlocutory relief cannot be suspended is Rule 31. Appeals in Habeas Corpus, Bail, and omitted as unnecessary because the rule provides for Extradition Proceedings in Criminal Cases superseding only orders granting relief. No substantive change is intended. The provision in former Rule 31.1. Filing the Record; Submission 43(d) prohibiting the trial court from making an order granting substantially the same relief as the order When written notice of appeal from a judgment or appealed is repealed as being too broad. The order in a habeas corpus or bail proceeding is filed, the provisions of former Rule 43(g) regarding the mandate trial court clerk must prepare and certify the clerk’s are moved to Rule 18.6 and 18.7. The provision of record and, if the appellant requests, the court reporter former Rule 43(h) regarding rehearings is moved to must prepare and certify a reporter’s record. The clerk Rule 49.4. must send the clerk’s record and the court reporter must send the reporter’s record to the appellate court Comment to 2002 change: Rule 29.5 is amended within 15 days after the notice of appeal is filed. On to acknowledge that a trial court may be prohibited by reasonable explanation, the appellate court may law from proceeding to trial during the pendency of an shorten or extend the time to file the record. When the interlocutory appeal, as for example by section appellate court receives the record, the court will — if 51.014(b) of the Texas Civil Practice and Remedies it desires briefs — set the time for filing briefs, and Code. will set the appeal for submission.
Comment to 2008 change: Rule 29.5 is amended 31.2. Hearing to be consistent with Section 51.014(b) of the Civil Practice and Remedies Code, as amended in 2003, An appeal in a habeas corpus or bail proceeding staying all proceedings in the trial court pending will be heard at the earliest practicable time. The resolution of interlocutory appeals of class applicant need not personally appear, and the appeal certification orders, denials of summary judgments will be heard and determined upon the law and the based on assertions of immunity by governmental facts shown by the record. The appellate court will not officers or employees, and orders granting or denying review any incidental question that might have arisen a governmental unit’s plea to the jurisdiction. on the hearing of the application before the trial court. The sole purpose of the appeal is to do substantial justice to the parties. Rule 30. Restricted Appeals to Court of Appeals in Civil Cases 31.3. Orders on Appeal
A party who did not participate—either in person The appellate court will render whatever or through counsel—in the hearing that resulted in the judgment and make whatever orders the law and the judgment complained of and who did not timely file a nature of the case require. The court may make an postjudgment motion or request for findings of fact appropriate order relating to costs, whether allowing and conclusions of law, or a notice of appeal within costs and fixing the amount, or allowing no costs. the time permitted by Rule 26.1(a), may file a notice of appeal within the time permitted by Rule 26.1(c). 31.4. Stay of Mandate Restricted appeals replace writ of error appeals to the court of appeals. Statutes pertaining to writ of error (a) When Motion for Stay Required. Despite appeals to the court of appeals apply equally to Rule 18 or any other of these rules, in the
37 following circumstances a party who in good grant discretionary review. If the Court of Criminal faith intends to seek discretionary review Appeals grants discretionary review, that court's must — within 15 days after the court of judgment is final and conclusive. In either case, no appeals renders judgment — file with the further application in the same case can be made for court of appeals clerk a motion for stay of the writ unless the law provides otherwise. mandate, to which is appended the party's petition for discretionary review showing 31.6. Defendant Detained by Other Than Officer reasons why the Court of Criminal Appeals should review the appellate court judgment: If the defendant is held by a person other than an officer, the sheriff receiving the appellate court (1) when a court of appeals affirms the mandate so ordering must immediately cause the judgment of the trial court in an defendant to be discharged, for which discharge the extradition matter and thereby sanctions mandate is sufficient authority. a defendant's extradition; or 31.7. Judgment to be Certified (2) when a court of appeals reverses the trial court’s judgment in a bail matter — The appellate court clerk will certify the court's including bail pending appeal under judgment to the officer holding the defendant in Code of Criminal Procedure article custody or, if the defendant is held by a person other 44.04(g) — and thereby grants or than an officer, to the appropriate sheriff. reduces the amount of bail. Notes and Comments (b) Determination of the Motion. The clerk must promptly submit the motion and appendix to Comment to 1997 change: This is former Rule 44. the court of appeals, or to one or more judges Since the purpose of the appeal is to do substantial as the court deems appropriate, for immediate justice, it is extended to both parties in recognition that consideration and determination. both parties now have the right to appeal. Other nonsubstantive changes are made. (1) If the motion for stay is granted, the clerk will immediately forward the petition for discretionary review to the clerk of the Rule 32. Docketing Statement Court of Criminal Appeals. 32.1. Civil Cases (2) If the motion is denied, the clerk will issue a mandate in accordance with the Promptly upon filing the notice of appeal in a civil court of appeals' judgment. case, the appellant must file in the appellate court a docketing statement that includes the following (c) Denial of Stay. If the motion for stay is denied information: under 31.4(b)(2), the losing party may then present the motion and appendix to the clerk (a) (1) if the appellant filing the statement has of the Court of Criminal Appeals, who will counsel, the name of that appellant and promptly submit them to the Court, or to one the name, address, telephone number, or more judges as the Court deems fax number, if any, and State Bar of appropriate, for immediate consideration and Texas identification number of the determination. The Court of Criminal appellant's lead counsel; or Appeals may deny the motion or stay or recall the mandate. If the mandate is stayed or (2) if the appellant filing the statement is recalled, the clerk of the Court of Criminal not represented by an attorney, that Appeals will file the petition for party’s name, address, telephone discretionary review and process the case number, and fax number, if any; in accordance with Rule 68.7. (b) the date the notice of appeal was filed in the 31.5. Judgment Conclusive trial court and, if mailed to the trial court clerk, the date of mailing; The court of appeals' judgment is final and conclusive if the Court of Criminal Appeals does not (c) the trial court's name and county, the name of
38 the judge who tried the case, and the date the (4) if the trial court signed an order under judgment or order appealed from was signed; Texas Rule of Civil Procedure 145, the court’s findings regarding the (d) the date of filing of any motion for new trial, appellant’s ability to afford costs and the motion to modify the judgment, request for date that the order was signed; findings of fact, motion to reinstate, or other filing that affects the time for perfecting the (l) whether the appellant has filed or will file appeal; a supersedeas bond; and
(e) the names of all other parties to the trial (m) any other information the appellate court court's judgment or the order appealed from, requires. and: 32.2. Criminal Cases (1) if represented by counsel, their lead counsel's names, addresses, telephone Upon perfecting the appeal in a criminal case, the numbers, and fax numbers, if any; or appellant must file in the appellate court a docketing statement that includes the following information: (2) if not represented by counsel, the name, address, and telephone number of the (a) (1) if the appellant has counsel, the name party, or a statement that the appellant of the appellant and the name, address, diligently inquired but could not telephone number, fax number, if any, discover that information; and State Bar of Texas identification number of the appellant’s counsel, and (f) the general nature of the case — for whether the counsel is appointed or example, personal injury, breach of contract, retained; or or temporary injunction; (2) if the appellant is not represented by (g) whether the appeal's submission should be an attorney, that party's name, address, given priority, whether the appeal is an telephone number, and fax number, if accelerated one under Rule 28 or another rule any; or statute, and whether it is a parental termination or child protection case, as (b) the date the notice of appeal was filed in the defined in Rule 28.4; trial court and, if mailed to the trial court clerk, the date of mailing; (h) whether the appellant has requested or will request a reporter’s record, and whether the (c) the trial court's name and county, and the trial was electronically recorded; name of the judge who tried the case;
(i) the name of the court reporter; (d) the date the trial court imposed or suspended sentence in open court, or the date (j) whether the appellant intends to seek the judgment or order appealed from was temporary or ancillary relief while the appeal signed; is pending; (e) the date of filing any motion for new trial, (k) if the appellant filed a Statement of Inability motion in arrest of judgment, or any other to Afford Payment of Court Costs in the trial filing that affects the time for perfecting the court: appeal;
(1) the date that the Statement was filed; (f) the offense charged and the date of the offense; (2) the date of filing of any motion challenging the Statement; (g) the defendant's plea;
(3) the date of any hearing on the appellant’s (h) whether the trial was jury or nonjury; ability to afford costs; and (i) the punishment assessed;
39 specificity to make the trial court (j) whether the appeal is from a pretrial order; aware of the complaint, unless the specific grounds were apparent (k) whether the appeal involves the validity of a from the context; and statute, ordinance, or rule; (B) complied with the requirements of (l) whether a reporter’s record has been or will the Texas Rules of Civil or Criminal be requested, and whether the trial was Evidence or the Texas Rules of Civil electronically recorded; or Appellate Procedure; and
(m) the name of the court reporter; (2) the trial court:
(n) (1) the dates of filing of any motion and (A) ruled on the request, objection, or affidavit of indigence; motion, either expressly or implicitly; or (2) the date of any hearing; (B) refused to rule on the request, (3) the date of any order; and objection, or motion, and the complaining party objected to the (4) whether the motion was granted or refusal. denied; and (b) Ruling by Operation of Law. In a civil case, (o) any other information the appellate court the overruling by operation of law of a requires. motion for new trial or a motion to modify the judgment preserves for appellate review a 32.3. Supplemental Statements complaint properly made in the motion, unless taking evidence was necessary to Any party may file a statement supplementing or properly present the complaint in the trial correcting the docketing statement. court.
32.4. Purpose of Statement (c) Formal Exception and Separate Order Not Required. Neither a formal exception to a The docketing statement is for administrative trial court ruling or order nor a signed, purposes and does not affect the appellate court's separate order is required to preserve a jurisdiction. complaint for appeal.
Notes and Comments (d) Sufficiency of Evidence Complaints in Nonjury Cases. In a nonjury case, a Comment to 1997 change: The rule is new. complaint regarding the legal or factual insufficiency of the evidence - including a complaint that the damages found by the Rule 33. Preservation of Appellate Complaints court are excessive or inadequate, as distinguished from a complaint that the trial 33.1. Preservation; How Shown court erred in refusing to amend a fact finding or to make an additional finding of fact - may (a) In General. As a prerequisite to presenting a be made for the first time on appeal in the complaint for appellate review, the record complaining party’s brief. must show that: 33.2. Formal Bills of Exception (1) the complaint was made to the trial court by a timely request, objection, or motion To complain on appeal about a matter that would that: not otherwise appear in the record, a party must file a formal bill of exception. (A) stated the grounds for the ruling that the complaining party sought from (a) Form. No particular form of words is the trial court with sufficient required in a bill of exception. But the
40 objection to the court's ruling or action, and people who observed the matter to which the ruling complained of, must be stated with the bill of exception is addressed. The sufficient specificity to make the trial court affidavits must attest to the correctness aware of the complaint. of the bill as presented by the party. The matters contained in that bill of (b) Evidence. When the appellate record contains exception may be controverted and the evidence needed to explain a bill of maintained by additional affidavits filed exception, the bill itself need not repeat the by any party within ten days after the evidence, and a party may attach and filing of that bill. The truth of the bill of incorporate a transcription of the evidence exception will be determined by the certified by the court reporter. appellate court.
(c) Procedure. (d) Conflict. If a formal bill of exception conflicts with the reporter’s record, the bill (1) The complaining party must first present controls. a formal bill of exception to the trial court. (e) Time to file.
(2) If the parties agree on the contents of the (1) Civil Cases. In a civil case, a formal bill bill of exception, the judge must sign the of exception must be filed no later than bill and file it with the trial court clerk. If 30 days after the filing party’s notice of the parties do not agree on the contents appeal is filed. of the bill, the trial judge must — after notice and hearing — do one of the (2) Criminal Cases. In a criminal case, a following things: formal bill of exception must be filed:
(A) sign the bill of exception and file it (A) no later than 60 days after the trial with the trial court clerk if the judge court pronounces or suspends finds that it is correct; sentence in open court; or
(B) suggest to the complaining party (B) if a motion for new trial has been those corrections to the bill that the timely filed, no later than 90 days judge believes are necessary to after the trial court pronounces or make it accurately reflect the suspends sentence in open court. proceedings in the trial court, and if the party agrees to the corrections, (3) Extension of Time. The appellate court have the corrections made, sign the may extend the time to file a formal bill bill, and file it with the trial court of exception if, within 15 days after the clerk; or deadline for filing the bill, the party files in the appellate court a motion (C) if the complaining party will not complying with Rule 10.5(b). agree to the corrections suggested by the judge, return the bill to the (f) Inclusion in Clerk’s Record. When filed, a complaining party with the judge's formal bill of exception should be included in refusal written on it, and prepare, the appellate record. sign, and file with the trial court clerk such bill as will, in the judge's Notes and Comments opinion, accurately reflect the proceedings in the trial court. Comment to 1997 change: This is former Rule 52. Subdivision 33.1 is rewritten. Former Rule 52(b), (3) If the complaining party is dissatisfied regarding offers of proof, is omitted as unnecessary. with the bill of exception filed by the See TEX. R. CIV. EVID. 103; TEX. R. CRIM. EVID. judge under (2)(C), the party may file 103. Subdivision 33.2 is also rewritten and the with the trial court clerk the bill that was procedure is more definitely stated. Former Rule rejected by the judge. That party must 52(d), regarding motions for new trial, is omitted as also file the affidavits of at least three unnecessary. See TEX. R. CIV. P. 324(a) & (b).
41 Comment to 2002 change: The last sentence of (3) the court's docket sheet; former Rule 52(d) of the Rules of Appellate Procedure has been reinstated in substance. (4) the court's charge and the jury's verdict, or the court's findings of fact and conclusions of law; Rule 34. Appellate Record (5) the court's judgment or other order that is 34.1. Contents being appealed;
The appellate record consists of the clerk’s record (6) any request for findings of fact and and, if necessary to the appeal, the reporter’s record. conclusions of law, any post-judgment Even if more than one notice of appeal is filed, there motion, and the court's order on the should be only one appellate record in a case. motion;
34.2. Agreed Record (7) the notice of appeal;
By written stipulation filed with the trial court (8) any formal bill of exception; clerk, the parties may agree on the contents of the appellate record. An agreed record will be presumed (9) any request for a reporter’s record, to contain all evidence and filings relevant to the including any statement of points or appeal. To request matter to be included in the agreed issues under Rule 34.6(c); record, the parties must comply with the procedures in Rules 34.5 and 34.6. (10) any request for preparation of the clerk’s record; 34.3. Agreed Statement of the Case (11) in civil cases, a certified bill of costs, In lieu of a reporter’s record, the parties may agree including the cost of preparing the on a brief statement of the case. The statement must be clerk’s record, showing credits for filed with the trial court clerk and included in the payments made; appellate record. (12) in criminal cases, the trial court's 34.4. Form. certification of the defendant's right of appeal under Rule 25.2; and The Supreme Court and Court of Criminal Appeals will prescribe the form of the appellate (13) subject to (b), any filing that a party record. designates to have included in the record. 34.5. Clerk’s Record (b) Request for Additional Items. (a) Contents. Unless the parties designate the filings in the appellate record by agreement (1) Time for Request. At any time before under Rule 34.2, the record must include the clerk’s record is prepared, any party copies of the following: may file with the trial court clerk a written designation specifying items to (1) in civil cases, all pleadings on which the be included in the record. trial was held; (2) Request Must be Specific. A party (2) in criminal cases, the indictment or requesting that an item be included in the information, any special plea or defense clerk’s record must specifically describe motion that was presented to the court the item so that the clerk can readily and overruled, any written waiver, any identify it. The clerk will disregard a written stipulation, and, in cases in general designation, such as one for “all which a plea of guilty or nolo contendere papers filed in the case.” has been entered, any documents executed for the plea; (3) Requesting Unnecessary Items. In a civil
42 case, if a party requests that more items than necessary be included in the clerk’s (f) Original Documents. If the trial court record or any supplement, the appellate determines that original documents filed with court may — regardless of the appeal's the trial court clerk should be inspected by the outcome — require that party to pay the appellate court or sent to that court in lieu of costs for the preparation of the copies, the trial court must make an order for unnecessary portion. the safekeeping, transportation, and return of those original documents. The order must list (4) Failure to Timely Request. An appellate the original documents and briefly describe court must not refuse to file the clerk’s them. All the documents must be arranged in record or a supplemental clerk’s record their listed sequence and bound firmly because of a failure to timely request together. On any party's motion or its own items to be included in the clerk’s record. initiative, the appellate court may direct the trial court clerk to send it any original (c) Supplementation. document.
(1) If a relevant item has been omitted from (g) Additional Copies of Clerk’s Record in the clerk’s record, the trial court, the Criminal Cases. In a criminal case, the appellate court, or any party may by clerk’s record must be made in duplicate, and letter direct the trial court clerk to in a case in which the death penalty was prepare, certify, and file in the appellate assessed, in triplicate. The trial court clerk court a supplement containing the must retain the copy or copies for the parties omitted item. to use with the court’s permission.
(2) If the appellate court in a criminal case (h) Clerk May Consult With Parties. The clerk orders the trial court to prepare and file may consult with the parties concerning the findings of fact and conclusions of law contents of the clerk’s record. as required by law, or certification of the defendant's right of appeal as required by 34.6. Reporter’s Record these rules, the trial court clerk must prepare, certify, and file in the appellate (a) Contents. court a supplemental clerk’s record containing those findings and (1) Stenographic Recording. If the conclusions. proceedings were stenographically recorded, the reporter’s record consists (3) Any supplemental clerk’s record will be of the court reporter’s transcription of so part of the appellate record. much of the proceedings, and any of the exhibits, that the parties to the appeal (d) Defects or Inaccuracies. If the clerk’s record designate. is defective or inaccurate, the appellate clerk must inform the trial court clerk of the defect (2) Electronic Recording. If the proceedings or inaccuracy and instruct the clerk to make were electronically recorded, the the correction. reporter’s record consists of certified copies of all tapes or other audio-storage (e) Clerk’s Record Lost or Destroyed. If a devices on which the proceedings were filing designated for inclusion in the clerk’s recorded, any of the exhibits that the record has been lost or destroyed, the parties parties to the appeal designate, and may, by written stipulation, deliver a copy of certified copies of the logs prepared by that item to the trial court clerk for inclusion the court recorder under Rule 13.2. in the clerk’s record or a supplement. If the parties cannot agree, the trial court must — (b) Request for preparation. on any party's motion or at the appellate court's request — determine what constitutes (1) Request to Court Reporter. At or before an accurate copy of the missing item and the time for perfecting the appeal, the order it to be included in the clerk’s record or appellant must request in writing that the a supplement. official reporter prepare the reporter’s
43 record. The request must designate the (5) Criminal Cases. In a criminal case, if exhibits to be included. A request to the the statement contains a point court reporter — but not the court complaining that the evidence is recorder — must also designate the insufficient to support a finding of guilt, portions of the proceedings to be the record must include all the evidence included. admitted at the trial on the issue of guilt or innocence and punishment. (2) Filing. The appellant must file a copy of the request with the trial court clerk. (d) Supplementation. If anything relevant is omitted from the reporter’s record, the trial (3) Failure to Timely Request. An appellate court, the appellate court, or any party may court must not refuse to file a reporter’s by letter direct the official court reporter to record or a supplemental reporter’s prepare, certify, and file in the appellate court record because of a failure to timely a supplemental reporter’s record containing request it. the omitted items. Any supplemental reporter’s record is part of the appellate (c) Partial Reporter’s Record. record.
(1) Effect on Appellate Points or Issues. If (e) Inaccuracies in the Reporter’s Record. the appellant requests a partial reporter’s record, the appellant must include in the (1) Correction of Inaccuracies by request a statement of the points or issues Agreement. The parties may agree to to be presented on appeal and will then correct an inaccuracy in the reporter’s be limited to those points or issues. record, including an exhibit, without the court reporter's recertification. (2) Other Parties May Designate Additions. Any other party may designate (2) Correction of Inaccuracies by Trial additional exhibits and portions of the Court. If the parties cannot agree on testimony to be included in the reporter’s whether or how to correct the reporter's record. record so that the text accurately discloses what occurred in the trial court (3) Costs; Requesting Unnecessary and the exhibits are accurate, the trial Matter. Additions requested by another court must – after notice and hearing – party must be included in the reporter’s settle the dispute. If the court finds any record at the appellant's cost. But if the inaccuracy, it must order the court trial court finds that all or part of the reporter to conform the reporter’s record designated additions are unnecessary to (including text and any exhibits) to what the appeal, the trial court may order the occurred in the trial court, and to file other party to pay the costs for the certified corrections in the appellate preparation of the unnecessary additions. court. This paragraph does not affect the appellate court's power to tax costs (3) Correction After Filing in Appellate differently. Court. If the dispute arises after the reporter’s record has been filed in the (4) Presumptions. The appellate court must appellate court, that court may submit presume that the partial reporter’s record the dispute to the trial court for designated by the parties constitutes the resolution. The trial court must then entire record for purposes of reviewing proceed as under subparagraph (e)(2). the stated points or issues. This presumption applies even if the (f) Reporter’s Record Lost or Destroyed. An statement includes a point or issue appellant is entitled to a new trial under the complaining of the legal or factual following circumstances: insufficiency of the evidence to support a specific factual finding identified in (1) if the appellant has timely requested that point or issue. a reporter’s record;
44 (2) if, without the appellant's fault, a any original exhibit. significant exhibit or a significant portion of the court reporter's notes and (h) Additional Copies of Reporter’s Record in records has been lost or destroyed or – if Criminal Cases. In a criminal case in which a the proceedings were electronically party requests a reporter’s record, the court recorded – a significant portion of the reporter must prepare a duplicate of the recording has been lost or destroyed or is reporter’s record and file it with the trial court inaudible; clerk. In a case where the death penalty was assessed, the court reporter must prepare two (3) if the lost, destroyed, or inaudible duplicates of the reporter’s record. portion of the reporter’s record, or the lost or destroyed exhibit, is necessary to (i) Supreme Court and Court of Criminal the appeal's resolution; and Appeals May Set Fee. From time to time, the Supreme Court and the Court of Criminal (4) if the lost, destroyed or inaudible portion Appeals may set the fee that the court of the reporter's record cannot be reporters may charge for preparing the replaced by agreement of the parties, or reporter’s record. the lost or destroyed exhibit cannot be replaced either by agreement of the Notes and Comments parties or with a copy determined by the trial court to accurately duplicate with Comment to 1997 change: Former Rules 50, 51 reasonable certainty the original exhibit. and 53 are merged. Clerk’s record is substituted for transcript, and reporter’s record is substituted for (g) Original Exhibits. statement of facts throughout the rules. In subdivision 34.2, the requisites of an agreed record are more (1) Reporter May Use in Preparing clearly stated. Former Rule 50(d), regarding the Reporter’s Record. At the court burden to file a complete record, is repealed. reporter's request, the trial court clerk Subdivision 34.4 is from former Rules 51(c) and must give all original exhibits to the 53(h). Former Rule 50(f), regarding a violation of the reporter for use in preparing the rules, is repealed. Subparagraph 34.5(b)(3) allows the reporter’s record. Unless ordered to appellate court to tax costs against a party for requiring include original exhibits in the reporter’s unnecessary items to be included in the clerk’s record. record, the court reporter must return the Paragraph 34.5(c) is new and provides for original exhibits to the clerk after supplementation of the clerk’s record. The provisions copying them for inclusion in the of paragraph 34.5(d) are from former Rule 55(b). The reporter’s record. If someone other than provisions of paragraph 34.5(e) are from former Rule the trial court clerk possesses an original 50(e). Paragraph 34.5(h) specifically allows the clerk exhibit, either the trial court or the to consult with the parties to determine the contents of appellate court may order that person to the clerk’s record. Paragraph 34.6(a), defining the deliver the exhibit to the trial court clerk. reporter’s record, is new. Former Rules 53(b) (Other Requests), (d) (Partial Statement), and (e) (2) Use of Original Exhibits by Appellate (Unnecessary Portions) are merged into paragraph Court. If the trial court determines that 34.6(c). Paragraph 34.6(d) is new. Paragraph 34.6(e) original exhibits should be inspected by is from former Rule 55. Paragraph 34.6(f) is from the appellate court or sent to that court in former Rule lieu of copies, the trial court must make 50(d). The provisions of former Rules 53(f) an order for the safekeeping, (Certification by Court Reporter) and (h) (Form) are transportation, and return of those moved to the Order of the Supreme Court and the exhibits. The order must list the exhibits Court of Criminal Appeals on the preparation of the and briefly describe them. To the extent record. Former Rule 53(I) (Narrative Statement) is practicable, all the exhibits must be repealed. The provisions of former Rule 53(j) (Free arranged in their listed order and bound Statement of Facts) are moved to Rule 20. Former firmly together before being sent to the Rule 53(k) (Duty of Appellant to File) is repealed; it is appellate clerk. On any party's motion or now the duty of the court reporter to file the reporter’s its own initiative, the appellate court record. Paragraph 34.6(g) is from former Rule 51(d). may direct the trial court clerk to send it Former Rule 53(g) is now paragraph 34.6(I). Former
45 Rule 53(l) is now paragraph 34.6(h). The need for two (c) if a motion for new trial is granted, within 60 duplicate records in a death penalty case was created days after the order granting the motion is by the habeas corpus provision in Code of Criminal signed. Procedure article 11.071. 35.3. Responsibility for Filing Record Comment to 2002 change: Rule 34.5(a) is amended to require that the record in a criminal case (a) Clerk’s Record. The trial court clerk is include the certification of defendant's right of appeal; responsible for preparing, certifying, and see Rule 25.2(d). Rule 34.5(c) is amended to make timely filing the clerk’s record if: clear that an appellate court may order the trial court to make such a certification for inclusion in a (1) a notice of appeal has been filed, and supplemental clerk's record. Subparagraphs 34.6(e) in criminal proceedings, the trial court and (f) are amended to clarify the application to has certified the defendant's right of exhibits. The language in subparagraph (e)(2) appeal, as required by Rule 25.2(d); and referring to the text of the record is simplified without substantive change. Subparagraph (e)(3) incorporates (2) the party responsible for paying for the the procedures specified in (e)(2). The language in preparation of the clerk’s record has paid subparagraph (f) is clarified to require agreement only the clerk's fee, has made satisfactory as to the portion of the text at issue, and to provide that arrangements with the clerk to pay the the trial court may determine that a copy of an exhibit fee, or is entitled to appeal without should be used even if the parties cannot agree. paying the fee.
(b) Reporter’s Record. The official or deputy Rule 35. Time to File Record; Responsibility for reporter is responsible for preparing, Filing Record certifying, and timely filing the reporter’s record if: 35.1. Civil Cases (1) a notice of appeal has been filed; The appellate record must be filed in the appellate court within 60 days after the judgment is signed, (2) the appellant has requested that the except as follows: reporter’s record be prepared; and
(a) if Rule 26.1(a) applies, within 120 days after (3) the party responsible for paying for the the judgment is signed; preparation of the reporter’s record has paid the reporter’s fee, or has made (b) if Rule 26.1(b) applies, within 10 days after satisfactory arrangements with the the notice of appeal is filed; or reporter to pay the fee, or is entitled to appeal without paying the fee. (c) if Rule 26.1(c) applies, within 30 days after the notice of appeal is filed. (c) Courts to Ensure Record Timely Filed. The trial and appellate courts are jointly 35.2. Criminal Cases responsible for ensuring that the appellate record is timely filed. The appellate court The appellate record must be filed in the appellate may extend the deadline to file the record if court: requested by the clerk or reporter. Each extension must not exceed 30 days in an (a) if a motion for new trial is not filed, within 60 ordinary or restricted appeal, or 10 days in an days after the date the sentence is imposed or accelerated appeal. The appellate court must suspended in open court or the order appealed allow the record to be filed late when the from is signed; delay is not the appellant’s fault, and may do so when the delay is the appellant’s fault. The (b) if a timely motion for new trial is filed and appellate court may enter any order necessary denied, within 120 days after the date the to ensure the timely filing of the appellate sentence is imposed or suspended in open record. court; or
46 Notes and Comments
Comment to 1997 change: This is former Rule 54. Rule 37. Duties of the Appellate Clerk on In subdivision 35.1, the time to file the record in civil Receiving the Notice of Appeal and Record cases is based on the date the judgment is signed except in accelerated and restricted appeals, in which 37.1. On Receiving the Notice of Appeal the time to file the record is based on the date the notice of appeal is filed. Subdivision 35.3 is new and If the appellate clerk determines that the notice of makes it the responsibility of the trial court clerk and appeal or certification of defendant's right of appeal in court reporter to file the record. Former Rule 54(c), a criminal case is defective, the clerk must notify the providing for an extension of time to file the record, is parties of the defect so that it can be remedied, if repealed as unnecessary. The trial court clerk and court possible. If a proper notice of appeal or certification of reporter should make arrangements with the court of a criminal defendant's right of appeal is not filed in the appeals if additional time is required to file the record, trial court within 30 days of the date of the clerk's as suggested in Rule 37.3. notice, the clerk must refer the matter to the appellate court, which will make an appropriate order under this Rule 36. Agency Record in Administrative rule or Rule 34.5(c)(2). Appeals 37.2. On Receiving the Record 36.1. Scope On receiving the clerk’s record or the reporter’s This rule applies only to cases involving judicial record, the appellate clerk must determine whether review of state agency decisions in contested cases each complies with the Supreme Court’s and Court of under the Administrative Procedure Act. Criminal Appeals’ order on preparation of the record. If so, the clerk must endorse on each the date of 36.2. Inclusion in Appellate Record receipt, file it, and notify the parties of the filing and the date. If not, the clerk must endorse on the clerk’s The record of an agency proceeding filed in the record or reporter’s record — whichever is defective trial court may be included in either the clerk’s record — the date of receipt and return it to the official or the reporter’s record. responsible for filing it. The appellate court clerk must specify the defects and instruct the official to correct 36.3. Correcting the Record the defects and return the record to the appellate court by a specified date. In a criminal case, the record must (a) Correction by Agreement. At any stage of not be posted on the Internet. the proceeding, the parties may agree to correct an agency record filed under Section 37.3. If No Record Filed 2001.175(b) of the Government Code to ensure that the agency record accurately (a) Notice of Late Record. reflects the contested case proceedings before the agency. The court reporter need not (1) Civil Cases. If the clerk’s record or recertify the agency record. reporter’s record has not been timely filed, the appellate clerk must send (b) Correction by Trial Court. If the parties notice to the official responsible for cannot agree to a correction to the agency filing it, stating that the record is late and record, the appellate court must — on any requesting that the record be filed within party's motion or its own incentive — send 30 days if an ordinary or restricted the question to the trial court. After notice appeal, or 10 days if an accelerated and hearing, the trial court must determine appeal. The appellate clerk must send a what constitutes an accurate copy of the copy of this notice to the parties and the agency record and order the agency to send trial court. If the clerk does not receive an accurate copy to the clerk of the court in the record within the stated period, the which the case is pending. clerk must refer the matter to the appellate court. The court must make Notes and Comments whatever order is appropriate to avoid further delay and to preserve the parties' Comment to 1997 change: The rule is new. rights.
47 following: (2) Criminal Cases. If the clerk’s record or reporter’s record has not been timely (a) Identity of Parties and Counsel. The brief filed, the appellate court clerk must refer must give a complete list of all parties to the the matter to the appellate court. The trial court's judgment or order appealed from, court must make whatever order is and the names and addresses of all trial and appropriate to avoid further delay and to appellate counsel, except as otherwise preserve the parties’ rights. provided in Rule 9.8.
(b) If No Clerk’s Record Filed Due to Appellant's (b) Table of Contents. The brief must have a Fault. If the trial court clerk failed to file the table of contents with references to the pages clerk’s record because the appellant failed of the brief. The table of contents must to pay or make arrangements to pay the indicate the subject matter of each issue or clerk’s fee for preparing the clerk’s record, point, or group of issues or points. the appellate court may — on a party’s motion or its own initiative — dismiss the (c) Index of Authorities. The brief must have an appeal for want of prosecution unless the index of authorities arranged alphabetically appellant was entitled to proceed without and indicating the pages of the brief where payment of costs. The court must give the the authorities are cited. appellant a reasonable opportunity to cure before dismissal. (d) Statement of the Case. The brief must state concisely the nature of the case (e.g., whether (c) If No Reporter’s Record Filed Due to it is a suit for damages, on a note, or involving Appellant's Fault. Under the following a murder prosecution), the course of circumstances, and if the clerk’s record has proceedings, and the trial court's disposition been filed, the appellate court may — after of the case. The statement should be first giving the appellant notice and a supported by record references, should reasonable opportunity to cure — consider seldom exceed one-half page, and should not and decide those issues or points that do not discuss the facts. require a reporter’s record for a decision. The court may do this if no reporter’s record has (e) Any Statement Regarding Oral Argument. been filed because: The brief may include a statement explaining why oral argument should or should not be (1) the appellant failed to request a permitted. Any such statement must not reporter’s record; or exceed one page and should address how the court’s decisional process would, or would (2) (A) appellant failed to pay or not, be aided by oral argument. As required make arrangements to pay the by Rule 39.7, any party requesting oral reporter's fee to prepare the argument must note that request on the front reporter’s record; and cover of the party’s brief.
(B) the appellant is not entitled to (f) Issues Presented. The brief must state proceed without payment of costs. concisely all issues or points presented for review. The statement of an issue or point Notes and Comments will be treated as covering every subsidiary question that is fairly included. Comment to 1997 change: Former Rules 56 and 57(a) are merged. Subdivisions 37.2 and 37.3 are new. (g) Statement of Facts. The brief must state concisely and without argument the facts pertinent to the issues or points presented. In Rule 38. Requisites of Briefs a civil case, the court will accept as true the facts stated unless another party contradicts 38.1. Appellant's Brief them. The statement must be supported by record references. The appellant’s brief must, under appropriate headings and in the order here indicated, contain the (h) Summary of the Argument. The brief must
48 contain a succinct, clear, and accurate required unless necessary to statement of the arguments made in the body supplement or correct the of the brief. This summary must not merely appellant's list; repeat the issues or points presented for review. (B) the appellee’s brief need not include a statement of the case, a statement (i) Argument. The brief must contain a clear and of the issues presented, or a concise argument for the contentions made, statement of facts, unless the with appropriate citations to authorities and appellee is dissatisfied with that to the record. portion of the appellant's brief; and
(j) Prayer. The brief must contain a short (C) the appendix to the appellee’s brief conclusion that clearly states the nature of the need not contain any item already relief sought. contained in an appendix filed by the appellant. (k) Appendix in Civil Cases. (2) When practicable, the appellee's brief (1) Necessary Contents. Unless voluminous should respond to the appellant's issues or impracticable, the appendix must or points in the order the appellant contain a copy of: presented those issues or points.
(A) the trial court’s judgment or (b) Cross-Points. other appealable order from which relief is sought; (1) Judgment Notwithstanding the Verdict. When the trial court renders judgment (B) the jury charge and verdict, if any, notwithstanding the verdict on one or or the trial court’s findings of fact more questions, the appellee must bring and conclusions of law, if any; and forward by cross-point any issue or point that would have vitiated the verdict or (C) the text of any rule, regulation, that would have prevented an affirmance ordinance, statute, constitutional of the judgment if the trial court had provision, or other law (excluding rendered judgment on the verdict. case law) on which the argument is Failure to bring forward by cross-point based, and the text of any contract or an issue or point that would vitiate the other document that is central to the verdict or prevent an affirmance of the argument. judgment waives that complaint. Included in this requirement is a point (2) Optional Contents. The appendix may that: contain any other item pertinent to the issues or points presented for review, (A) the verdict or one or more jury including copies or excerpts of relevant findings have insufficient court opinions, laws, documents on evidentiary support or are against which the suit was based, pleadings, the overwhelming preponderance of excerpts from the reporter’s record, and the evidence as a matter of fact; or similar material. Items should not be included in the appendix to attempt to (B) the verdict should be set aside avoid the page limits for the brief. because of improper argument of counsel. 38.2. Appellee's Brief (2) When Evidentiary Hearing Needed. (a) Form of Brief. The appellate court must remand a case to the trial court to take evidence if: (1) An appellee's brief must conform to the requirements of Rule 38.1, except that: (A) the appellate court has sustained a point raised by the appellant; and (A) the list of parties and counsel is not
49 (B) the appellee raised a cross-point that 34.6(c)(4) apply to the parties' appendixes. requires the taking of additional The appellate court need not review any part evidence. of the electronic recording.
38.3. Reply Brief (c) Supplemental Appendix. The appellate court may direct or allow a party to file a The appellant may file a reply brief addressing supplemental appendix containing a any matter in the appellee’s brief. However, the transcription of additional portions of the appellate court may consider and decide the case recording. before a reply brief is filed. (d) Inability to Pay. A party who cannot pay the 38.4. Deleted cost of an appendix must file the affidavit provided for by Rule 20. The party must also 38.5. Appendix for Cases Recorded Electronically state in the affidavit or a supplemental affidavit that the party has neither the access In cases where the proceedings were to the equipment necessary nor the skill electronically recorded, the following rules apply: necessary to prepare the appendix. If a contest to the affidavit is not sustained by (a) Appendix. written order, the court recorder must transcribe or have transcribed those portions (1) In General. At or before the time a of the recording that the party designates and party's brief is due, the party must file must file the transcription as that party's one copy of an appendix containing a appendix, along with all exhibits. transcription of all portions of the recording that the party considers (e) Inaccuracies. relevant to the appellate issues or points. Unless another party objects, the (1) Correction by Agreement. The parties transcription will be presumed accurate. may agree to correct an inaccuracy in the transcription of the recording. (2) Repetition Not Required. A party's appendix need not repeat evidence (2) Correction by Appellate or Trial Court. included in any previously filed If the parties dispute whether an appendix. electronic recording or transcription accurately discloses what occurred in the (3) Form. The form of the appendix and trial court but cannot agree on transcription must conform to any corrections, the appellate court may: specifications of the Supreme Court and Court of Criminal Appeals concerning (A) settle the dispute by reviewing the form of the reporter’s record except the recording; or that it need not have the reporter’s certificate. (B) submit the dispute to the trial court, which must — after notice (4) Notice. At the time the appendix is filed, and hearing — settle the dispute and the party must give written notice of the ensure that the recording or filing to all parties to the trial court's transcription is made to conform to judgment or order. The notice must what occurred in the trial court. specify, by referring to the index numbers in the court recorder's logs, (f) Costs. The actual expense of preparing the those parts of the recording that are appendixes or the amount prescribed for included in the appendix. The filing official reporters, whichever is less, is taxed party need not serve a copy of the as costs. The appellate court may disallow the appendix but must make a copy available cost of any portion of the appendixes that it to all parties for inspection and copying. considers surplusage or that does not conform to any specifications prescribed by (b) Presumptions. The same presumptions that the Supreme Court or Court of Criminal apply to a partial reporter’s record under Rule Appeals.
50 considers proper; or 38.6. Time to File Briefs (3) if an appellee’s brief is filed, the court (a) Appellant's Filing Date. Except in a habeas may regard that brief as correctly corpus or bail appeal, which is governed by presenting the case and may affirm the Rule 31, an appellant must file a brief within trial court's judgment upon that brief 30 days — 20 days in an accelerated appeal without examining the record. — after the later of: (b) Criminal Cases. (1) the date the clerk’s record was filed; or (1) Effect. An appellant's failure to timely (2) the date the reporter’s record was filed. file a brief does not authorize either dismissal of the appeal or, except as (b) Appellee's Filing Date. The appellee's brief provided in (4), consideration of the must be filed within 30 days — 20 days in an appeal without briefs. accelerated appeal — after the date the appellant's brief was filed. In a civil case, if (2) Notice. If the appellant's brief is not the appellant has not filed a brief as provided timely filed, the appellate clerk must in this rule, an appellee may file a brief within notify counsel for the parties and the trial 30 days — 20 days in an accelerated appeal court of that fact. If the appellate court — after the date the appellant's brief was due. does not receive a satisfactory response within ten days, the court must order the (c) Filing Date for Reply Brief. A reply brief, if trial court to immediately conduct a any, must be filed within 20 days after the hearing to determine whether the date the appellee's brief was filed. appellant desires to prosecute his appeal, whether the appellant is indigent, or, if (d) Modifications of Filing Time. On motion not indigent, whether retained counsel complying with Rule 10.5(b), the appellate has abandoned the appeal, and to make court may extend the time for filing a brief appropriate findings and and may postpone submission of the case. A recommendations. motion to extend the time to file a brief may be filed before or after the date a brief is due. (3) Hearing. In accordance with (2), the trial The court may also, in the interests of justice, court must conduct any necessary shorten the time for filing briefs and for hearings, make appropriate findings and submission of the case. recommendations, and have a record of the proceedings prepared, which record 38.7. Amendment or Supplementation — including any order and findings — must be sent to the appellate court. A brief may be amended or supplemented whenever justice requires, on whatever reasonable (4) Appellate Court Action. Based on the terms the court may prescribe. trial court's record, the appellate court may act appropriately to ensure that the 38.8. Failure of Appellant to File Brief appellant's rights are protected, including initiating contempt (a) Civil Cases. If an appellant fails to timely file proceedings against appellant's counsel. a brief, the appellate court may: If the trial court has found that the appellant no longer desires to prosecute (1) dismiss the appeal for want of the appeal, or that the appellant is not prosecution, unless the appellant indigent but has not made the necessary reasonably explains the failure and the arrangements for filing a brief, the appellee is not significantly injured by appellate court may consider the appeal the appellant's failure to timely file a without briefs, as justice may require. brief; 38.9. Briefing Rules to be Construed Liberally (2) decline to dismiss the appeal and give further direction to the case as it Because briefs are meant to acquaint the court
51 with the issues in a case and to present argument that will enable the court to decide the case, substantial compliance with this rule is sufficient, subject to the Rule 39. Oral Argument; Decision Without following. Argument
(a) Formal Defects. If the court determines that 39.1. Right to Oral Argument this rule has been flagrantly violated, it may require a brief to be amended, supplemented, A party who has filed a brief and who has timely or redrawn. If another brief that does not requested oral argument may argue the case to the comply with this rule is filed, the court may court unless the court, after examining the briefs, strike the brief, prohibit the party from filing decides that oral argument is unnecessary for any of another, and proceed as if the party had failed the following reasons: to file a brief. (a) the appeal is frivolous; (b) Substantive Defects. If the court determines, either before or after submission, that the case (b) the dispositive issue or issues have been has not been properly presented in the briefs, authoritatively decided; or that the law and authorities have not been properly cited in the briefs, the court may (c) the facts and legal arguments are adequately postpone submission, require additional presented in the briefs and record; or briefing, and make any other order necessary for a satisfactory submission of the case. (d) the decisional process would not be significantly aided by oral argument. Notes and Comments 39.2. Purpose of Argument Comment to 1997 change: This is former Rule 74. The rule is substantially rewritten. Paragraph 38.1(e) Oral argument should emphasize and clarify the now specifically allows a party to either present issues written arguments in the briefs. Counsel should not or points of error. Paragraphs 38.1(f) and (g) are new merely read from prepared text. Counsel should and require a brief to include a statement of facts and assume that all members of the court have read the summary of the argument. Paragraph 38.2(b) is new briefs before oral argument and counsel should be and gives specific requirements for cross-points. See prepared to respond to questions. A party should not also TEX. R. CIV. P. 324(c). Subdivision 38.3 is new refer to or comment on matters not involved in or and provides for a reply brief. Subdivision 38.4 pertaining to what is in the record. imposes a total brief limit of 90 pages on each party. Thus, if more than one party has filed a notice of 39.3. Time Allowed appeal, there will be multiple appellant’s, appellee’s, and reply briefs, but each party is limited to a total of The court will set the time that will be allowed for 90 pages. Subdivision 38.5 is new and provides for an argument. Counsel must complete argument in the appendix in cases recorded electronically in the trial time allotted and may continue after the expiration of court. Paragraph 38.6(b) now provides that the the allotted time only with permission of the court. appellee has 30 — rather than 25 — days to file a brief. Counsel is not required to use all the allotted time. The The provisions of former Rules 74(I) (Number of appellant must be allowed to conclude the argument. Copies), (j) (Briefs Typewritten or Printed), and (q) (Service of Briefs) are omitted as unnecessary. See 39.4. Number of Counsel Rule 9. Generally, only one counsel should argue for each Comment to 2002 change: Rule 38.6(d) is side. Except on leave of court, no more than two amended to clarify that an appellate court may counsel on each side may argue. Only one counsel may postpone the filing of any brief, not just the appellant's argue in rebuttal. brief. 39.5. Argument by Amicus Comment to 2008 change: A party may choose to include a statement in the brief regarding oral With leave of court obtained before the argument argument. The optional statement does not count and with a party's consent, an amicus curiae may share toward the briefing page limit. allotted time with that party. Otherwise, counsel for
52 amicus may not argue. 40.1. Civil Cases 39.6. When Only One Party Files a Brief The court of appeals may determine the order in If counsel for only one party has filed a brief, the which civil cases will be decided. But the following court may allow that party to argue. types of cases have precedence over all others:
39.7. Request and Waiver (a) a case given precedence by law;
A party desiring oral argument must note that (b) an accelerated appeal; and request on the front cover of the party’s brief. A party's failure to request oral argument waives the party's (c) a case that the court determines should be right to argue. But even if a party has waived oral given precedence in the interest of justice. argument, the court may direct the party to appear and argue. 40.2. Criminal Cases
39.8. Clerk’s Notice In cases not otherwise given precedence by law, the court of appeals must hear and determine a The clerk must send to the parties—at least 21 criminal appeal at the earliest possible time, having days before the date the case is set for argument or due regard for the parties' rights and for the proper submission without argument—a notice telling the administration of justice. parties: Reference (a) whether the court will allow oral argument or will submit the case without argument; See Code of Criminal Procedure article 44.01(f).
(b) the date of argument or submission Notes and Comments without argument; Comment on 1997 change: The provisions of (c) if argument is allowed, the time allotted former Rules 76, 77 and 78 are merged. Civil cases for argument; and involving the Railroad Commission, the State, and “cases submitted on oral argument for all parties” are (d) the names of the members of the panel to no longer given preference unless given preference by which the case will be argued or submitted, law. subject to change by the court.
A party's failure to receive the notice does not prevent Rule 41. Panel and En Banc Decision a case's argument or submission on the scheduled date. 41.1. Decision by Panel Notes and Comments (a) Constitution of Panel. Unless a court of Comment to 1997 change: This is former Rule 75. appeals with more than three justices votes to Technical and nonsubstantive changes are made. decide a case en banc, a case must be assigned for decision to a panel of the court Comment to 2008 change: Subdivision 39.1 is consisting of three justices, although not amended to provide for oral argument unless the court every member of the panel must be present determines it is unnecessary and to set out the reasons for argument. If the case is decided without why argument may be unnecessary. The appellate argument, three justices must participate in court must evaluate these reasons in view of the the decision. A majority of the panel, which traditional importance of oral argument. The court constitutes a quorum, must agree on the need not agree on, and generally should not announce, judgment. Except as otherwise provided in a specific reason or reasons for declining oral these rules, a panel's opinion constitutes the argument. court's opinion, and the court must render a judgment in accordance with the panel opinion. Rule 40. Order of Decision
53 (b) When Panel Cannot Agree on Judgment. (c) En Banc Consideration Disfavored. En After argument, if for any reason a member banc consideration of a case is not favored of the panel cannot participate in deciding a and should not be ordered unless necessary to case, the case may be decided by the two secure or maintain uniformity of the court's remaining justices. If they cannot agree on a decisions or unless extraordinary judgment, the chief justice of the court of circumstances require en banc consideration. appeals must: A vote to determine whether a case will be heard or reheard en banc need not be taken (1) designate another justice of the court to unless a justice of the court requests a vote. If sit on the panel to consider the case; a vote is requested and a majority of the court's members vote to hear or rehear the (2) request the Chief Justice of the Supreme case en banc, the en banc court will hear or Court to temporarily assign an eligible rehear the case. Otherwise, a panel of the justice or judge to sit on the panel to court will consider the case. consider the case; or 41.3. Precedent in Transferred Cases (3) convene the court en banc to consider the case. The reconstituted panel or the en In cases transferred by the Supreme Court from banc court may order the case reargued. one court of appeals to another, the court of appeals to which the case is transferred must decide the case in (c) When Court Cannot Agree on Judgment. accordance with the precedent of the transferor court After argument, if for any reason a member under principles of stare decisis if the transferee court's of a court consisting of only three justices decision otherwise would have been inconsistent with cannot participate in deciding a case, the case the precedent of the transferor court. The court's may be decided by the two remaining opinion may state whether the outcome would have justices. If they cannot agree on a judgment, been different had the transferee court not been that fact must be certified to the Chief Justice required to decide the case in accordance with the of the Supreme Court. The Chief Justice may transferor court's precedent. then temporarily assign an eligible justice or judge to sit with the court of appeals to Notes and Comments consider the case. The reconstituted court may order the case reargued. Comment to 1997 change: This is former Rule 79. The rule is reorganized. Paragraphs 41.1(b) and (c) are 41.2. Decision by En Banc Court amended to make clear that a three judge panel must hear the case. Therefore, only if a member of a panel (a) Constitution of En Banc Court. An en banc is lost after argument do the provisions for court consists of all members of the court appointment of another justice to break a deadlock who are not disqualified or recused and — if come into play. Paragraph 41.2(a) is amended to the case was originally argued before or define an en banc court. decided by a panel — any members of the panel who are not members of the court but Comment to 2008 change: Subdivisions 41.1 and remain eligible for assignment to the court. A 41.2 are amended to acknowledge the full authority of majority of the en banc court constitute a the Chief Justice of the Supreme Court to temporarily quorum. A majority of the en banc court must assign a justice or judge to hear a matter pending in an agree on a judgment. appellate court. The statutory provisions governing the assignment of judges to appellate courts are (b) When En Banc Court Cannot Agree on located in Chapters 74 and 75 of the Government Judgment. If a majority of an en banc court Code. Other minor changes are made for consistency. cannot agree on a judgment, that fact must be Subdivision 41.3 is added to require, in appellate cases certified to the Chief Justice of the Supreme transferred by the Supreme Court under Section Court. The Chief Justice may then 73.001 of the Government Code for docket temporarily assign an eligible justice or judge equalization or other purposes, that the transferee to sit with the court of appeals to consider the court must generally resolve any conflict between the case. The reconstituted court may order the precedent of the transferor court and the precedent of case reargued. the transferee court — or that of any other intermediate appellate court the transferee court otherwise would
54 have followed — by following the precedent of the withdrawal of the opinion. transferor court, unless it appears that the transferor court itself would not be bound by that precedent. The (d) Costs. Absent agreement of the parties, the rule requires the transferee court to “stand in the court will tax costs against the appellant. shoes” of the transferor court so that an appellate transfer will not produce a different outcome, based 42.2. Voluntary Dismissal in Criminal Cases on application of substantive law, than would have resulted had the case not been transferred. The (a) At any time before the appellate court's transferee court is not expected to follow the transferor decision, the appellate court may dismiss the court’s local rules or otherwise supplant its own local appeal upon the appellant's motion. The procedures with those of the transferor court. appellant and his or her attorney must sign the written motion to dismiss and file it in Rule 42. Dismissal duplicate with the appellate clerk, who must immediately send the duplicate copy to the 42.1. Voluntary Dismissal and Settlement in Civil trial court clerk. Cases (b) After the court of appeals hands down its (a) On Motion or by Agreement. The appellate opinion, it may not grant an appellant's court may dispose of an appeal as follows: motion to dismiss the appeal unless the other parties consent. If the other parties consent (1) On Motion of Appellant. In accordance and the court of appeals grants the appellant's with a motion of appellant, the court may motion to dismiss the appeal, the appellate dismiss the appeal or affirm the appealed opinion must be withdrawn and the appeal judgment or order unless such dismissed. The appellate clerk must send disposition would prevent a party from notice of the dismissal to the trial court clerk. seeking relief to which it would otherwise be entitled. 42.3. Involuntary Dismissal in Civil Cases
(2) By Agreement. In accordance with an Under the following circumstances, on any party's agreement signed by the parties or their motion — or on its own initiative after giving ten days' attorneys and filed with the clerk, the notice to all parties — the appellate court may dismiss court may the appeal or affirm the appealed judgment or order. Dismissal or affirmance may occur if the appeal is (A) render judgment effectuating the subject to dismissal: parties' agreement; (a) for want of jurisdiction; (B) set aside the trial court's judgment without regard to the (b) for want of prosecution; or merits and remand the case to the trial court for rendition of judgment (c) because the appellant has failed to comply in accordance with the agreement; with a requirement of these rules, a court or order, or a notice from the clerk requiring a response or other action within a specified (C) abate the appeal and permit time. proceedings in the trial court to effectuate the agreement. 42.4. Involuntary Dismissal in Criminal Cases
(b) Partial Disposition. A severable portion of The appellate court must dismiss an appeal on the the proceeding may be disposed of under (a) State’s motion, supported by affidavit, showing that if it will not prejudice the remaining parties. the appellant has escaped from custody pending the appeal and that to the affiant's knowledge, the (c) Effect on Court's Opinion. In dismissing a appellant has not, within ten days after escaping, proceeding, the appellate court will voluntarily returned to lawful custody within the state. determine whether to withdraw any opinion it has already issued. An agreement or motion (a) Timely Return to Custody; Reinstatement. for dismissal cannot be conditioned on The appeal may not be dismissed — or, if
55 dismissed, must be reinstated — if an affidavit of an officer or other credible person (c) reverse the trial court's judgment in whole or is filed showing that the appellant, within ten in part and render the judgment that the trial days after escaping, voluntarily returned to court should have rendered; lawful custody within the state. (d) reverse the trial court's judgment and remand (b) Life Sentence. The appellate court may the case for further proceedings; overrule the motion to dismiss — or, if the motion was granted, may reinstate the appeal (e) vacate the trial court's judgment and dismiss — if: the case; or
(1) the appellant received a life sentence; (f) dismiss the appeal. and 43.3.Rendition Appropriate Unless Remand (2) the appellant is recaptured or Necessary voluntarily surrenders within 30 days after escaping. When reversing a trial court's judgment, the court must render the judgment that the trial court should have rendered, except when: Notes and Comments (a) a remand is necessary for further Comment to 1997 change: Former Rules 59 and proceedings; or 60 are merged. Paragraph 42.1(c), allowing a court of appeals to withdraw its opinion, is new. Provision is (b) the interests of justice require a remand for made in paragraph 42.3(c) for dismissal of an appeal another trial. for failure to comply with a notice from the clerk. Other changes are made. 43.4. Judgment for Costs in Civil Cases
Comment to 2002 change: Rule 42.1 is amended The court of appeals’ judgment should award to to clarify the procedures for implementing settlements the prevailing party costs incurred by that party related on appeal and to expressly give courts flexibility in to the appeal, including filing fees in the court of effectuating settlements. The rule is also clarified to appeals and costs for preparation of the record. The expressly permit the dismissal of an appeal without court of appeals may tax costs otherwise as required dismissal of the action itself. The rule does not permit by law or for good cause. But the judgment must not an appellate court to order a new trial merely on the require the payment of costs by a party who was agreement of the parties absent reversible error, or to entitled to proceed without payment of costs under vacate a trial court's judgment absent reversible error Rule 20.1, and a provision in the judgment purporting or a settlement. to do so is void.
Rule 43. Judgment of the Court of Appeals 43.5. Judgment Against Sureties in Civil Cases
When a court of appeals affirms the trial court 43.1. Time judgment, or modifies that judgment and renders judgment against the appellant, the court of appeals The court of appeals should render its judgment must render judgment against the sureties on the promptly after submission of a case. appellant's supersedeas bond, if any, for the performance of the judgment and for any costs taxed 43.2. Types of Judgment against the appellant.
The court of appeals may: 43.6. Other Orders
(a) affirm the trial court's judgment in whole or The court of appeals may make any other in part; appropriate order that the law and the nature of the case require. (b) modify the trial court's judgment and affirm it as modified; Notes and Comments
56 court of appeals must presume: Comment to 1997 changes: Former Rules 80(a) - (c) and 82 are merged. Paragraph 43.2(e) allows the (1) that venue was proved in the trial court; court of appeals to vacate the trial court’s judgment and dismiss the case; paragraph 43.2(f) allows the (2) that the jury was properly impaneled court of appeals to dismiss the appeal. Both provisions and sworn; are new but codify current practice. Paragraph 43.3(a) is moved here from former Rule 81(c). Paragraph (3) that the defendant was arraigned; 43.3(b), allowing a remand in the interest of justice, is new. Subdivisions 43.4 and 43.5 are from former Rule (4) that the defendant pleaded to the 82. indictment or other charging instrument; and Rule 44. Reversible Error (5) that the court's charge was certified by 44.1. Reversible Error in Civil Cases the trial court and filed by the clerk before it was read to the jury. (a) Standard for Reversible Error. No judgment may be reversed on appeal on the ground that 44.3. Defects in Procedure the trial court made an error of law unless the court of appeals concludes that the error A court of appeals must not affirm or reverse a complained of: judgment or dismiss an appeal for formal defects or irregularities in appellate procedure without allowing (1) probably caused the rendition of an a reasonable time to correct or amend the defects or improper judgment; or irregularities.
(2) probably prevented the appellant from 44.4. Remediable Error of the Trial Court properly presenting the case to the court of appeals. (a) Generally. A court of appeals must not affirm or reverse a judgment or dismiss an appeal if: (b) Error Affecting Only Part of Case. If the error affects part of, but not all, the matter in (1) the trial court's erroneous action or controversy and that part is separable without failure or refusal to act prevents the unfairness to the parties, the judgment must proper presentation of a case to the court be reversed and a new trial ordered only as to of appeals; and the part affected by the error. The court may not order a separate trial solely on (2) the trial court can correct its action or unliquidated damages if liability is contested. failure to act.
44.2. Reversible Error in Criminal Cases (b) Court of Appeals Direction if Error Remediable. If the circumstances described (a) Constitutional Error. If the appellate record in (a) exist, the court of appeals must direct in a criminal case reveals constitutional error the trial court to correct the error. The court that is subject to harmless error review, the of appeals will then proceed as if the court of appeals must reverse a judgment of erroneous action or failure to act had not conviction or punishment unless the court occurred. determines beyond a reasonable doubt that the error did not contribute to the conviction Notes and Comments or punishment. Comment to 1997 change: Former Rules 80(d), 81 (b) Other Errors. Any other error, defect, and 83 are merged. The reversible error standard in irregularity, or variance that does not affect subdivision 44.1 is amended to omit the reference to substantial rights must be disregarded. an action “reasonably calculated to cause” an improper judgment, but no substantive change is intended. (c) Presumptions. Unless the following matters Paragraph 44.2(a) is amended to limit its standard of were disputed in the trial court, or unless the review to constitutional errors that are subject to record affirmatively shows the contrary, the harmless error review. Paragraph 44.2(b) is new and
57 is taken from Federal Rule of Criminal Procedure the remittitur is timely filed, the court must reform and 52(a) without substantive change. Paragraph 44.2(c) affirm the trial court's judgment in accordance with the is former Rule 80(d) without substantive change. remittitur. If the remittitur is not timely filed, the court Subdivision 44.3 is amended to delete the reference to must reverse the trial court's judgment. defects of “substance” and to delete the provisions regarding the late filing of the record. 46.4. Refusal to Remit Must Not Be Mentioned in Later Trial
Rule 45. Damages for Frivolous Appeals in Civil If the court of appeals suggests a remittitur but no Cases remittitur is filed, evidence of the court's determination regarding remittitur is inadmissible in a If the court of appeals determines that an appeal later trial of the case. is frivolous, it may — on motion of any party or on its own initiative, after notice and a reasonable 46.5. Voluntary Remittitur opportunity for response — award each prevailing party just damages. In determining whether to award If a court of appeals reverses the trial court's damages, the court must not consider any matter that judgment because of a legal error that affects only part does not appear in the record, briefs, or other papers of the damages awarded by the judgment, the affected filed in the court of appeals. party may - within 15 days after the court of appeals' judgment - voluntarily remit the amount that the Notes and Comments affected party believes will cure the reversible error. A party may include in a motion for rehearing - Comment to 1997 change: This is former Rule 84. without waiving any complaint that the court of The limit on the amount of the sanction that may be appeals erred - a conditional request that the court imposed is repealed. A requirement of notice and accept the remittitur and affirm the trial court's opportunity to respond is added. judgment as reduced. If the court of appeals determines that the voluntary remittitur is not Rule 46. Remittitur in Civil Cases sufficient to cure the reversible error, but that remittitur is appropriate, the court must suggest a 46.1. Remittitur After Appeal Perfected remittitur in accordance with Rule 46.3. If the remittitur is timely filed and the court of appeals If the trial court suggests a remittitur but the case determines that the voluntary remittitur cures the is appealed before the remittitur is filed, the party who reversible error, the court must accept the remittitur would make the remittitur may do so in the court of and reform and affirm the trial court judgment in appeals in the same manner as in the trial court. The accordance with the remittitur. court of appeals must then render the judgment that the trial court should have rendered if the remittitur had Notes and Comments been made in the trial court. Comment to 1997 change: This is former Rule 85. 46.2. Appeal on Remittitur The rule is revised without substantive change.
If a party makes the remittitur at the trial judge’s Comment to 2002 change: Subdivision 46.5 is suggestion and the party benefitting from the remittitur amended to clarify the procedure for offering a appeals, the remitting party is not barred from voluntary remittitur. The offer may be made in a contending in the court of appeals that all or part of the motion for rehearing without waiving any complaint remittitur should not have been required, but the that the court of appeals erred, thereby extending the remitting party must perfect an appeal to raise that deadlines for further appeal. point. If the court of appeals sustains the remitting party's contention that remittitur should not have been required, the court must render the judgment that the Rule 47. Opinions, Publication, and Citation trial court should have rendered. 47.1. Written Opinions 46.3. Suggestion of Remittitur by Court of Appeals The court of appeals must hand down a written opinion that is as brief as practicable but that addresses The court of appeals may suggest a remittitur. If every issue raised and necessary to final disposition of
58 the appeal. modifies an existing rule, or applies an existing rule to a novel fact situation likely to 47.2. Designation and Signing of Opinions; recur in future cases; Participating Justices (b) involves issues of constitutional law or other (a) Civil and Criminal Cases. Each opinion of legal issues important to the jurisprudence of the court must be designated either an Texas; “Opinion” or a “Memorandum Opinion.” A majority of the justices who participate in (c) criticizes existing law; or considering the case must determine whether the opinion will be signed by a justice or will (d) resolves an apparent conflict of authority. be per curiam and whether it will be designated an opinion or memorandum 47.5. Concurring and Dissenting Opinions opinion. The names of the participating justices must be noted on all written opinions Only a justice who participated in the decision of or orders of the court or a panel of the court. a case may file or join in an opinion concurring in or dissenting from the judgment of the court of appeals. (b) Criminal Cases. In addition, each opinion Any justice on the court may file an opinion in and memorandum opinion in a criminal case connection with a denial of a hearing or rehearing en must bear the notation “publish” or “do not banc. publish” as determined — before the opinion is handed down — by a majority of the 47.6. Change in Designation by En Banc Court justices who participate in considering the case. Any party may move the appellate A court en banc may change a panel's designation court to change the notation, but the court of of an opinion. appeals must not change the notation after the Court of Criminal Appeals has acted on any 47.7. Citation of Unpublished Opinions party's petition for discretionary review or other request for relief. The Court of (a) Criminal Cases. Opinions and memorandum Criminal Appeals may, at any time, order that opinions not designated for publication by a “do not publish” notation be changed to the court of appeals under these or prior rules “publish.” have no precedential value but may be cited with the notation, “(not designated for (c) Civil Cases. Opinions and memorandum publication).” opinions in civil cases issued on or after January 1, 2003 shall not be designated “do (b) Civil Cases. Opinions and memorandum not publish.” opinions designated “do not publish” under these rules by the courts of appeals prior to 47.3. Distribution of Opinions January 1, 2003 have no precedential value but may be cited with the notation, “(not All opinions of the courts of appeals are open to designated for publication).” If an opinion or the public and must be made available to public memorandum opinion issued on or after that reporting services, print or electronic. date is erroneously designated “do not publish,” the erroneous designation will not 47.4. Memorandum Opinions affect the precedential value of the decision.
If the issues are settled, the court should write a Notes and Comments brief memorandum opinion no longer than necessary to advise the parties of the court's decision and the Comment to 1997 change: This is former Rule 90. basic reasons for it. An opinion may not be designated Subdivision 47.1 makes clear that a memorandum a memorandum opinion if the author of a concurrence opinion should not be any longer than necessary. or dissent opposes that designation. An opinion must Subdivision 47.5 is amended to make clear that only be designated a memorandum opinion unless it does justices who participated in the decision may file an any of the following: opinion in the case. Judges who are not on a panel may file an opinion only in respect to a hearing or (a) establishes a new rule of law, alters or rehearing en banc. Former Rule 90(h), regarding
59 publication of opinions after the Supreme Court grants review, is repealed. 48.2. Additional Recipients in Criminal Cases
Comment to 2002 change: The rule is In criminal cases, copies of the opinion and substantively changed to discontinue the use of the "do judgment will also be mailed or delivered to the State not publish" designation in civil cases, to require that Prosecuting Attorney. all opinions of the court of appeals be made available to public reporting services, and to remove 48.3. Filing Opinion and Judgment prospectively any prohibition against the citation of opinions as authority in civil cases. The rule favors The trial court clerk must file a copy of the the use of "memorandum opinions" designated as such opinion and judgment among the papers of the case in except in certain types of cases but does not change that court. other requirements, such as those in Pool v. Ford Motor Co., 715 S.W.2d 629, 635-636 (Tex. 1986). An 48.4. Opinion Sent to Criminal Defendant opinion previously designated "do not publish" has no precedential value but may be cited. The citation must In criminal cases, the attorney representing the include the notation, "(not designated for defendant on appeal shall, within five days after the publication)." Of course, whenever an opinion not opinion is handed down, send his client a copy of the readily available is cited, copies should be furnished to opinion and judgment, along with notification of the the court and opposing counsel. defendant's right to file a pro se petition for discretionary review under Rule 68. This notification Comment to 2008 change: Effective January 1, shall be sent certified mail, return receipt requested, to 2003, Rule 47 was amended to prospectively the defendant at his last known address. The attorney discontinue designating opinions in civil cases as shall also send the court of appeals a letter certifying either "published" or "unpublished." Subdivision 47.7 his compliance with this rule and attaching a copy of is revised to clarify that, with respect to civil cases, the return receipt within the time for filing a motion only opinions issued prior to the 2003 amendment and for rehearing. The court of appeals shall file this letter affirmatively designated "do not publish" should be in its record of the appeal. considered "unpublished" cases lacking precedential value. All opinions and memorandum opinions in civil Notes and Comments cases issued after the 2003 amendment have precedential value. The provisions governing citation Comment to 1997 change: This is former Rule 91 of unpublished opinions in criminal cases are with changes. substantively unchanged. Subdivisions 47.2 and 47.7 are amended to clarify that memorandum opinions are subject to those rules. Rule 49. Motion for Rehearing and En Banc Reconsideration
Rule 48. Copy of Opinion and Judgment to 49.1. Motion for Rehearing Interested Parties and Other Courts A motion for rehearing may be filed within 15 48.1. Recipients of Opinion and Judgment in All days after the court of appeals’ judgment or order is Cases rendered. The motion must clearly state the points relied on for the rehearing. On the date when an appellate court's opinion is handed down, the appellate clerk must send or deliver 49.2. Response copies of the opinion and judgment to the following persons: No response to a motion for rehearing need be filed unless the court so requests. A motion will not (a) the trial judge; be granted unless a response has been filed or requested by the court. (b) the trial court clerk; 49.3. Decision on Motion (c) the regional administrative judge; and A motion for rehearing may be granted by a (d) all parties to the appeal. majority of the justices who participated in the
60 decision of the case. Otherwise, it must be denied. If 49.9. Not Required for Review rehearing is granted, the court or panel may dispose of the case with or without rebriefing and oral argument. A motion for rehearing is not a prerequisite to filing a petition for review in the Supreme Court or a 49.4. Accelerated Appeals petition for discretionary review in the Court of Criminal Appeals nor is it required to preserve error. In an accelerated appeal, the appellate court may deny the right to file a motion for rehearing or shorten 49.10. Deleted the time to file such a motion. 49.11. Relationship to Petition for Review 49.5. Further Motion for Rehearing A party may not file a motion for rehearing or en After a motion for rehearing is decided, a further banc reconsideration in the court of appeals after that motion for rehearing may be filed within 15 days of party has filed a petition for review in the Supreme the court's action if the court: Court unless the court of appeals modifies its opinion or judgment after the petition for review is filed. The (a) modifies its judgment; filing of a petition for review does not preclude another party from filing a motion for rehearing or en (b) vacates its judgment and renders a new banc reconsideration or preclude the court of appeals judgment; or from ruling on the motion. If a motion for rehearing or en banc reconsideration is timely filed after a (c) issues a different opinion. petition for review is filed, the petitioner must immediately notify the Supreme Court clerk of the 49.6. Amendments filing of the motion, and must notify the clerk when the last timely filed motion is overruled by the court of A motion for rehearing or en banc reconsideration appeals. may be amended as a matter of right anytime before the 15-day period allowed for filing the motion 49.12. Certificate of Conference Not Required expires, and with leave of the court, anytime before the court of appeals decides the motion. A certificate of conference is not required for a motion for rehearing or en banc reconsideration of a 49.7. En Banc Reconsideration panel's decision.
A party may file a motion for en banc Notes and Comments reconsideration as a separate motion, with or without filing a motion for rehearing. The motion must be filed Comment to 1997 change: This is former Rule within 15 days after the court of appeals' judgment or 100. Subdivision 49.4 is moved here from former Rule order, or when permitted, within 15 days after the 43(h). Subdivisions 49.9 and 49.10 are added. court of appeals' denial of the party's last timely filed motion for rehearing or en banc reconsideration. Comment to 2008 change: Rule 49 is revised to While the court has plenary power, a majority of the treat a motion for en banc reconsideration as a motion en banc court may, with or without a motion, order en for rehearing and to include procedures governing the banc reconsideration of a panel's decision. If a filing of a motion for en banc reconsideration. majority orders reconsideration, the panel's judgment Subdivision 49.5(c) is amended to clarify that a further or order does not become final, and the case will be motion for rehearing may be filed if the court issues a resubmitted to the court for en banc review and different opinion, irrespective of whether the opinion disposition. is issued in connection with the overruling of a prior motion for rehearing. Issuance of a new opinion that is 49.8. Extensions of Time not substantially different should not occasion a further motion for rehearing, but a motion's lack of A court of appeals may extend the time for filing merit does not affect appellate deadlines. The a motion for rehearing or en banc reconsideration if a provisions of former Rule 53.7(b) that address motions party files a motion complying with Rule 10.5(b) no for rehearing are moved to new subdivision 49.11 later than 15 days after the last date for filing the without change, leaving the provisions of Rule 53.7(b) motion. that address petitions for review undisturbed. Subdivision 49.12 mirrors Rule 10.1(a)(5) in
61 excepting motions for rehearing and motions for en When the trial court clerk receives the mandate, banc reconsideration from the certificate-of- the appellate court’s judgment must be enforced as conference requirement. follows:
(a) Clerk’s Duties. The trial court clerk must: Rule 50. Abolished by Order of July 12, 2011, eff. September 1, 2011 (1) send an acknowledgment to the appellate clerk of the mandate's receipt; and Notes and Comments (2) immediately file the mandate. Comment to 2011 change: Rule 50 is abolished. Motions for rehearing serve the same purpose. (b) Judgment of Affirmance; Defendant Not in Custody.
Rule 51. Enforcement of Judgments after (1) Capias to Be Issued. If the judgment Mandate contains a sentence of confinement or imprisonment that has not been 51.1. Civil Cases suspended, the trial court must promptly issue a capias for the defendant's arrest (a) Statement of Costs. The appellate clerk must so that the court's sentence can be prepare, and send to the trial court clerk with executed. the mandate, a statement of costs showing: (2) Contents of Capias. The capias may (1) the preparation costs for the appellate issue to any county of this state and must record, and any court of appeals filing be executed and returned as in felony fees, with a notation of those items that cases, except that no bail may be taken. have been paid and those that are owing; The capias must: and (A) recite the fact of conviction; (2) the party or parties against whom costs have been adjudged. (B) set forth the offense and the court's judgment and sentence; (b) Enforcement of Judgment. When the trial court clerk receives the mandate, the (C) state that the judgment was appellate court’s judgment must be enforced. appealed from and affirmed, and Appellate court costs must be included with that the mandate has been filed; and the trial court costs in any process to enforce the judgment. If all or part of the costs are (D) command the sheriff to arrest and collected, the trial court clerk must take the defendant into his custody, immediately remit to the appellate court clerk and to place and keep the defendant any amount due to that clerk. The trial court in custody until delivered to the need not make any further order in the case, proper authorities as directed by the and the appellate court’s judgment may be sentence. enforced as in other cases, when the appellate judgment: (3) Sheriff's Duties. The sheriff must promptly execute the capias as directed. (1) affirms the trial court's judgment; The sheriff must notify the trial court clerk and the appellate clerk when the (2) modifies the trial court's judgment and, mandate has been carried out and as so modified, affirms that judgment; or executed.
(3) renders the judgment the trial court (c) Judgment of Reversal. should have rendered. (1) When New Trial Ordered. When the 51.2. Criminal Cases appellate court reverses the trial court's judgment and grants the defendant a new
62 trial, the procedure is governed by Code (a) Identity of Parties and Counsel. The petition of Criminal Procedure article 44.29. If must give a complete list of all parties, and the defendant is in custody and entitled the names, and addresses of all counsel. to bail, the defendant must be released upon giving bail. (b) Table of Contents. The petition must include a table of contents with references to the (2) When Case Dismissed. When the pages of the petition. The table of contents appellate court reverses the trial court's must indicate the subject matter of each issue judgment and orders the case to be or point, or group of issues or points. dismissed, the defendant — if in custody — must be discharged. (c) Index of Authorities. The petition must include an index of authorities arranged (d) Judgment of Acquittal. When the appellate alphabetically and indicating the pages of the court reverses a judgment and orders the petition where the authorities are cited. defendant's acquittal, the defendant — if in custody — must be discharged, and no (d) Statement of the Case. The petition must further order or judgment of the trial court is contain a statement of the case that should necessary. seldom exceed one page and should not discuss the facts. The statement must contain Notes and Comments the following:
Comment to 1997 change: Former Rules 87 and (1) a concise description of the nature of 88 are merged. The reference to costs in tax suits is any underlying proceeding (e.g., a suit deleted. for damages, a contempt proceeding for failure to pay child support, or the certification of a candidate for inclusion SECTION THREE: ORIGINAL PROCEEDINGS on an election ballot); IN THE SUPREME COURT AND THE COURTS OF APPEALS (2) if the respondent is a judge, the name of the judge, the designation of the court in Rule 52. Original Proceedings which the judge was sitting, and the county in which the court is located; and 52.1. Commencement if the respondent is an official other than a judge, the designation and location of An original appellate proceeding seeking the office held by the respondent; extraordinary relief — such as a writ of habeas corpus, mandamus, prohibition, injunction, or quo warranto — (3) a concise description of the respondent’s is commenced by filing a petition with the clerk of the action from which the relator seeks appropriate appellate court. The petition must be relief; captioned “In re [name of relator].” (4) if the relator seeks a writ of habeas 52.2. Designation of Parties corpus, a statement describing how and where the relator is being deprived of The party seeking the relief is the relator. In liberty; original proceedings other than habeas corpus, the person against whom relief is sought — whether a (5) if the petition is filed in the Supreme judge, court, tribunal, officer, or other person — is the Court after a petition requesting the same respondent. A person whose interest would be directly relief was filed in the court of appeals: affected by the relief sought is a real party in interest and a party to the case. (A) the date the petition was filed in the court of appeals; 52.3. Form and Contents of Petition (B) the district of the court of appeals The petition must, under appropriate headings and and the names of the justices who in the order here indicated, contain the following: participated in the decision;
63 (C) the author of any opinion for the court of appeals and the author of (A) a certified or sworn copy of any any separate opinion; order complained of, or any other document showing the matter (D) the citation of the court’s opinion; complained of;
(E) the disposition of the case by the (B) any order or opinion of the court court of appeals, and the date of the of appeals, if the petition is filed in court of appeals’ order. the Supreme Court;
(e) Statement of Jurisdiction. The petition must (C) unless voluminous or impracticable, state, without argument, the basis of the the text of any rule, regulation, court's jurisdiction. If the Supreme Court and ordinance, statute, constitutional the court of appeals have concurrent provision, or other law (excluding jurisdiction, the petition must be presented case law) on which the argument is first to the court of appeals unless there is a based; and compelling reason not to do so. If the petition is filed in the Supreme Court without first (D) if a writ of habeas corpus is sought, being presented to the court of appeals, the proof that the relator is being petition must state the compelling reason restrained. why the petition was not first presented to the court of appeals. (2) Optional Contents. The appendix may contain any other item pertinent to the (f) Issues Presented. The petition must state issues or points presented for review, concisely all issues or points presented for including copies or excerpts of relevant relief. The statement of an issue or point will court opinions, statutes, constitutional be treated as covering every subsidiary provisions, documents on which the suit question that is fairly included. was based, pleadings, and similar material. Items should not be included (g) Statement of Facts. The petition must state in the appendix to attempt to avoid the concisely and without argument the facts page limits for the petition. The pertinent to the issues or points presented. appendix should not contain any Every statement of fact in the petition must evidence or other item that is not be supported by citation to competent necessary for a decision. evidence included in the appendix or record. 52.4. Response (h) Argument. The petition must contain a clear and concise argument for the contentions Any party may file a response to the petition, but made, with appropriate citations to it is not mandatory. The court must not grant relief — authorities and to the appendix or record. other than temporary relief — before a response has been filed or requested by the court. The response must (i) Prayer. The petition must contain a short conform to the requirements of 52.3, except that: conclusion that clearly states the nature of the relief sought. (a) the list of parties and counsel is not required unless necessary to supplement or correct the (j) Certification. The person filing the petition list contained in the petition; must certify that he or she has reviewed the petition and concluded that every factual (b) the response need not include a statement of statement in the petition is supported by the case, a statement of the issues presented, competent evidence included in the appendix or a statement of the facts unless the or record. responding party is dissatisfied with that portion of the petition; (k) Appendix. (c) a statement of jurisdiction should be omitted (1) Necessary Contents. The appendix unless the petition fails to assert valid must contain: grounds for jurisdiction, in which case the
64 reasons why the court lacks jurisdiction must be concisely stated; (a) Relief Denied. If the court determines from the petition and any response and reply that (d) the argument must be confined to the issues the relator is not entitled to the relief sought, or points presented in the petition; and the court must deny the petition. If the relator in a habeas corpus proceeding has (e) the appendix to the response need not contain been released on bond, the court must remand any item already contained in an appendix the relator to custody and issue an order of filed by the relator. commitment. If the relator is not returned to custody, the court may declare the bond to be 52.5. Relator’s Reply to Response forfeited and render judgment against the surety. The relator may file a reply addressing any matter in the response. However, the court may consider and (b) Interim Action. If the court is of the tentative decide the case before a reply brief is filed. opinion that relator is entitled to the relief sought or that a serious question concerning 52.6. Deleted the relief requires further consideration:
52.7. Record (1) the court must request a response if one has not been filed; (a) Filing by Relator Required. Relator must file with the petition: (2) the Supreme Court may request full briefing under Rule 55; (1) a certified or sworn copy of every document that is material to the relator's (3) in a habeas corpus proceeding, the court claim for relief and that was filed in any may order that relator be discharged on underlying proceeding; and execution and filing of a bond in an amount set by the court; and (2) a properly authenticated transcript of any relevant testimony from any (4) the court may set the case for oral underlying proceeding, including any argument. exhibits offered in evidence, or a statement that no testimony was adduced (c) Relief Granted. If the court determines that in connection with the matter relator is entitled to relief, it must make an complained. appropriate order. The court may grant relief without hearing oral argument. (b) Supplementation Permitted. After the record is filed, relator or any other party to the (d) Opinion. When denying relief, the court may proceeding may file additional materials for hand down an opinion but is not required to inclusion in the record. do so. When granting relief, the court must hand down an opinion as in any other case. (c) Service of Record on All Parties. Relator and Rule 47 is applicable to an order or opinion any party who files materials for inclusion in by a court of appeals except that the court of the record must – at the same time – serve on appeals may not order an unpublished each party: opinion published after the Supreme Court or Court of Criminal Appeals has acted on any (1) those materials not previously served on party’s petition for extraordinary relief that party as part of the record in another addressing the same issues. original appellate proceeding in the same or another court; and 52.9. Motion for Rehearing
(2) an index listing the materials filed Any party may file a motion for rehearing within and describing them in sufficient detail 15 days after the final order is rendered. The motion to identify them. must clearly state the points relied on for the rehearing. No response to a motion for rehearing need be filed 52.8. Action on Petition unless the court so requests. The court will not grant
65 a motion for rehearing unless a response has been filed Notes and Comments or requested. Comment to 1997 change: Former Rules 120, 52.10. Temporary Relief 121, and 122 are merged into this rule. The requirement of a motion for leave in original (a) Motion for Temporary Relief; Certificate proceedings is repealed. The form of the petition and of Compliance. The relator may file a motion response, contents of the appendix and record, page to stay any underlying proceedings or for any limits, and relief that may be granted are specifically other temporary relief pending the court’s stated. Specific provision is now made for a motion action on the petition. The relator must notify for rehearing. A provision for sanctions is added. or make a diligent effort to notify all parties by expedited means (such as by telephone or Comment to 2002 change: Subdivision 52.7(c) is fax) that a motion for temporary relief has added to specify how record materials in original been or will be filed and must certify to the proceedings are to be served. Ordinarily, a party must court that the relator has complied with this serve record materials and an index of those materials paragraph before temporary relief will be on all other parties. But when materials have already granted. been served in related original proceedings, they need not be served again. Examples are when original (b) Grant of Temporary Relief. The court — on proceedings raising the same issues are brought in motion of any party or on its own initiative both the court of appeals and the Supreme Court, or — may without notice grant any just relief when separate original proceedings are filed arising pending the court’s action on the petition. As out of the same underlying lawsuit. The purpose of this a condition of granting temporary relief, the procedure is to ensure that all parties have record court may require a bond to protect the parties materials readily available without requiring who will be affected by the relief. Unless unnecessary duplication. vacated or modified, an order granting temporary relief is effective until the case is Comment to 2008 change: The reference to finally decided. “unpublished” opinions in Subdivision 52.3(d)(5)(D) is deleted. The filer should provide the best cite (c) Motion to Reconsider. Any party may move available for the court of appeals’ opinion, which may the court at any time to reconsider a grant of be a LEXIS, Westlaw, or other citation to an electronic temporary relief. medium. Subdivision 52.3 is further amended to delete the requirement that all factual statements be 52.11. Groundless Petition or Misleading verified by affidavit. Instead, the filer — in the usual Statement or Record case of a party with legal representation, the lead counsel — must include a statement certifying that all On motion of any party or on its own initiative, factual statements are supported by competent the court may — after notice and a reasonable evidence in the appendix or record to which the opportunity to respond — impose just sanctions on a petition has cited. The certification required by party or attorney who is not acting in good faith as subdivision 52.3(j) does not count against the page indicated by any of the following: limitations.
(a) filing a petition that is clearly groundless; SECTION FOUR: PROCEEDINGS IN THE (b) bringing the petition solely for delay of SUPREME COURT an underlying proceeding; Rule 53. Petition for Review (c) grossly misstating or omitting an obviously important and material fact in the 53.1. Method of Review petition or response; or The Supreme Court may review a court of (d) filing an appendix or record that is appeals' final judgment on a petition for review clearly misleading because of the omission of addressed to “The Supreme Court of Texas.” A party obviously important and material evidence or who seeks to alter the court of appeals’ judgment must documents. file a petition for review. The petition for review procedure replaces the writ of error procedure.
66 Statutes pertaining to the writ of error in the Supreme (8) the citation for the court of appeals’ Court apply equally to the petition for review. opinion; and
53.2. Contents of Petition (9) the disposition of the case by the court of appeals, including the disposition of any The petition for review must, under appropriate motions for rehearing or en banc headings and in the order here indicated, contain the reconsideration, and whether any following items: motions for rehearing or en banc reconsideration are pending in the court (a) Identity of Parties and Counsel. The petition of appeals at the time the petition for must give a complete list of all parties to the review is filed. trial court's final judgment, and the names and addresses of all trial and appellate (e) Statement of Jurisdiction. The petition must counsel. state, without argument, the basis of the Court’s jurisdiction. (b) Table of Contents. The petition must have a table of contents with references to the pages (f) Issues Presented. The petition must state of the petition. The table of contents must concisely all issues or points presented for indicate the subject matter of each issue or review. The statement of an issue or point point, or group of issues or points. will be treated as covering every subsidiary question that is fairly included. If the matter (c) Index of Authorities. The petition must have complained of originated in the trial court, it an index of authorities arranged should have been preserved for appellate alphabetically and indicating the pages of the review in the trial court and assigned as error petition where the authorities are cited. in the court of appeals.
(d) Statement of the Case. The petition must (g) Statement of Facts. The petition must affirm contain a statement of the case that should that the court of appeals correctly stated the seldom exceed one page and should not nature of the case, except in any particulars discuss the facts. The statement must contain pointed out. The petition must state concisely the following: and without argument the facts and procedural background pertinent to the issues (1) a concise description of the nature of the or points presented. The statement must be case (e.g., whether it is a suit for supported by record references. damages, on a note, or in trespass to try title); (h) Summary of the Argument. The petition must contain a succinct, clear, and accurate (2) the name of the judge who signed the statement of the arguments made in the body order or judgment appealed from; of the petition. This summary must not merely repeat the issues or points presented (3) the designation of the trial court and the for review. county in which it is located; (i) Argument. The petition must contain a clear (4) the disposition of the case by the trial and concise argument for the contentions court; made, with appropriate citations to authorities and to the record. The argument (5) the parties in the court of appeals; need not address every issue or point included in the statement of issues or points. (6) the district of the court of appeals; Any issue or point not addressed may be addressed in the brief on the merits if one is (7) the names of the justices who requested by the Court. The argument should participated in the decision in the court state the reasons why the Supreme Court of appeals, the author of the opinion for should exercise jurisdiction to hear the case the court, and the author of any separate with specific reference to the factors listed in opinion; Rule 56.1(a). The petition need not quote at length from a matter included in the
67 appendix; a reference to the appendix is of 53.2, except that: sufficient. The Court will consider the court of appeals’ opinion along with the petition, so (a) the list of parties and counsel is not required statements in that opinion need not be unless necessary to supplement or correct the repeated. list contained in the petition;
(j) Prayer. The petition must contain a short (b) a statement of the case and a statement of the conclusion that clearly states the nature of the facts need not be made unless the respondent relief sought. is dissatisfied with that portion of the petition; (k) Appendix. (c) a statement of the issues presented need not (1) Necessary Contents. Unless voluminous be made unless: or impracticable, the appendix must contain a copy of: (1) the respondent is dissatisfied with the statement made in the petition; (A) the judgment or other appealable order of the trial court from which (2) the respondent is asserting relief in the court of appeals was independent grounds for affirmance of sought; the court of appeals' judgment; or
(B) the jury charge and verdict, if any, (3) the respondent is asserting grounds or the trial court’s findings of fact that establish the respondent's right to a and conclusions of law, if any; judgment that is less favorable to the respondent than the judgment rendered (C) the opinion and judgment of the by the court of appeals but more court of appeals; and favorable to the respondent than the judgment that might be awarded to the (D) the text of any rule, regulation, petitioner (e.g., a remand for a new trial ordinance, statute, constitutional rather than a rendition of judgment in provision, or other law on which the favor of the petitioner); argument is based (excluding case law), and the text of any contract or (d) a statement of jurisdiction should be omitted other document that is central to the unless the petition fails to assert valid argument. grounds for jurisdiction, in which case the reasons why the Supreme Court lacks (2) Optional Contents. The appendix may jurisdiction must be concisely stated; contain any other item pertinent to the issues or points presented for review, (e) the respondent's argument must be confined including copies or excerpts of relevant to the issues or points presented in the court opinions, statutes, constitutional petition or asserted by the respondent in the provisions, documents on which the suit respondent's statement of issues; and was based, pleadings, and similar material. Items should not be included (f) the appendix to the response need not contain in the appendix to attempt to avoid the any item already contained in an appendix page limits for the petition. filed by the petitioner.
53.3. Response to Petition for Review 53.4. Points Not Considered in Court of Appeals
Any other party to the appeal may file a response To obtain a remand to the court of appeals for to the petition for review, but it is not mandatory. If consideration of issues or points briefed in that court no response is timely filed, or if a party files a waiver but not decided by that court, or to request that the of response, the Court will consider the petition Supreme Court consider such issues or points, a party without a response. A petition will not be granted may raise those issues or points in the petition, the before a response has been filed or requested by the response, the reply, any brief, or a motion for Court. The response must conform to the requirements rehearing.
68 (f) Extension of Time. The Supreme Court may 53.5. Petitioner's Reply to Response extend the time to file a petition for review if a party files a motion complying with Rule The petitioner may file a reply addressing any 10.5(b) no later than 15 days after the last day matter in the response. However, the Court may for filing the petition. The Supreme Court consider and decide the case before a reply brief is may extend the time to file a response or filed. reply if a party files a motion complying with Rule 10.5(b) either before or after the 53.6. Deleted response or reply is due.
53.7. Time and Place of Filing (g) Petition Filed in Court of Appeals. If a petition is mistakenly filed in the court of (a) Petition. Unless the Supreme Court orders an appeals, the petition is deemed to have been earlier filing deadline, the petition must be filed the same day with the Supreme Court filed with the Supreme Court clerk within 45 clerk, and the court of appeals clerk must days after the following: immediately send the petition to the Supreme Court clerk. (1) the date the court of appeals rendered judgment, if no motion for 53.8. Amendment rehearing or en banc reconsideration is timely filed; or On motion showing good cause, the Court may allow the petition, response, or reply to be amended on (2) the date of the court of appeals’ last such reasonable terms as the Court may prescribe. ruling on all timely filed motions for rehearing or en banc reconsideration. 53.9. Court May Require Revision
(b) Premature Filing. A petition filed before the If a petition, response, or reply does not conform last ruling on all timely filed motions for with these rules, the Supreme Court may require the rehearing and en banc reconsideration is document to be revised or may return the document to treated as having been filed on the date of, but the party who filed it and consider the case without after, the last ruling on any such motion. If a allowing the document to be revised. party files a petition for review while a motion for rehearing or en banc Notes and Comments reconsideration is pending in the court of appeals, the party must include that Comment to 1997 change: Former Rules 130 and information in its petition for review. 131 are merged. The 50-page application for writ of error is replaced by a 15-page petition for review, (c) Petitions Filed by Other Parties. If a party which is filed in the Supreme Court and should files a petition for review within the time concentrate on the reasons the Court should exercise specified in 53.7(a) — or within the time jurisdiction to hear the case. The contents of the specified by the Supreme Court in an order petition and response, the length of the documents, the granting an extension of time to file a petition time for filing are all specifically stated. — any other party required to file a petition may do so within 45 days after the last timely Comment to 2008 change: Subdivision 53.7(a) is motion for rehearing is overruled or within 30 amended to clarify that the Supreme Court may days after any preceding petition is filed, shorten the time for filing a petition for review and that whichever date is later. the timely filing of a motion for en banc reconsideration tolls the commencement of the 45-day (d) Response. Any response must be filed with period for filing a petition for review until the motion the Supreme Court clerk within 30 days after is overruled. Subdivision 53.2(d)(8) is amended to the petition is filed. delete the reference to unpublished opinions in civil cases. Subdivision 53.2(d)(9) is amended to require a (e) Reply. Any reply must be filed with the party that prematurely files a petition for review to Supreme Court clerk within 15 days after the notify the Supreme Court of any panel rehearing or en response is filed. banc reconsideration motions still pending in the court of appeals. Subdivision 53.7(b) is revised to reference
69 this new requirement and to relocate to new Rule Supreme Court to request the filing of the record. 49.11 those provisions governing motions for Other changes are made. rehearing.
Rule 55. Brief on the Merits Rule 54. Filing the Record 55.1. Request by Court 54.1. Request for Record A brief on the merits must not be filed unless With or without granting the petition for review, requested by the Court. With or without granting the the Supreme Court may request that the record from petition for review, the Court may request the parties the court of appeals be filed with the clerk of the to file briefs on the merits. In appropriate cases, the Supreme Court. Court may realign parties and direct that parties file consolidated briefs. 54.2. Duty of Court of Appeals Clerk 55.2. Petitioner's Brief on the Merits (a) Request for Record. The court of appeals clerk must not send the record to the Supreme The petitioner’s brief on the merits must be Court unless it is requested. Upon receiving confined to the issues or points stated in the petition the Supreme Court clerk's request for the for review and must, under appropriate headings and record, the court of appeals clerk must in the order here indicated, contain the following promptly send to the Supreme Court clerk all items: of the following: (a) Identity of Parties and Counsel. The brief (1) the original record; must give a complete list of all parties to the trial court's final judgment, and the names (2) any motion filed in the court of appeals; and addresses of all trial and appellate counsel. (3) copies of all orders of the court of appeals; and (b) Table of Contents. The brief must have a table of contents with references to the pages (4) copies of all opinions and the judgment of the brief. The table of contents must of the court of appeals. indicate the subject matter of each issue or point, or group of issues or points. (b) Nondocumentary Exhibits. The clerk should not send any nondocumentary exhibits unless (c) Index of Authorities. The brief must have an the Supreme Court specifically requests. index of authorities arranged alphabetically and indicating the pages of the brief where 54.3. Expenses the authorities are cited.
The petitioner must pay to the court of appeals (d) Statement of the Case. The brief must contain clerk a sum sufficient to pay the cost of mailing or a statement of the case that should seldom shipping the record to and from the Supreme Court exceed one page and should not discuss the clerk. facts. The statement must contain the following: 54.4. Duty of Supreme Court Clerk (1) a concise description of the nature of the Upon receiving the record, the Supreme Court case (e.g., whether it is a suit for clerk must file it and enter the filing on the docket. damages, on a note, or in trespass to try The clerk may refuse the record if the charges for title); mailing or shipping have not been paid. (2) the name of the judge who signed the Notes and Comments order or judgment appealed from;
Comment to 1997 change: This is former Rule (3) the designation of the trial court and the 132. Subdivision 54.1 is new and provides for the county in which it is located;
70 to the record. (4) the disposition of the case by the trial court; (j) Prayer. The brief must contain a short conclusion that clearly states the nature of the (5) the parties in the court of appeals; relief sought.
(6) the district of the court of appeals; 55.3. Respondent's Brief (7) the names of the justices who participated in the decision in the court If the petitioner files a brief on the merits, any of appeals, the author of the opinion for other party to the appeal may file a brief in response, the court, and the author of any separate which must conform to 55.2, except that: opinion; (a) the list of parties and counsel is not required (8) the citation for the court of appeals’ unless necessary to supplement or correct the opinion, if available, or a statement that list contained in the petitioner's brief; the opinion was unpublished; and (b) a statement of the case and a statement of the (9) the disposition of the case by the court of facts need not be made unless the respondent appeals. is dissatisfied with that portion of the petitioner's brief; and (e) Statement of Jurisdiction. The brief must state, without argument, the basis of the (c) a statement of the issues presented need not Court’s jurisdiction. be made unless:
(f) Issues Presented. The brief must state (1) the respondent is dissatisfied with the concisely all issues or points presented for statement made in the petitioner's brief; review. The statement of an issue or point will be treated as covering every subsidiary (2) the respondent is asserting question that is fairly included. The phrasing independent grounds for affirmance of of the issues or points need not be identical to the court of appeals' judgment; or the statement of issues or points in the petition for review, but the brief may not raise (3) the respondent is asserting grounds additional issues or points or change the that establish the respondent's right to a substance of the issues or points presented in judgment that is less favorable to the the petition. respondent than the judgment rendered by the court of appeals but more (g) Statement of Facts. The brief must affirm that favorable to the respondent than the the court of appeals correctly stated the judgment that might be awarded to the nature of the case, except in any particulars petitioner (e.g., a remand for a new trial pointed out. The brief must state concisely rather than a rendition of judgment in and without argument the facts and favor of the petitioner); procedural background pertinent to the issues or points presented. The statement must be (d) a statement of jurisdiction should be omitted supported by record references. unless the petition fails to assert valid grounds for jurisdiction; and (h) Summary of the Argument. The brief must contain a succinct, clear, and accurate (e) the respondent's argument must be confined statement of the arguments made in the body to the issues or points presented in the of the brief. This summary must not merely petitioner's brief or asserted by the repeat the issues or points presented for respondent in the respondent's statement of review. issues.
(i) Argument. The brief must contain a clear and 55.4. Petitioner's Brief in Reply concise argument for the contentions made, with appropriate citations to authorities and The petitioner may file a reply brief addressing
71 any matter in the brief in response. However, the Court Whether to grant review is a matter of may consider and decide the case before a reply brief judicial discretion. Among the factors the is filed. Supreme Court considers in deciding whether to grant a petition for review are the 55.5. Reliance on Prior Brief following:
As a brief on the merits or a brief in response, a (1) whether the justices of the court of party may file the brief that the party filed in the court appeals disagree on an important point of of appeals. law;
55.6. Deleted (2) whether there is a conflict between the courts of appeals on an important point 55.7. Time and Place of Filing; Extension of Time of law;
Briefs must be filed with the Supreme Court clerk (3) whether a case involves the construction in accordance with the schedule stated in the clerk's or validity of a statute; notice that the Court has requested briefs on the merits. If no schedule is stated in the notice, petitioner must (4) whether a case involves constitutional file a brief on the merits within 30 days after the date issues; of the notice, respondent must file a brief in response within 20 days after receiving petitioner’s brief, and (5) whether the court of appeals appears to petitioner must file any reply brief within 15 days after have committed an error of law of such receiving respondent’s brief. On motion complying importance to the state’s jurisprudence with Rule 10.5(b) either before or after the brief is due, that it should be corrected; and the Supreme Court may extend the time to file a brief. (6) whether the court of appeals has decided 55.8. Amendment an important question of state law that should be, but has not been, resolved by On motion showing good cause, the Court may the Supreme Court. allow a party to amend a brief on such reasonable terms as the Court may prescribe. (b) Petition Denied or Dismissed. When the petition has been on file in the Supreme Court 55.9. Court May Require Revision for 30 days, the Court may deny or dismiss the petition — whether or not a response has If a brief does not conform with these rules, the been filed — with one of the following Supreme Court may require the brief to be revised or notations: may return it to the party who filed it and consider the case without further briefing by that party. (1) “Denied.” If the Supreme Court is not satisfied that the opinion of the court of Notes and Comments appeals has correctly declared the law in all respects, but determines that the Comment to 1997 change: The rule is new and petition presents no error that requires provides for a 50 page brief on the merits if requested reversal or that is of such importance to by the Supreme Court. the jurisprudence of the state as to require correction, the Court will deny Comment to 2002 change: Subdivision 55.1 is the petition with the notation “Denied.” clarified to provide that the Court may realign parties to require consolidated briefing for a clearer and more (2) “Dismissed w.o.j.” If the Supreme Court efficient presentation of the case. lacks jurisdiction, the Court will dismiss the petition with the notation “Dismissed for Want of Jurisdiction.” Rule 56. Order on Petition for Review (c) Petition Refused. If the Supreme Court 56.1. Orders on Petition for Review determines — after a response has been filed or requested — that the court of appeals' (a) Considerations in Granting Review. judgment is correct and that the legal
72 principles announced in the opinion are petition, together with the record and accompanying likewise correct, the Court will refuse the papers, for 30 days after the order is rendered. If no petition with the notation “Refused.” The motion for rehearing has been filed by the end of that court of appeals’ opinion in the case has the period or when any motion for rehearing of the order same precedential value as an opinion of the has been overruled, the clerk must send a certified Supreme Court. copy of its order to the court of appeals and return the record and all papers (except for documents filed in (d) Improvident Grant. If the Court has granted the Supreme Court) to the court of appeals clerk. review but later decides that review should not have been granted, the Court may, Notes and Comments without opinion, set aside the order granting review and dismiss the petition or deny or Comment to 1997 change: The rule is from former refuse review as though review had never Rule 133. Subdivision 56.3 regarding settled cases is been granted. added.
56.2. Moot Cases Comment to 2002 change: Subdivision 56.3 is clarified to provide for partial settlements. If a case is moot, the Supreme Court may, after notice to the parties, grant the petition and, without hearing argument, dismiss the case or the appealable Rule 57. Direct Appeals to the Supreme Court portion of it without addressing the merits of the appeal. 57.1. Application
56.3. Settled Cases This rule governs direct appeals to the Supreme Court that are authorized by the Constitution and by If a case is settled by agreement of the parties and statute. Except when inconsistent with a statute or this the parties so move, the Supreme Court may grant the rule, the rules governing appeals to courts of appeals petition if it has not already been granted and, without also apply to direct appeals to the Supreme Court. hearing argument or considering the merits, render a judgment to effectuate the agreement. The Supreme 57.2. Jurisdiction Court's action may include setting aside the judgment of the court of appeals or the trial court without regard The Supreme Court may not take jurisdiction over to the merits and remanding the case to the trial court a direct appeal from the decision of any court other for rendition of a judgment in accordance with the than a district court or county court, or over any agreement. The Supreme Court may abate the case question of fact. The Supreme Court may decline to until the lower court’s proceedings to effectuate the exercise jurisdiction over a direct appeal of an agreement are complete. A severable portion of the interlocutory order if the record is not adequately proceeding may be disposed of if it will not prejudice developed, or if its decision would be advisory, or if the remaining parties. In any event, the Supreme the case is not of such importance to the jurisprudence Court's order does not vacate the court of appeals' of the state that a direct appeal should be allowed. opinion unless the order specifically provides otherwise. An agreement or motion cannot be 57.3. Statement of Jurisdiction conditioned on vacating the court of appeals’ opinion. Appellant must file with the record a statement 56.4. Notice to Parties fully but plainly setting out the basis asserted for exercise of the Supreme Court's jurisdiction. Appellee When the Supreme Court grants, denies, refuses, may file a response to appellant's statement of or dismisses a petition for review, the Supreme Court jurisdiction within ten days after the statement is filed. clerk must send a written notice of the disposition to the court of appeals, the trial court, and all parties to 57.4. Preliminary Ruling on Jurisdiction the appeal. If the Supreme Court notes probable jurisdiction 56.5. Return of Documents to Court of Appeals over a direct appeal, the parties must file briefs under Rule 38 as in any other case. If the Supreme Court When the Supreme Court denies, refuses, or does not note probable jurisdiction over a direct dismisses a petition for review, the clerk will retain the appeal, the appeal will be dismissed.
73 represented by counsel; and 57.5. Direct Appeal Exclusive While Pending. (c) a list of the names, addresses, and If a direct appeal to the Supreme Court is filed, the telephone numbers of counsel for each party. parties to the appeal must not, while that appeal is pending, pursue an appeal to the court of appeals. But 58.4. Transmission of Record if the direct appeal is dismissed, any party may pursue any other appeal available at the time when the direct The certifying court should not send the appeal was filed. The other appeal must be perfected Supreme Court of Texas the record in the pending case within ten days after dismissal of the direct appeal. with the certification order. The Supreme Court may later require the original or copies of all or part of the Notes and Comments record before the certifying court to be filed with the Supreme Court clerk. Comment to 1997 change: This is former Rule 140. The rule is amended without substantive change 58.5. Fees and Costs except subdivision 57.5 is amended to make clear that no party to the direct appeal may pursue the appeal in Unless the certifying court orders otherwise in its the court of appeals while the direct appeal is pending, certification order, the parties must bear equally the but allowing 10 days to perfect a subsequent appeal. fees under Rule 5.
58.6. Notice Rule 58. Certification of Questions of Law by United State Courts If the Supreme Court agrees to answer the questions certified to it, the Court will notify all parties 58.1. Certification and the certifying court. The Supreme Court clerk must also send a notice to the Attorney General of The Supreme Court of Texas may answer Texas if: questions of law certified to it by any federal appellate court if the certifying court is presented with (a) the constitutionality of a Texas statute is the determinative questions of Texas law having no subject of a certified question that the controlling Supreme Court precedent. The Supreme Supreme Court has agreed to answer; and Court may decline to answer the questions certified to it. (b) the State of Texas or an officer, agency, or employee of the state is not a party to the 58.2. Contents of the Certification Order proceeding in the certifying court.
An order from the certifying court must set forth: 58.7. Briefs and Oral Argument
(a) the questions of law to be answered; and (a) Briefs. The appealing party in the certifying court must file a brief with the Supreme Court (b) a stipulated statement of all facts relevant to clerk within 30 days after the date of the the questions certified, showing fully the notice. Opposing parties must file an nature of the controversy in which the answering brief within 20 days after questions arose. receiving the opening brief. Briefs must comply with Rule 55 to the extent its 58.3. Transmission of Certification Order provisions apply. On motion complying with Rule 10.5(b), either before or after the brief is The clerk of the certifying court must send to the due, the Supreme Court may extend the time clerk of the Supreme Court of Texas the following: to file a brief.
(a) the certification order under the certifying (b) Oral Argument. Oral argument may be court’s official seal; granted either on a party's request or on the Court's own initiative. Argument is governed (b) a list of the names of all parties to the pending by Rule 59. case, giving the address and telephone number, if known, of any party not 58.8. Intervention by the State
74 Each side is allowed only as much time as the If the constitutionality of a Texas statute is the Court orders. Counsel is not required to use all the subject of a certified question that the Supreme Court allotted time. On motion filed before the day of has agreed to answer the State of Texas may intervene argument, the Court may extend the time for at any reasonable time for briefing and oral argument argument. The Court may also align the parties for (if argument is allowed), on the question of purposes of presenting argument. constitutionality. 59.5. Number of Counsel 58.9. Opinion on Certified Questions Generally, only one counsel should argue for each If the Supreme Court has agreed to answer a side. Except on leave of court , no more than two certified question, it will hand down an opinion as in counsel on each side may argue. Only one counsel may any other case. argue in rebuttal.
58.10. Answering Certified Questions 59.6. Argument by Amicus Curiae
After all motions for rehearing have been With leave of court obtained before the argument overruled, the Supreme Court clerk must send to the and with a party's consent, an amicus may share certifying court the written opinion on the certified allotted time with that party. Otherwise, counsel for questions. The opinion must be under the Supreme amicus curiae may not argue. Court's seal. Notes and Comments Notes and Comments Comment to 1997 change: Former Rules 170, Comment to 1997 change: This is former Rule 171, and 172 are merged. Subdivisions 59.2 and 59.3 114. The rule is substantially revised, but no are new. Other changes are made. substantive change in procedure is intended, except subdivision 58.10 now allows a motion for rehearing. Rule 60. Judgments in the Supreme Court
Rule 59. Submission and Argument 60.1. Announcement of Judgments
59.1. Submission Without Argument The Court's judgments will be announced by the clerk. If at least six members of the Court so vote, a petition may be granted and an opinion handed down 60.2. Types of Judgment without oral argument. The Supreme Court may: 59.2. Submission With Argument (a) affirm the lower court’s judgment in whole or If the Supreme Court decides that oral argument in part; would aid the Court, the Court will set the case for argument. The clerk will notify all parties of the (b) modify the lower court’s judgment and submission date. affirm it as modified;
59.3. Purpose of Argument (c) reverse the lower court’s judgment in whole or in part and render the judgment that the Oral argument should emphasize and clarify the lower court should have rendered; written arguments in the briefs. Counsel should not merely read from a prepared text. Counsel should (d) reverse the lower court’s judgment and assume that all Justices have read the briefs before oral remand the case for further proceedings; argument and should be prepared to respond to the Justices’ questions. (e) vacate the judgments of the lower courts and dismiss the case; or 59.4. Time for Argument (f) vacate the lower court’s judgment and
75 remand the case for further proceedings in light of changes in the law. (a) probably caused the rendition of an improper judgment; or 60.3. Remand in the Interest of Justice (b) probably prevented the petitioner from When reversing the court of appeals' judgment, properly presenting the case to the appellate the Supreme Court may, in the interest of justice, courts. remand the case to the trial court even if a rendition of judgment is otherwise appropriate. 61.2. Error Affecting Only Part of the Case
60.4. Judgment for Costs If the error affects a part, but not all, of the matter in controversy, and that part is separable without The Supreme Court’s judgment will award to the unfairness to the parties, the judgment must be prevailing party the costs incurred by that party in the reversed and a new trial ordered only as to the part Supreme Court. If appropriate, the judgment may also affected by the error. The Court may not order a award the prevailing party the costs — including separate trial solely on unliquidated damages if preparation costs for the record — incurred by that liability is contested. party in the court of appeals and in the trial court. But the Court may tax costs otherwise as required by law 61.3. Defects in Procedure or for good cause. The Supreme Court will not affirm or reverse a 60.5. Judgment Against Sureties judgment or dismiss a petition for review for formal defects or irregularities in appellate procedure without When affirming, modifying, or rendering a allowing a reasonable time to correct or amend the judgment against the party who was the appellant in defects or irregularities. the court of appeals, the Supreme Court must render judgment against the sureties on that party's 61.4. Remediable Error of the Trial Court or supersedeas bond, if any, for the performance of the Court of Appeals judgment. If the Supreme Court taxes costs against the party who was the appellant in the court of appeals, the (a) Generally. The Supreme Court will not Court must render judgment for those costs against the affirm or reverse a judgment or dismiss a sureties on that party's supersedeas bond, if any. petition for review if:
60.6. Other Orders (1) the trial court's or court of appeals' erroneous action or failure or refusal to The Supreme Court may make any other act prevents the proper presentation of a appropriate order required by the law and the nature of case to the Supreme Court; and the case. (2) the trial court or court of appeals can Notes and Comments correct its action or failure to act.
Comment to 1997 change: Former Rules 180 and (b) Supreme Court Direction if Error 182(a) are merged. Subdivision 60.1 is from former Remediable. If the circumstances described Rule 181. Paragraphs 60.2(b), (e), and (f) are new but in (a) exist, the Supreme Court will direct the codify current practice. Subdivision 60.6 is new. Other trial court or court of appeals to correct the changes are made. error. The Supreme Court will then proceed as if the error had not occurred.
Rule 61. Reversible Error Notes and Comments
61.1. Standard for Reversible Error Comment to 1997 change: Former Rules 184 and 185 are merged. The reversible error standard is No judgment may be reversed on appeal on the amended to omit the reference to an action ground that the trial court made an error of law unless “reasonably calculated to cause” an improper the Supreme Court concludes that the error judgment, but no substantive change is intended. complained of: Subdivision 61.3 is amended to delete the reference to
76 defects of “substance.” the rehearing.
64.3. Response and Decision Rule 62. Damages for Frivolous Appeals No response to a motion for rehearing need be If the Supreme Court determines that a direct filed unless the Court so requests. A motion will not appeal or a petition for review is frivolous, it may — be granted unless a response has been filed or on motion of any party or on its own initiative, after requested by the Court. But in exceptional cases, if notice and a reasonable opportunity for response — justice so requires, the Court may deny the right to file award to each prevailing party just damages. In a response and act on a motion any time after it is filed. determining whether to award damages, the Court must not consider any matter that does not appear in 64.4. Second Motion the record, briefs, or other papers filed in the court of appeals or the Supreme Court. The Court will not consider a second motion for rehearing unless the Court modifies its judgment, Notes and Comments vacates its judgment and renders a new judgment, or issues a different opinion. Comment to 1997 change: This is former Rule 182(b). The rule is changed from allowing a sanction 64.5. Extensions of Time when an appeal “filed for delay and without sufficient cause” to allowing a sanction when the appeal is The Court may extend the time to file a motion for “frivolous.” A requirement for notice and an rehearing in the Supreme Court, if a motion complying opportunity to respond is included. with Rule 10.5(b) is filed with the Court no later than 15 days after the last date for filing a motion for rehearing. Rule 63. Opinions; Copy of Opinion and Judgment to Interested Parties and Other Courts 64.6. Deleted
The Supreme Court will hand down a written opinion in all cases in which it renders a judgment. The Notes and Comments clerk will send a copy of the opinion and judgment to the court of appeals clerk, the trial court clerk, the Comment to 1997 change: This is former Rule regional administrative judge, and all parties to the 190. The service and notice provisions of former appeal. subdivisions (b) and (c) are deleted. See Rule 9.5. Other changes are made. Notes and Comments Comment to 2008 change: Subdivision 64.4 is Comment to 1997 change: This is former Rule amended to reflect the Court's practice of considering 181 with changes. a second motion for rehearing after modifying its judgment or opinion in response to a prior motion for rehearing. When the Court modifies its opinion Rule 64. Motion for Rehearing without modifying its judgment, the Court will ordinarily deny a second motion for rehearing unless 64.1. Time for Filing the new opinion is substantially different from the original opinion. A motion for rehearing may be filed with the Supreme Court clerk within 15 days from the date when the Court renders judgment or makes an order Rule 65. Enforcement of Judgment after Mandate disposing of a petition for review. In exceptional cases, if justice requires, the Court may shorten the 65.1. Statement of Costs time within which the motion may be filed or even deny the right to file it altogether. The Supreme Court clerk will prepare, and send to the clerk to whom the mandate is directed, a 64.2. Contents statement of costs showing:
The motion must specify the points relied on for (a) the costs that were incurred in the Supreme
77 Court, with a notation of those items that has not been, but should be, settled by the have been paid and those that are owing; and Court of Criminal Appeals;
(b) the party or parties against whom costs have (c) whether a court of appeals has decided an been adjudged. important question of state or federal law in a way that conflicts with the applicable 65.2. Enforcement of Judgment decisions of the Court of Criminal Appeals or the Supreme Court of the United States; If the Supreme Court renders judgment, the trial court need not make any further order. Upon receiving (d) whether a court of appeals has declared a the Supreme Court's mandate, the trial court clerk must statute, rule, regulation, or ordinance proceed to enforce the judgment of the Supreme unconstitutional, or appears to have Court's as in any other case. Appellate court costs must misconstrued a statute, rule, regulation, or be included with the trial court costs in any process to ordinance; enforce the judgment. If all or part of the costs are collected, the trial court clerk must immediately remit (e) whether the justices of a court of appeals to the appellate court clerk any amount due to that have disagreed on a material question of law clerk. necessary to the court's decision; and
Notes and Comments (f) whether a court of appeals has so far departed from the accepted and usual course of judicial Comment to 1997 change: Subdivision 65.1 is proceedings, or so far sanctioned such a new. Subdivision 65.2 is from former Rule 183. departure by a lower court, as to call for an exercise of the Court of Criminal Appeals' power of supervision. SECTION FIVE: PROCEEDINGS IN THE COURT OF CRIMINAL APPEALS 66.4. Documents to Aid Decision
Rule 66. Discretionary Review in General (a) Acquiring Documents. The Court of Criminal Appeals — or any judge of the 66.1. With or Without Petition Court — may order the court of appeals clerk to promptly send the following items to the The Court of Criminal Appeals may review a Court in order to aid it in deciding whether to court of appeals' decision in a criminal case on its own grant discretionary review: initiative under Rule 67 or on the petition of a party under Rule 68. (1) the appellate record;
66.2. Not a Matter of Right (2) a copy of the opinions of the court of appeals; Discretionary review by the Court of Criminal Appeals is not a matter of right, but of the Court's (3) a copy of the motions filed in the court discretion. of appeals; and
66.3. Reasons for Granting Review (4) certified copies of any judgment or order of the court of appeals. While neither controlling nor fully measuring the Court of Criminal Appeals' discretion, the following (b) Return of Documents. If discretionary review will be considered by the Court in deciding whether to is not granted, the clerk of the Court of grant discretionary review: Criminal Appeals will return the appellate record to the court of appeals clerk. (a) whether a court of appeals' decision conflicts with another court of appeals' decision on the Notes and Comments same issue; Comment to 1997 change: This is former Rule (b) whether a court of appeals has decided an 200. The former rule's reference to motions for important question of state or federal law that rehearing now appears in Rule 49.9. The rule is
78 otherwise amended without substantive change. On petition by any party, the Court of Criminal Appeals may review a court of appeals' decision in a criminal case. Rule 67. Discretionary Review Without Petition 68.2. Time to File Petition 67.1. Four Judges' Vote (a) First Petition. The petition must be filed By a vote of at least four judges, the Court of within 30 days after either the day the court Criminal Appeals may grant review of a court of of appeals' judgment was rendered or the day appeals' decision in a criminal case at any time before the last timely motion for rehearing or timely the mandate of the court of appeals issues. An order motion for en banc reconsideration was granting review will be filed with the clerk of the Court overruled by the court of appeals. of Criminal Appeals, who must send a copy to the court of appeals clerk. (b) Subsequent Petition. Even if the time specified in (a) has expired, a party who 67.2. Order Staying Mandate otherwise may file a petition may do so within 10 days after the timely filing of To provide enough time for the Court of Criminal another party's petition. Appeals to decide whether to grant discretionary review under 67.1, the Court — or any judge of the (c) Extension of Time. The Court of Criminal Court — may file with the clerk of the court of appeals Appeals may extend the time to file a petition an order staying the court of appeals' mandate. The for discretionary review if a party files a order must be signed by a judge of the Court of motion complying with Rule 10.5(b) no later Criminal Appeals. The clerk of the Court of Criminal than 15 days after the last day for filing the Appeals must immediately send a copy of the order to petition. The Court of Criminal Appeals may the court of appeals clerk. extend the time to file a response or reply if a party files a motion complying with Rule 67.3. Time to Issue Mandate Extended 10.5(b) either before or after the response or reply is due. Unless otherwise limited in the order itself, an order staying the court of appeals' mandate under 67.2 Notes and Comments will extend for an additional 45 days the time before issuance of the court of appeals' mandate. An order Comment to 2011 change: The amendment to granting review prevents the issuance of the court of Rule 68.2(a) resolves timely filing questions appeals' mandate pending the further order of the concerning motions for en banc reconsideration by Court of Criminal Appeals. If four judges do not agree including those motions in calculating time to file. to grant review within that time the court of appeals clerk must issue the mandate. 68.3. Where to File Petition
Notes and Comments (a) The petition and all copies of the petition must be filed with the clerk of the Court of Comment to 1997 change: This is former Rule Criminal Appeals. 201. The rule is amended without substantive change. (b) Petition Filed in Court of Appeals. If a Comment to 2000 change: Language which was petition is mistakenly filed in the court of in the catchline of former Rule 201 has been deleted appeals, the petition is deemed to have been from Rule 67.1, to restore the substance of the rule, filed the same day with the clerk of the Court and to remove any implication that the court may not of Criminal Appeals, and the court of appeals grant review on its own motion when a petition for clerk must immediately send the petition to discretionary review has been filed. the clerk of the Court of Criminal Appeals.
Notes and Comments Rule 68. Discretionary Review With Petition Comment to 2011 change: Rule 68.3 is changed 68.1. Generally to require petitions for discretionary review to be filed in the Court of Criminal Appeals rather than in the
79 court of appeals. With the deletion of Rule 50, there and is no reason to file petitions in the court of appeals. Rule 68.3(b) is added to address and prevent the (3) the date the motion for rehearing was untimely filing of petitions for discretionary review overruled or otherwise disposed of. that are incorrectly filed in the court of appeals rather than in the Court of Criminal Appeals. (g) Grounds for Review. The petition must state briefly, without argument, the grounds on 68.4. Contents of Petition which the petition is based. The grounds must be separately numbered. If the petitioner has A petition for discretionary review must be as access to the record, the petitioner must (after brief as possible. It must be addressed to the “Court of each ground) refer to the page of the record Criminal Appeals of Texas” and must state the name where the matter complained of is found. of the party or parties applying for review. The petition Instead of listing grounds for review, the must contain the following items: petition may contain the questions presented for review, expressed in the terms and (a) Identity of Judge, Parties, and Counsel. The circumstances of the case but without petition must list the trial court judge, all unnecessary detail. The statement of parties to the judgment or order appealed questions should be short and concise, not from, and the names and addresses of all trial argumentative or repetitious. and appellate counsel. (h) Argument. The petition must contain a direct (b) Table of Contents. The petition must include and concise argument, with supporting a table of contents with references to the authorities, amplifying the reasons for pages of the petition. The table of contents granting review. See Rule 66.3. The court of must indicate the subject matter of each appeals' opinions will be considered with the ground or question presented for review. petition, and statements in those opinions need not be repeated if counsel accepts them (c) Index of Authorities. The petition must as correct. include an index of authorities arranged alphabetically and indicating the pages of the (i) Prayer for Relief. The petition must state petition where the authorities are cited. clearly the nature of the relief sought.
(d) Statement Regarding Oral Argument. The (j) Appendix. The petition must contain a copy petition must include a short statement of of any opinion of the court of appeals. why oral argument would be helpful, or a statement that oral argument is waived. If a 68.5. Deleted reply or cross-petition is filed, it likewise must include a statement of why oral 68.6. Nonconforming Petition argument should or should not be heard. The Court may strike, order redrawn, or (e) Statement of the Case. The petition must state summarily refuse a petition for discretionary review briefly the nature of the case. This statement that is unnecessarily lengthy or that does not conform should seldom exceed half a page. The details to these rules. of the case should be reserved and stated with the pertinent grounds or questions. 68.7. Court of Appeals Clerk's Duties
(f) Statement of Procedural History. The Within 15 days of receiving notice of the filing of petition must state: a petition for discretionary review from the clerk of the Court of Criminal Appeals, the clerk of the court of (1) the date any opinion of the court of appeals must send to the clerk of the Court of Criminal appeals was handed down, or the date of Appeals the record, any motions filed in the case, and any order of the court of appeals copies of any judgments, opinions, and orders of the disposing of the case without an opinion; court of appeals. The clerk need not forward any nondocumentary exhibits unless ordered to do so by (2) the date any motion for rehearing was the Court of Criminal Appeals. filed (or a statement that none was filed);
80 Notes and Comments on the State Prosecuting Attorney.
Comment to 2011 change: Rule 68.7(a) and (b) Notes and Comments are deleted and (c) is amended to reflect changes consistent with filing the petition and reply in the Comment to 1997 change: This is former Rule Court of Criminal Appeals rather than in the court of 202. Subdivisions (k) and (l) of the former rule have appeals, and to order the record to be sent to the Court been relocated to Rule 69. The new rule limits the of Criminal Appeals. Additionally, Rule 68.7(c) is length of a petition and reply. The time for amendment amended to delete reference to Rule 50, which is of a petition or reply is increased to conform with the abolished. amendment in Rule 50. The rule is otherwise amended without substantive change. 68.8. Court of Criminal Appeals Clerk’s Duties Comment to 2002 change: The original catchline Upon receipt of the record from the court of of subdivision 68.4(g) was "Reasons for Review," appeals, the clerk of the Court of Criminal Appeals which caused confusion because of its similarity to the will file the record and enter the filing on the docket. catchline in subdivision 66.3 ("Reasons for Granting Review"). It is changed to "Argument." Notes and Comments Comment to 2011 change: The address for the Comment to 2011 change: Rule 68.8 is amended State Prosecuting Attorney is deleted because it has to reflect changes consistent with filing the petition in changed and may change again. the Court of Criminal Appeals. Rule 69. Action of Court on Petition for 68.9 Reply. Discretionary Review and After Granting Review
The opposing party has 15 days after the timely 69.1. Granting or Refusal filing of the petition in the Court of Criminal Appeals to file a reply to the petition with the clerk of the Court If four judges do not vote to grant a petition for of Criminal Appeals. discretionary review, the Court will enter a docket notation that the petition is refused. If four judges vote Notes and Comments to grant a petition, the Court will enter a docket notation that discretionary review is granted. Comment to 2011 change. This Rule is added so that any reply will be filed in the Court of Criminal 69.2. Setting Case for Submission Appeals since the petition is also filed in the Court of Criminal Appeals. If discretionary review is granted, either on the petition of a party or by the Court on its own initiative, 68.10. Amendment the case will be set for submission.
Upon motion the petition or a reply may be 69.3. Improvident Grant of Review amended or supplemented at any time justice requires. If, after granting discretionary review, five judges Notes and Comments are of the opinion that discretionary review should not have been granted, the case will be dismissed. Comment to 2011 change: This Rule is changed to reflect the filing of the petition and any reply in the 69.4. Clerk's Duties Court of Criminal Appeals. Thus, the rule is also changed to require a motion and to delete a time frame (a) On Refusal or Dismissal. When the Court because the petition will be filed in the Court of refuses or dismisses a petition, the clerk will Criminal Appeals. send to the parties and the State Prosecuting Attorney a notice informing them that the 68.11. Service on State Prosecuting Attorney petition was refused or dismissed. The clerk will retain the petition and all other items In addition to the service required by Rule 9.5, filed in the case for at least 15 days from the service of the petition, the reply, and any amendment date of the refusal or dismissal. At the end of or supplementation of a petition or reply must be made that time, if no motion for rehearing has been
81 timely filed, or upon the overruling or dismissal of such a motion, the clerk will Comment to 1997 change: This is former Rule send to the court of appeals clerk a certified 203. The rule is amended without substantive change. copy of the order refusing or dismissing the petition (as well as any order overruling a motion for rehearing). The clerk of the Court Rule 71. Direct Appeals of Criminal Appeals will return the appellate record to the court of appeals clerk but will 71.1. Direct Appeal retain the petition, and other documents filed in the Court of Criminal Appeals. Cases in which the death penalty has been assessed under Code of Criminal Procedure article (b) On Granting Review. If the Court grants 37.071, and cases in which bail has been denied in discretionary review, the clerk will send to non-capital cases under Article I, Section 11a of the the parties and the State Prosecuting Attorney Constitution, are appealed directly to the Court of a notice informing them that discretionary Criminal Appeals. review was granted. 71.2. Record Notes and Comments Comment to 1997 change: This is former The appellate record should be prepared and filed subdivisions (k) and (l) of Rule 202. Internal in accordance with Rules 31, 32, 34, 35 and 37, except procedures of the Court are deleted. Provisions are that the record must be filed in the Court of Criminal added in 69.4(a) and (b) for the clerk to send notice of Appeals. After disposition of the appeal, the Court the granting, refusal, or dismissal of a petition for may discard copies of juror information cards or other discretionary review. Other nonsubstantive changes portions of the clerk's record that are not relevant to an are made. issue on appeal.
71.3. Briefs Rule 70. Brief on the Merits Briefs in a direct appeal should be prepared and 70.1. Initial Brief filed in accordance with Rule 38, except that the brief need not contain an appendix (Rule 38.1(k)). All If review is granted, the petitioner — or, if there briefs must be filed in the Court of Criminal Appeals. was no petition, the party who lost in the court of The brief must include a short statement of why oral appeals — must file a brief within 30 days after review argument would be helpful, or a statement that oral is granted. argument is waived.
70.2. Respondent’s Brief 71.4. Additional Briefs
The opposing party must file a brief within 30 Upon motion by a party the Court may permit the days after the petitioner's brief is filed. filing of additional briefs other than those provided for in Rule 38. 70.3. Brief Contents and Form Notes and Comments Briefs must comply with the requirements of Rules 9 and 38, except that they need not contain Comment to 1997 change: This is former Rule the appendix (Rule 38.1(k)). Copies must be served 210. The rule is extended to all direct appeals. A page as required by Rule 68.11. limit is added for death penalty cases. Other nonsubstantive changes are made. 70.4. Other Briefs Comment to 2002 change: A requirement that The Court of Criminal Appeals may direct that a briefs include a statement regarding oral argument is party file a brief, or an additional brief, in a particular added. case. Additionally, upon motion by a party the Court may permit the filing of additional briefs. Rule 72. Extraordinary Matters Notes and Comments
82 72.1. Leave to File two pages provided for each ground in the form. The applicant or petitioner may file a A motion for leave to file must accompany an separate memorandum. This memorandum original petition for writ of habeas corpus, mandamus, shall comply with these rules and shall not procedendo, prohibition, certiorari, or other exceed 15,000 words if computer-generated extraordinary writ, or any other motion not otherwise or 50 pages if not. If the total number of provided for in these rules. pages, including those in the original and any additional memoranda, exceed the word or 72.2. Disposition page limits, an application may be dismissed unless the convicting court for good cause If five judges tentatively believe that the case shown grants leave to exceed the prescribed should be filed and set for submission, the motion for limits. The prescribed limits do not include leave will be granted and the case will then be handled appendices, exhibits, cover page, table of and disposed of in accordance with Rule 52.7. If the contents, table of authorities, and certificate motion for leave is denied, no motions for rehearing or of compliance. reconsideration will be entertained. But the Court may, on its own initiative, reconsider a denial of a motion (e) Typeface. A computer-generated for leave. memorandum must be printed in a conventional typeface no smaller than 14- Notes and Comments point except for footnotes, which must be no smaller than 12-point. A typewritten Comment to 1997 change: This is former Rule document must be printed in standard 10- 211. The rule is amended to include all the Court’s character-per-inch (cpi) monospaced jurisdiction of extraordinary matters. Internal typeface. procedures of the Court are deleted. Other nonsubstantive changes are made. (f) Certificate of compliance. A computer- generated memorandum, including any additional memoranda, must include a Rule 73. Postconviction Applications for Writs of certificate by the applicant or petitioner Habeas Corpus stating the number of words in the document. The person certifying may rely on the word 73.1. Form for Application Filed Under Article count of the computer program used to 11.07 of the Code of Criminal Procedure prepare the document.
(a) Prescribed Form. An application filed under (g) Verification. The application must be Article 11.07 must be on the form prescribed verified by either: by the Court of Criminal Appeals. (1) oath made before a notary public or (b) Availability of Form. The district clerk of the other officer authorized to administer county of conviction shall make the forms oaths; or available to applicants on request, without charge. (2) if the person making the application is an inmate in the Institutional Division (c) Contents. The applicant or petitioner must of the Department of Criminal Justice or provide all information required by the form. in a county jail, an unsworn declaration The form must include all grounds for relief in substantially the form required in and set forth in summary fashion the facts Civil Practice and Remedies Code supporting each ground. Any ground not chapter 132. raised on the form will not be considered. Legal citations and arguments may be made 73.2. Noncompliant Applications in a separate memorandum. The form must be computer-generated, typewritten, or The Court of Criminal Appeals may dismiss an legibly handwritten. application that does not comply with these rules.
(d) Length. Each ground for relief and supporting 73.3. State's Response facts raised on the form shall not exceed the
83 Any response by the State must comply with length, typeface, and certificate of compliance (D) whether a hearing was held on the requirements set out in rule 73.1 (d),(e) and (f). application, whether findings of fact were made, any recommendation of 73.4. Filing and Transmission of Habeas Record the convicting court, and the name of the judge who presided over the (a) The district clerk of the county of conviction application. shall accept and file all Code of Criminal Procedure article 11.07 applications. (E) the name of counsel if applicant is represented. (b) In addition to the duties set out in Article 11.07, the clerk shall do the following: The Court of Criminal Appeals may by order adopt a form of summary sheet that the district clerks must (1) If the convicting court enters an use. order designating issues, the clerk shall immediately transmit to the Court of (4) The district clerk shall also include in Criminal Appeals a copy of that order the record transmitted to the Court of and proof of the date the district attorney Criminal Appeals, among any other received the habeas application. pertinent papers or supplements, the indictment or information, any plea (2) When any pleadings, objections, papers, the court's docket sheet, the motions, affidavits, exhibits, proposed or court's charge and the jury's verdict, any entered findings of fact and conclusions proposed findings of fact and of law, or other orders are filed or made conclusions of law, the court's findings a part of the record, the district clerk of fact and conclusions of law, any shall immediately send a copy to all objections to the court's findings of fact parties in the case. A party has ten days and conclusions of law filed by either from the date he receives the trial court’s party, and the transcript of any hearings findings of fact and conclusions of law held. to file objections, but the trial court may, nevertheless, order the district (5) On the 181st day from the date of receipt clerk to transmit the record to the Court of the application by the State of a of Criminal Appeals before the postconviction application for writ of expiration of the ten days. habeas corpus under Article 11.07, the district clerk shall forward the writ (3) When a district clerk transmits the record record to this Court unless the district in a postconviction application for a writ court has received an extension of time of habeas corpus under Code of Criminal from the Court of Criminal Appeals Procedure articles 11.07 or 11.071, the pursuant to Rule 73.5. district clerk must prepare and transmit a summary sheet that includes the 73.5. Time Frame for Resolution of Claims Raised following information: in Application
(A) the convicting court’s name and Within 180 days from the date of receipt of the county, and the name of the judge application by the State, the convicting court shall who tried the case; resolve any issues that the court has timely designated for resolution. Any motion for extension of time must (B) the applicant’s name, the offense, be filed in the Court of Criminal Appeals before the the plea, the cause number, the expiration of the 180-day period. sentence, and the date of sentence, as shown in the judgment of 73.6. Action on Application conviction; The Court may deny relief based upon its own (C) the cause number of any appeal review of the application or may issue such other from the conviction and the citation instructions or orders as may be appropriate. to any published report;
84 Notes and Comments or part of the record before the certifying court to be filed with the Court of Criminal Appeals clerk. Comment to 1997 change: This is former Rule 4 of the Appendix for Criminal Cases. The rule is 74.5. Notice amended without substantive change. If the Court of Criminal Appeals agrees to answer Comment to 2000 change: Rules 73.1 and 73.2 are the questions certified to it, the Court will notify all added, and a form is added in an appendix. parties and the certifying court. The Court of Criminal Appeals clerk must also send a notice to the Attorney General of Texas if: Rule 74. Review of Certified State Criminal-Law Questions (a) the constitutionality of a Texas statute is the subject of a certified question that the Court 74.1. Certification of Criminal Appeals has agreed to answer; and The Court of Criminal Appeals may answer questions of Texas criminal law certified to it by any (b) the State of Texas or an officer, agency, or federal appellate court if the certifying court is employee of the State is not a party to the presented with determinative questions of Texas proceeding in the certifying court. criminal law having no controlling Court of Criminal Appeals precedent. The Court may decline to answer 74.6. Briefs and Oral Argument the questions certified to it. (a) Briefs. The appealing party in the certifying 74.2. Contents of the Certification Order court must file a brief with the clerk of the Court of Criminal Appeals within 30 days An order from the certifying court must set forth: after the date of the notice. Opposing parties must file an answering brief within 15 days (a) the questions of law to be answered; and of receiving the opening brief. Briefs must comply with Rule 38 to the extent that its (b) a stipulated statement of all facts relevant to provisions apply. the questions certified, showing fully the nature of the controversy in which the (b) Oral Argument. Oral argument may be questions arose. granted either on a party's request or on the Court's own initiative. Argument is governed 74.3. Transmission of Certification Order by Rule 39.
The clerk of the certifying court must send to the 74.7. Intervention by the State clerk of the Court of Criminal Appeals the following: If the constitutionality of a Texas statute is the (a) the certification order under the certifying subject of a certified question that the Court of court’s official seal; Criminal Appeals has agreed to answer, the State of Texas may intervene at any reasonable time for (b) a list of the names of each party to the briefing and oral argument (if argument is allowed) on pending case, giving the address and the question of constitutionality. telephone number, if known, of any party not represented by counsel; and 74.8. Opinion on Certified Question
(c) a list of the names and addresses of counsel If the Court of Criminal Appeals has agreed to for each party. answer a certified question, it will hand down an opinion as in any other case. 74.4. Transmission of Record 74.9. Motion for Rehearing The certifying court should not send to the Court of Criminal Appeals the record in the pending case Any party may file a motion for rehearing within with the certification order. The Court of Criminal 15 days after the opinion is handed down. The motion Appeals may later require the original or copies of all must clearly state the points relied on for the rehearing.
85 No reply to a motion for rehearing need be filed unless 220. The rule is amended without substantive change. the Court so requests. The Court will not grant a motion for rehearing unless a response has been filed or requested. Rule 76. Submissions En Banc
74.10. Answering Certified Questions The Court will sit en banc to consider the following types of cases: After all motions for rehearing have been overruled, the clerk of the Court of Criminal Appeals (a) direct appeals; must send to the certifying court the written opinion on the certified questions. The opinion must be under (b) cases of discretionary review; the Court of Criminal Appeals' seal. (c) cases in which leave to file was granted under Notes and Comments Rule 72;
Comment to 1997 change: This is former Rule (d) cases that were docketed under Code of 214. The rule is amended without substantive change. Criminal Procedure articles 11.07 or 11.071;
Rule 75. Notification; Oral Argument (e) certified questions; and
75.1. Notification of Argument or Submission (f) rehearings under Rule 79.
Oral argument will be permitted only in cases Notes and Comments designated by the Court of Criminal Appeals. If the Court permits argument in a case, the clerk will notify Comment to 1997 change: This is former rule the parties of the date set for argument. If a case will 222. The rule is expanded to include other kinds of be submitted without argument, the clerk will notify cases. Internal procedures of the Court are deleted. the parties of the date of submission. The clerk must Other nonsubstantive changes are made. use all reasonable diligence to notify counsel of settings, but counsel's failure to receive notice will not necessarily prevent argument or submission of the Rule 77. Opinions case on the day it is set. 77.1. Generally 75.2. Request for Argument In each case that is argued or submitted without If a case is not designated for oral argument but argument to the Court of Criminal Appeals, the Court counsel desires oral argument, counsel may — within will hand down a written opinion setting forth the 30 days of the date of the clerk's notice — petition the reasons for its decision and any germane precedent. Court to allow oral argument. This petition must Any judge may file an opinion dissenting from or contain specific reasons why oral argument is desired. concurring in the Court's judgment.
75.3. Oral Argument 77.2. Signing; Publication
Unless extended in a special case, the total A majority of the judges will determine whether maximum time for oral argument is 20 minutes per an opinion will be signed by a judge or issued per side. Counsel for the appellant or petitioner is entitled curiam, and whether the opinion (or a portion of the to open and conclude the argument. Counsel should opinion) will be published. not read at length from the briefs, records, or authorities. Counsel may orally correct a brief, but 77.3. Unpublished Opinions multiple additional citations should not be given orally; instead, these citations should be filed in Unpublished opinions have no precedential value writing with the clerk. and must not be cited as authority by counsel or by a court. Notes and Comments 77.4. Copies Comment to 1997 change: This is former Rule
86 On the date when an opinion is handed down or an order rendered, the clerk of the Court of Criminal The Court of Criminal Appeals may make any Appeals must mail copies of the opinion or order to: other appropriate order required by the law and the nature of the case. (a) the parties; Notes and Comments (b) the State Prosecuting Attorney; Comment to 1997 change: The rule is new. (c) the trial court clerk; and
(d) if the case is of discretionary review, the Rule 79. Rehearings court of appeals clerk. 79.1. Motion for Rehearing Notes and Comments A motion for rehearing may be filed with the Comment to 1997 change: This is former Rule Court of Criminal Appeals clerk within 15 days from 223. The rule is amended without substantive change. the date of the judgment or order. In exceptional cases, if justice requires, the Court may shorten the time within which the motion may be filed or even deny the Rule 78. Judgments in the Court of Criminal right to file it altogether. Appeals 79.2. Contents 78.1. Types of Judgment (a) The motion must briefly and distinctly state The Court of Criminal Appeals may: the grounds and arguments relied on for rehearing. (a) affirm the lower court’s judgment in whole or in part; (b) A motion for rehearing an order that grants discretionary review may not be filed. (b) modify the lower court’s judgment and affirm it as modified; (c) A motion for rehearing an order that refuses a petition for discretionary review may be (c) reverse the court’s judgment in whole or in grounded only on substantial intervening part and render the judgment that the lower circumstances or on other significant court should have rendered; circumstances which are specified in the motion. Counsel must certify that the motion (d) reverse the lower court’s judgment and is so grounded and that the motion is made in remand the case for further proceedings; good faith and not for delay.
(e) vacate the judgments of the lower courts and (d) A motion for rehearing an order that denies dismiss the case; habeas corpus relief or dismisses a habeas corpus application under Code of Criminal (f) vacate the lower court’s judgment and Procedure, articles 11.07 or 11.071, may not remand the case for further proceedings in be filed. The Court may on its own initiative light of changes in the law; or reconsider the case.
(g) dismiss the appeal. Notes and Comments
78.2. Remand in the Interests of Justice Comment to 2011 change: Rule 79.2(c) is amended so that it applies only to petitions for When reversing the court of appeals' judgment, discretionary review that are refused. Additionally, the Court of Criminal Appeals may, in the interests of the certification requirement is changed to encompass justice, remand the case to the trial court even if a a broader basis for rehearing. rendition of judgment is otherwise appropriate. 79.3. Amendments 78.3. Other Orders
87 A motion for rehearing may be amended anytime before the period allowed for filing the motion expires, The Court may extend the time for filing a motion and with leave of the court, anytime before the Court or a further motion for rehearing if a party files a decides the motion. motion complying with Rule 10.5(b) within the time for filing a motion or further motion for rehearing. 79.4. Decision 79.7. Service If the Court grants rehearing, the case will be set for submission. Oral argument may, but normally will The requirements of Rule 68.11 apply. not, be permitted. Notes and Comments 79.5. Further Motion for Rehearing Comment to 1997 change: This is former Rule The Court will not consider a second motion for 230, and the portion of former Rule 213 that prohibited rehearing after rehearing is denied. If rehearing is motions for rehearing. The Court may now permit oral granted and the Court delivers an opinion on argument after granting rehearing, although it is rehearing, a party may file a further motion for disfavored. A further motion for rehearing may now rehearing. be filed by any party, rather than only the losing party. Other nonsubstantive changes are made. 79.6. Extension of Time
88 APPENDIX TO THE TEXAS RULES OF APPELLATE PROCEDURE
APPENDIX A
IN THE SUPREME COURT OF TEXAS ORDER REGARDING FEES CHARGED IN CIVIL CASES IN THE SUPREME COURT AND THE COURTS OF APPEALS AND BEFORE THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION
A. In the Supreme Court: 1. The following fees have been set by statute (TEX. GOV’T CODE §§51.005, 51.0051, and 51.941) and will be collected by the clerk except from parties who are exempt by statute:
(a) petition for review .................................................................................................... $155 (b) additional fee if petition for review is granted............................................................. $75 (c) original proceeding .................................................................................................... $155 (d) additional fee if original proceeding is granted ........................................................... $75 (e) certified question from a federal court of appeals ..................................................... $180 (f) direct appeals to the Supreme Court .......................................................................... $205 (g) any other proceeding filed in the Supreme Court ...................................................... $180 (h) administering an oath with sealed certificate of oath .................................................... $5 (i) certified copies of any papers of record in offices, including certificate and seal ........................................................................$.50 per page $5 minimum
2. The following fees have been set consistent with (TEX. GOV’T CODE §§552.262 and 1 TEX. ADMIN. CODE §70.3 (2007) (Tex. Atty. Gen.. Charges for Providing Copies of Public Information):
(a) standard paper copy of document without certificate or seal (single-sided) ....................................................$0.10 per page or part of page (b) standard paper copy of document without certificate or seal (double-sided) ...................................................$0.10 per page or part of side of page (c) personnel, overhead, and document retrieval charges ................................ as provided by 1 TEX. ADMIN. CODE §70.3 (d) audio tape of oral argument ............................................................................. $1 per tape (e) digital video disc of oral argument ................................................................ $3 per DVD Note: the fees listed above for audio tapes, DVDs, and paper copies do not include any personnel, overhead, or document retrieval charges; those charges may be added to the fees listed above if appropriate, as determined by the Court.
3. Pursuant to TEX. GOV’T CODE § 51.005, the following additional fees are set:
(a) comparing and certifying copies of documents ..........................................$1.00 per page $5 minimum (b) motions for rehearing................................................................................................... $15 (c) motions not otherwise listed ........................................................................................ $10 (d) exhibits tendered for oral argument ............................................................................. $25
B. In the courts of appeals:
1. The following fees have been set by statute (TEX. GOV’T CODE §§51.207, 51.208, and 51.941) and will be collected by the clerk except from parties who are exempt by statute.
(a) appeals to the court of appeals from the district and county courts ........................... $205 (b) original proceeding .................................................................................................... $155 (c) administering an oath with sealed certificate of oath .................................................... $5 (d) certified copies of any papers of record in offices, including certificate and seal certification ..................................................$1.00 per page $5 minimum (e) comparing and certifying copies of documents ..........................................$1.00 per page $5 minimum
2. The following fees have been set consistent with TEX. GOV’T CODE §552.262 and 1 TEX. ADMIN. CODE §70.3 (2007) (Tex. Att’y Gen., Charges for Providing Copies of Public Information):
(a) standard paper copy of document without certificate or seal (single-sided).....................................................$0.10 per page or part of page (b) standard paper copy of document without certification or seal (double-sided) .................................... $0.10 per side of page or part of side of page (c) personnel, overhead, and document retrieval charges ................................ as provided by 1 TEX. ADMIN. CODE §70.3 (d) audio tape or oral argument (if available)........................................................ $1 per tape (e) VHS video tape of oral argument (if available) .......................................... $2.50 per tape (f) digital video disc of oral argument (if available) ........................................... $3 per DVD
Page 2 of 3 Note: the fees listed above for audio tapes, videotapes, DVDs, and paper copies do not include any personnel, overhead, or document retrieval charges; those charges may be added to the fees listed above if appropriate, as determined by the court charging the fee.
3. Pursuant to § 51.207(c)(4), TEX. GOV’T CODE, the following additional fees are set:
(a) motions not otherwise listed …………………………………………………………$10
(b) motion for rehearing or for en banc reconsideration ………………………………...$15
(c) exhibits tendered for oral argument ………………………………………………….$25
C. Before the Judicial Panel on Multi-District Litigation:
1. Pursuant to TEX. GOV’T CODE §51.005(c)(3) and §51.0051, and Rule of Judicial Administration 13.3(g), the following fees are set:
(a) motion to transfer to pretrial court under Rule of Judicial Administration 13.3(a) or appeal of an order of a pretrial court by motion for rehearing under Rule 13.5(e) ..................................................... $275
(b) any other motion or document filed under Rules of Judicial Administration 13......... $50
D. Nothing in this order shall be construed as prohibiting a clerk from contracting with an entity or organization to provide copies of documents, audio and video tapes, and other organizational services at a reasonable rate which may exceed the fees provided herein.
Adopted by order of August 15, 1997, eff. Sept. 1, 1997. Amended by orders of July 21, 1998, eff. Sept. 1, 1998; Sept. 10, 2003, eff. Sept. 10, 2003; Aug. 28, 2007, eff. Sept. 1, 2007; Aug. 16, 2013, eff. Sept. 1, 2013; Aug. 28, 2015, eff. Sept. 1, 2015.
Page 3 of 3 APPENDIX B
IN THE SUPREME COURT OF TEXAS
ORDER REGARDING DISPOSITION OF COURT PAPERS IN CIVIL CASES
ORDERED that:
A. Definitions. 1. Court records or records means: (a) the clerk’s record; (b) the reporter’s record; and (c) any other documents or items filed, or presented for filing and received in an appellate court in a particular case. 2. Appellate record means the clerk’s record and the reporter’s record and any supplements. B. In the Courts of Appeals. The following paragraphs govern disposing of court records by the courts of appeals: 1. Determination of permanent preservation. Before any court records are destroyed, the court of appeals must—under Section 51.205 of the Government Code and State Archives guidelines— determine whether the records should be permanently preserved. 2. Initial determination. Immediately after final disposition of an appeal or other proceeding, the panel that decided the case must determine whether the case’s records should be permanently preserved and must file with the records a statement declaring that the records should or should not be permanently preserved. 3. Later determination. After its initial determination, but before any court records are destroyed, the court of appeals may reexamine its initial determination under 2. and may change its designation. 4. Original papers and exhibits in appeals. Whatever the court determines concerning permanent preservation of a case’s records, any original documents or exhibits must, within 30 days after final disposition of an appeal or other proceeding, be returned to the trial court in accordance with any trial court order entered under Rules 34.5(f) and 34.6(g). The court of appeals may, but need not, copy those documents and exhibits before returning them to the trial court. The court of appeals may dispose of copies of nondocumentary exhibits after the case is final on appeal. 5. All other papers and exhibits. Subject to paragraph 4., the court of appeals must keep and preserve all records of a case (except duplicates) until they are ultimately disposed of under this rule. 6. Ultimate disposition. After the period prescribed by Section 51.204 of the Government Code or other applicable statute has expired, the court of appeals must: (a) destroy those records the court has determined need not be permanently preserved; and (b) turn over to the State Archives or other repository allowed by law those records the court has determined should be permanently preserved. C. In the Supreme Court. The following paragraphs govern disposing of court records by the Supreme Court: 1. If case reversed and remanded to court of appeals. If the Supreme Court grants review and remands the case to the court of appeals, the Supreme Court will return the appellate record to the court of appeals. The court of appeals will then dispose of the court records in accordance with subdivision B. The Supreme Court will keep and preserve all remaining items (except duplicates) until they are turned over to the State Archives as provided by law. 2. If case affirmed or reversed and remanded to trial court. If the Supreme Court grants review and either affirms the court of appeals or reverses and remands to the trial court, the Supreme Court will not return the appellate record but will keep and preserve all records of the case (except duplicates) until those records are turned over to the State Archives as provided by law. 3. In all other cases. In all other cases, the Supreme court will return the appellate record to the court of appeals and keep and preserve all remaining records of the case (except duplicates) until they are turned over to the State Archives as provided by law.
Page 2 of 2 APPENDIX C IN THE SUPREME COURT OF TEXAS IN THE COURT OF CRIMINAL APPEALS ORDER DIRECTING THE FORM OF THE APPELLATE RECORD
RULE 1. CLERK’S RECORD
1.1. Preparation of Electronic or Paper Clerk’s Record.
The trial court clerk must prepare and file the clerk’s record in accordance with Rules of Appellate Procedure 34.5 and 35. Even if more than one notice of appeal or request for inclusion of items is filed, the clerk should prepare only one consolidated record in a case. To prepare the clerk’s record, the trial court clerk must:
(a) gather the documents required by Rule of Appellate Procedure 34.5(a) and those requested by a party under Rule of Appellate Procedure 34.5(b);
(b) start each document on a new page;
(c) include the date of filing on each document;
(d) arrange the documents in ascending chronological order, by date of filing or occurrence;
(e) start the page numbering on the front cover of the first volume of the clerk’s record and continue to number all pages consecutively – including the front and back covers, tables of contents, certification page, and separator pages, if any – until the final page of the clerk’s record, without regard for the number of volumes in the clerk’s record, and place each page number at the bottom of each page;
(f) prepare, label, and certify the clerk’s record as required by this rule;
(g) as far as practicable, include the date of signing by the judge on each order and judgment; (h) include on the front cover of the first volume, and any subsequent volumes, of the clerk’s record, whether filed in paper or electronic form, the following information, in substantially the following form:
CLERK’S RECORD VOLUME ____ of ____ Trial Court Cause No. _______________________ In the ______ (District or County) Court of ___________ County, Texas, Honorable _______________, Judge Presiding ______________________________________________________________________________
____________________, Plaintiff(s) vs. ___________________, Defendant(s) ______________________________________________________________________________ Appealed to the (Supreme Court of Texas at Austin, Texas, or Court of Criminal Appeals of Texas at Austin, Texas, or Court of Appeals for the _____ District of Texas, at ________________, Texas). ______________________________________________________________________________ Attorney for Appellant(s): Name ________________________________________________________________________ Address ________________________________________________________________________ Telephone no.: ____________________________ Fax no.: __________________________________ E-mail address: ____________________________ SBOT no.: ________________________________ Attorney for: ______________________________, Appellant(s) ________________________________________
Name of clerk preparing the clerk’s record: ____________________________________
Page 2 of 6 (i) prepare and include after the front cover of the clerk’s record a detailed table of contents identifying each document in the entire record (including sealed documents), the date each document was filed, and, except for sealed documents, the page on which each document begins. The table of contents must be double-spaced and conform to the order in which documents appear in the clerk’s record, rather than in alphabetical order. If the clerk’s record consists of multiple volumes, the table of contents must indicate the page on which each volume begins. If the clerk’s record is filed in electronic form, the clerk must use bookmarks to link each document description in the table of contents, except descriptions of sealed documents, to the page on which each document begins; and
(j) conclude the clerk’s record with a certificate in substantially the following form:
The State of Texas ) County of _____________ ) I, ___________, Clerk of the ______ Court of _________ County, Texas do hereby certify that the documents contained in this record to which this certification is attached are all of the documents specified by Texas Rule of Appellate Procedure 34.5(a) and all other documents timely requested by a party to this proceeding under Texas Rule of Appellate Procedure 34.5(b).
GIVEN UNDER MY HAND AND SEAL at my office in _________, County, Texas this ___ day of _____________.
signature of clerk _______________________ name of clerk __________________________ title __________________________________
If the clerk’s record is filed in electronic form, the trial court clerk must include either a scanned image of the clerk’s signature or “/s/” and the clerk’s name typed in the space where the signature would otherwise appear.
1.2. Filing an Electronic Clerk’s Record.
Unless the clerk receives permission from the appellate court to file the record in paper form, the clerk must file the record electronically. When filing a clerk’s record in electronic form, the trial court clerk must:
Page 3 of 6 (a) file each computer file in text-searchable Portable Document Format (PDF);
(b) create electronic bookmarks to mark the first page of each document in the clerk’s record;
(c) limit the size of each computer file to 100 MB or less, if possible;
(d) directly convert, rather than scan, the record to PDF, if possible;
(e) comply with the Technology Standards set by the Judicial Committee on Information Technology;
(f) include the following elements in the computer file name, exemplified as CR (01 of 02).pdf:
(1) “CR”;
(2) the volume number, using at least two digits, with leading zeroes if needed; “of”; and the total number of volumes;
(3) a period; and
(4) “pdf”;
(g) file each sealed document separately from the remainder of the clerk’s record and include the word “sealed” in the computer file name;
(h) if filing a supplement to the clerk’s record, include the number of the supplement and “Supp”;
(i) submit each computer file to the Texas Appeals Management and E-filing System (TAMES) web portal using the instructions provided on the appellate court’s website; and
(j) not lock any document that is part of the record.
Page 4 of 6 1.3. Filing a Paper Clerk’s Record.
When filing a paper record with the appellate court, the trial court clerk must:
(a) bind the documents together in one or more volumes with a top bound, two-inch capacity, two-and-three-quarter-inch, center-to-center removable fastener and no other binding materials, like wax, ribbon, glue, staples, tape, etc.;
(b) include no more than 500 pages in each volume, or limit the thickness of each volume to a maximum of two inches;
(c) include only one-sided copies in the clerk’s record;
(d) number the first volume “1” and each succeeding volume sequentially;
(e) if practicable, make a legible copy of the documents on opaque, white, 8½ x 11 inch paper; and
(f) place each sealed document in a securely sealed, manila envelope that is not bound with the other documents in the clerk’s record.
1.4. Non-Conforming Records and Supplements.
In the event of a material violation of this rule in the preparation or filing of the clerk’s record, on motion of a party or on its own initiative, the appellate court may require the trial court clerk to amend the clerk’s record or to prepare a new clerk’s record in proper form – and provide it to any party who has previously made a copy of the original, defective clerk’s record – at the trial clerk’s expense. A supplement to a clerk’s record must also be prepared in conformity with this rule.
RULE 2. ELECTRONIC REPORTER’S RECORD.
(a) The court reporter or court recorder must prepare and file the reporter’s record in accordance with Rules of Appellate Procedure 34.6 and 35 and the Uniform Format Manual for Texas Reporters’ Records, and the court’s local rules. Even if more than one notice of appeal or request for preparation of the record is filed, the court reporter or court recorder should prepare only one consolidated record in the case.
Page 5 of 6 (b) If proceedings were recorded stenographically, the court reporter or recorder must file the reporter’s record in an electronic format via the Texas Appeals Management and E-filing System (TAMES) web portal and in accordance with Section 8 of the Uniform Format Manual for Texas Reporters’ Records, the court’s local rules, and any guidelines posted on the appellate court’s website.
(c) If the record is filed in electronic format, the court reporter or recorder must include either a scanned image of any required signature or “/s/” and name typed in the space where the signature would otherwise appear.
(d) A court reporter or recorder must not lock any document that is part of the record.
(e) In exhibit volumes, the court reporter or recorder must create bookmarks to mark the first page of each exhibit document.
(f) In the event of a material violation of this rule in the preparation of a reporter’s record, on motion of a party or on the court’s own initiative, the appellate court may require the court reporter or court recorder to amend the reporter’s record or to prepare a new reporter’s record in proper form – and provide it to any party who has previously made a copy of the original, defective reporter’s record – at the reporter’s or recorder’s expense. A court reporter who fails to comply with the requirements of the Uniform Format Manual for Texas Reporters’ Records is also subject to discipline by the Court Reporters Certification Board.
Amended April 8, 1999, effective May 1, 1999; Amended December 13, 2013, effective January 1, 2014.
Page 6 of 6 APPENDIX D Appendix: Certification of Defendant’s Right to Appeal
No. __________________
The State of Texas In the ___________ Court
v. of
_____________________________ ________________ County, Texas Defendant
TRIAL COURT’S CERTIFICATION OF DEFENDANT’S RIGHT OF APPEAL*
I, judge of the trial court, certify this criminal case:
[] is not a plea-bargain case, and the defendant has the right of appeal. [ or ] [] is a plea-bargain case, but matters were raised by written motion filed and ruled on before trial and not withdrawn or waived, and the defendant has the right of appeals. [ or ] [] is a plea-bargain case, but the trial court has given permission to appeal, and the defendant has the right of appeal. [ or ] [] is a plea-bargain case, and the defendant has NO right of appeal. [ or ] [] the defendant has waived the right of appeal.
_______________________________ _____________________ Judge Date Signed
I have received a copy of this certification. I have also been informed of my rights concerning any appeal of this criminal case, including any right to file a pro se petition for discretionary review pursuant to Rule 68 of the Texas Rules of Appellate Procedure. I have been admonished that my attorney must mail a copy of the court of appeals’s judgment and opinion to my last known address and that I have only 30 days in which to file a pro se petition for discretionary review in the court of appeals. TEX. R. APP. P. 68.2 I acknowledge that, if I wish to appeal this case and if I am entitled to do so, it is my duty to inform my appellate attorney, by written communication, of any change in the address at which I am currently living or any change in my current prison unit. I understand that, because of appellate deadlines, if I fail to timely inform my appellate attorney of any change in my address, I may lose the opportunity to file a pro se petition for discretionary review.
__________________________ __________________________ Defendant Defendant’s Counsel Mailing address: State Bar of Texas ID number Telephone number: Mailing address: Fax number (if any): Telephone number: Fax number (if any):
• “A defendant in a criminal case has the right of appeal under these rules. The trial court shall enter a certification of the defendant’s right to appeal in every case in which it enters a judgment of guilt or other appealable order. In a plea bargain case -- that is, a case in which a defendant’s plea was guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant -- a defendant may appeal only: (A) those matters that were raised by written motion filed and ruled on before trial, or (B) after getting the trial court’s permission to appeal.” TEXAS RULE OF APPELLATE PROCEDURE 25.2(a)(2).
Amended May 2, 2007 and Aug. 20, 2007, elf. Sept. 1, 2001. APPENDIX E COURT OF CRIMINAL APPEALS OF TEXAS APPLICATION FOR A WRIT OF HABEAS CORPUS SEEKING RELIEF FROM FINAL FELONY CONVICTION UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07 INSTRUCTIONS
1. You must use the complete form, which begins on the following page, to file an application for a writ of habeas corpus seeking relief from a final felony conviction under Article 11.07 of the Code of Criminal Procedure. (This form is not for death-penalty cases, probated sentences which have not been revoked, or misdemeanors.) 2. The district clerk of the county in which you were convicted will make this form available to you, on request, without charge. 3. You must file the entire writ application form, including those sections that do not apply to you. If any pages are missing from the form, or if the questions have been renumbered or omitted, your entire application may be dismissed as non-compliant. 4. You must make a separate application on a separate form for each judgment of conviction you seek relief from. Even if the judgments were entered in the same court on the same day, you must make a separate application for each one. 5. Answer every item that applies to you on the form. Do not attach any additional pages for any item. 6. You must include all grounds for relief on the application form as provided by the instructions under item 17. You must also briefly summarize the facts of your claim on the application form as provided by the instructions under item 17. Each ground shall begin on a new page, and the recitation of the facts supporting the ground shall be no longer than the two pages provided for the claim in the form. 7. Legal citations and arguments may be made in a separate memorandum that complies with Texas Rules of Appellate Procedure 73 and does not exceed 15,000 words if computer-generated or 50 pages if not. 8. You must verify the application by signing either the Oath Before Notary Public or the Inmate’s Declaration, which are at the end of this form on pages 11 and 12. You may be prosecuted and convicted for aggravated perjury if you make any false statement of a material fact in this application. 9. When the application is fully completed, mail the original to the district clerk of the county of conviction. Keep a copy of the application for your records. 10. You must notify the district clerk of the county of conviction of any change in address after you have filed your application. Case No. ________________________________________ (The Clerk of the convicting court will fill this line in.)
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
APPLICATION FOR A WRIT OF HABEAS CORPUS SEEKING RELIEF FROM FINAL FELONY CONVICTION UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07
NAME:
DATE OF BIRTH:
PLACE OF CONFINEMENT:
TDCJ-CID NUMBER: ____________________ SID NUMBER: __________________
(1) This application concerns (check all that apply):
□ a conviction □ parole
□ a sentence □ mandatory supervision
□ time credit □ out-of-time appeal or petition for discretionary review
(2) What district court entered the judgment of the conviction you want relief from? (Include the court number and county.)
(3) What was the case number in the trial court?
(4) What was the name of the trial judge?
2 (5) Were you represented by counsel? If yes, provide the attorney's name:
(6) What was the date that the judgment was entered?
(7) For what offense were you convicted and what was the sentence?
(8) If you were sentenced on more than one count of an indictment in the same court at the same time, what counts were you convicted of and what was the sentence in each count?
(9) What was the plea you entered? (Check one.)
□ guilty-open plea □ guilty-plea bargain □ not guilty □ nolo contendere/no contest
If you entered different pleas to counts in a multi-count indictment, please explain:
(10) What kind of trial did you have?
□ no jury □ jury for guilt and punishment
□ jury for guilt, judge for punishment
(11) Did you testify at trial? If yes, at what phase of the trial did you testify?
(12) Did you appeal from the judgment of conviction?
□ yes □ no If you did appeal, answer the following questions:
(A) What court of appeals did you appeal to?
(B) What was the case number?
(C) Were you represented by counsel on appeal? If yes, provide the attorney's name:
(D) What was the decision and the date of the decision?
(13) Did you file a petition for discretionary review in the Court of Criminal Appeals?
□ yes □ no
If you did file a petition for discretionary review, answer the following questions:
(A) What was the case number?
(B) What was the decision and the date of the decision?
(14) Have you previously filed an application for a writ of habeas corpus under Article 11.07 of the Texas Code of Criminal Procedure challenging this conviction?
If you answered yes, answer the following questions:
(A) What was the Court of Criminal Appeals’ writ number?
(C) Please identify the reason that the current claims were not presented and could not have been presented on your previous application. (15) Do you currently have any petition or appeal pending in any other state or federal court?
If you answered yes, please provide the name of the court and the case number:
(16) If you are presenting a claim for time credit, have you exhausted your administrative remedies by presenting your claim to the time credit resolution system of the Texas Department of Criminal Justice? (This requirement applies to any final felony conviction, including state jail felonies)
(A) What date did you present the claim?
(B) Did you receive a decision and, if yes, what was the date of the decision?
If you answered no, please explain why you have not submitted your claim:
(17) Beginning on page 6, state concisely every legal ground for your claim that you are being unlawfully restrained, and then briefly summarize the facts supporting each ground. You must present each ground on the form application and a brief summary of the facts. If your grounds and brief summary of the facts have not been presented on the form application, the Court will not consider your grounds.
If you have more than four grounds, use pages 14 and 15 of the form, which you may copy as many times a needed to give you a separate page for each ground, with each ground numbered in sequence. The recitation of the facts supporting each ground must be no longer than the two pages provided for the ground in the form.
You may include with the form a memorandum of the law if you want to present legal authorities, but the court will not consider grounds for relief set out in a memorandum of law that were not raised on the form. The citations and argument must be in a memorandum that complies with Texas Rules of Appellate Procedure 73 and does not exceed 15,000 words if computer-generated or 50 pages if not. If you are challenging the validity of your conviction, please include a summary of the facts pertaining to your offense and trial in your memorandum. GROUND ONE:
FACTS SUPPORTING GROUND ONE: GROUND TWO:
FACTS SUPPORTING GROUND TWO: GROUND THREE:
FACTS SUPPORTING GROUND THREE: GROUND FOUR:
FACTS SUPPORTING GROUND FOUR: GROUND:
FACTS SUPPORTING GROUND: WHEREFORE, APPLICANT PRAYS THAT THE COURT GRANT APPLICANT RELIEF TO WHICH HE MAY BE ENTITLED IN THIS PROCEEDING.
VERIFICATION
This application must be verified or it will be dismissed for non-compliance. For verification purposes, an applicant is a person filing the application on his or her own behalf. A petitioner is a person filing the application on behalf of an applicant, for example, an applicant’s attorney. An inmate is a person who is in custody.
The inmate applicant must sign either the “Oath Before a Notary Public” before a notary public or the “Inmate’s Declaration” without a notary public. If the inmate is represented by a licensed attorney, the attorney may sign the “Oath Before a Notary Public” as petitioner and then complete “Petitioner’s Information.” A non-inmate applicant must sign the “Oath Before a Notary Public” before a notary public unless he is represented by a licensed attorney, in which case the attorney may sign the verification as petitioner.
A non-inmate non-attorney petitioner must sign the “Oath Before a Notary Public” before a notary public and must also complete “Petitioner’s Information.” An inmate petitioner must sign either the “Oath Before a Notary Public” before a notary public or the “Inmate’s Declaration” without a notary public and must also complete the appropriate “Petitioner’s Information.”
OATH BEFORE A NOTARY PUBLIC
STATE OF TEXAS
COUNTY OF _______________
________________________________, being duly sworn, under oath says: “I am the applicant /
petitioner (circle one) in this action and know the contents of the above application for a writ of
habeas corpus and, according to my belief, the facts stated in the application are true.”
_________________________________ Signature of Applicant / Petitioner (circle one)
SUBSCRIBED AND SWORN TO BEFORE ME THIS _____ DAY OF __________, 20___. _________________________________ Signature of Notary Public
PETITIONER’S INFORMATION Petitioner’s printed name:__________________________________
State bar number, if applicable: _____________________________
Address: _______________________________________________
_______________________________________________
Telephone: _____________________________________________
Fax: __________________________________________________
INMATE’S DECLARATION
I, _______________________________, am the applicant / petitioner (circle one) and being
presently incarcerated in _______________________________, declare under penalty of perjury
that, according to my belief, the facts stated in the above application are true and correct.
Signed on ____________________, 20_____.
_______________________________________ Signature of Applicant / Petitioner (circle one)
PETITIONER’S INFORMATION
Petitioner’s printed name:__________________________________
Fax: _______________________________________________ Signed on ____________________, 20_____.
_______________________________________ Signature of Petitioner Amended March 5, 2007, effective March 5, 2007; Amended December 13, 2013, effective January 1, 2014. APPENDIX F IN THE COURT OF CRIMINAL APPEALS OF TEXAS ORDER ADOPTING SUMMARY SHEET FOR POSTCONVICTION APPLICATIONS FOR WRIT OF HABEAS CORPUS
Application for Writ of Habeas Corpus Ex Parte__________________ from_______________________County (Name of Applicant) ____________________________Court
TRIAL COURT WRIT NO.__________________
CLERK’S SUMMARY SHEET APPLICANT’S NAME:______________________________________
(As reflected in judgment)
OFFENSE:________________________________________________ (As reflected in judgment)
CAUSE NO:______________________________________________ (As reflected in judgment)
PLEA:______GUILTY______NOT GUILTY
SENTENCE:_________________DATE:_______________________ (Terms of years reflected in judgment)
TRIAL DATE:___________________________
JUDGE’S NAME:________________________________________ (Judge presiding at trial)
APPEAL NO:___________________________________________ (If applicable)
CITATION TO OPINION:______S.W.3d______ (If applicable)
HEARING HELD:______YES______NO (Pertaining to the application for writ of habeas corpus) FINDINGS & CONCLUSIONS FILED:______YES______NO (Pertaining to the application for writ of habeas corpus)
RECOMMENDATION: _____GRANT______DENY_____NONE (Trial court’s recommendation regarding application for writ of habeas corpus)
JUDGE’S NAME: (Judge presiding over habeas corpus proceeding)
NAME OF COUNSEL IF APPLICANT IS REPRESENTED:_______________________ TEXAS RULES OF EVIDENCE Effective June 14, 2016
ARTICLE I. GENERAL PROVISIONS Rule 101. Title, Scope, and Applicability of the Rules; Definitions Rule 102. Purpose Rule 103. Rulings on Evidence Rule 104. Preliminary Questions Rule 105. Evidence That Is Not Admissible Against Other Parties or for Other Purposes Rule 106. Remainder of or Related Writings or Recorded Statements Rule 107. Rule of Optional Completeness
ARTICLE II. JUDICIAL NOTICE Rule 201. Judicial Notice of Adjudicative Facts Rule 202. Judicial Notice of Other States’ Law Rule 203. Determining Foreign Law Rule 204. Judicial Notice of Texas Municipal and County Ordinances, Texas Register Contents, and Published Agency Rules
ARTICLE III. PRESUMPTIONS Rule 301. [No Rules Adopted at This Time]
ARTICLE IV. RELEVANCE AND ITS LIMITS Rule 401. Test for Relevant Evidence Rule 402. General Admissibility of Relevant Evidence Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, or Other Reasons Rule 404. Character Evidence; Crimes or Other Acts Rule 405. Methods of Proving Character Rule 406. Habit; Routine Practice Rule 407. Subsequent Remedial Measures; Notification of Defect Rule 408. Compromise Offers and Negotiations Rule 409. Offers to Pay Medical and Similar Expenses Rule 410. Pleas, Plea Discussions, and Related Statements Rule 411. Liability Insurance Rule 412. Evidence of Previous Sexual Conduct in Criminal Cases
ARTICLE V. PRIVILEGES Rule 501. Privileges in General Rule 502. Required Reports Privileged By Statute Rule 503. Lawyer–Client Privilege Rule 504. Spousal Privileges Rule 505. Privilege For Communications to a Clergy Member Rule 506. Political Vote Privilege Rule 507. Trade Secrets Privilege Rule 508. Informer’s Identity Privilege Rule 509. Physician–Patient Privilege Rule 510. Mental Health Information Privilege in Civil Cases Rule 511. Waiver by Voluntary Disclosure Rule 512. Privileged Matter Disclosed Under Compulsion or Without Opportunity to Claim Privilege Rule 513. Comment On or Inference From a Privilege Claim; Instruction
ARTICLE VI. WITNESSES Rule 601. Competency to Testify in General; “Dead Man’s Rule” Rule 602. Need for Personal Knowledge Rule 603. Oath or Affirmation to Testify Truthfully Rule 604. Interpreter Rule 605. Judge’s Competency as a Witness Rule 606. Juror’s Competency as a Witness Rule 607. Who May Impeach a Witness Rule 608. A Witness’s Character for Truthfulness or Untruthfulness Rule 609. Impeachment by Evidence of a Criminal Conviction Rule 610. Religious Beliefs or Opinions Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence Rule 612. Writing Used to Refresh a Witness’s Memory Rule 613. Witness’s Prior Statement and Bias or Interest Rule 614. Excluding Witnesses Rule 615. Producing a Witness’s Statement in Criminal Cases
ARTICLE VII. OPINIONS AND EXPERT TESTIMONY Rule 701. Opinion Testimony by Lay Witnesses Rule 702. Testimony by Expert Witnesses Rule 703. Bases of an Expert’s Opinion Testimony Rule 704. Opinion on an Ultimate Issue Rule 705. Disclosing the Underlying Facts or Data and Examining an Expert About Them Rule 706. Audit in Civil Cases
ARTICLE VIII. HEARSAY Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay Rule 802. The Rule Against Hearsay Rule 803. Exceptions to the Rule Against Hearsay—Regardless of Whether the Declarant Is Available as a Witness Rule 804. Exceptions to the Rule Against Hearsay—When the Declarant Is Unavailable as a Witness Rule 805. Hearsay Within Hearsay Rule 806. Attacking and Supporting the Declarant’s Credibility
ARTICLE IX. AUTHENTICATION AND IDENTIFICATION Rule 901. Authenticating or Identifying Evidence Rule 902. Evidence That Is Self-Authenticating Rule 903. Subscribing Witness’s Testimony
2 ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS Rule 1001. Definitions That Apply to This Article Rule 1002. Requirement of the Original Rule 1003. Admissibility of Duplicates Rule 1004. Admissibility of Other Evidence of Content Rule 1005. Copies of Public Records to Prove Content Rule 1006. Summaries to Prove Content Rule 1007. Testimony or Statement of a Party to Prove Content Rule 1008. Functions of the Court and Jury Rule 1009. Translating a Foreign Language Document
3 ARTICLE I. GENERAL PROVISIONS
Rule 101. Title, Scope, and Applicability of the Rules; Definitions
(a) Title. These rules may be cited as the Texas Rules of Evidence.
(b) Scope. These rules apply to proceedings in Texas courts except as otherwise provided in subdivisions (d)-(f).
(c) Rules on Privilege. The rules on privilege apply to all stages of a case or proceeding.
(d) Exception for Constitutional or Statutory Provisions or Other Rules. Despite these rules, a court must admit or exclude evidence if required to do so by the United States or Texas Constitution, a federal or Texas statute, or a rule prescribed by the United States or Texas Supreme Court or the Texas Court of Criminal Appeals. If possible, a court should resolve by reasonable construction any inconsistency between these rules and applicable constitutional or statutory provisions or other rules.
(e) Exceptions. These rules—except for those on privilege—do not apply to:
(1) the court’s determination, under Rule 104(a), on a preliminary question of fact governing admissibility;
(2) grand jury proceedings; and
(3) the following miscellaneous proceedings:
(A) an application for habeas corpus in extradition, rendition, or interstate detainer proceedings;
(B) an inquiry by the court under Code of Criminal Procedure article 46B.004 to determine whether evidence exists that would support a finding that the defendant may be incompetent to stand trial;
(C) bail proceedings other than hearings to deny, revoke, or increase bail;
(D) hearings on justification for pretrial detention not involving bail;
(E) proceedings to issue a search or arrest warrant; and
(F) direct contempt determination proceedings.
(f) Exception for Justice Court Cases. These rules do not apply to justice court cases except as authorized by Texas Rule of Civil Procedure 500.3.
4 (g) Exception for Military Justice Hearings. The Texas Code of Military Justice, Tex. Gov’t Code §§ 432.001-432.195, governs the admissibility of evidence in hearings held under that Code.
(h) Definitions. In these rules:
(1) “civil case” means a civil action or proceeding;
(2) “criminal case” means a criminal action or proceeding, including an examining trial;
(3) “public office” includes a public agency;
(4) “record” includes a memorandum, report, or data compilation;
(5) a “rule prescribed by the United States or Texas Supreme Court or the Texas Court of Criminal Appeals” means a rule adopted by any of those courts under statutory authority;
(6) “unsworn declaration” means an unsworn declaration made in accordance with Tex. Civ. Prac. & Rem. Code § 132.001; and
(7) a reference to any kind of written material or any other medium includes electronically stored information.
Comment to 2015 Restyling: The reference to “hierarchical governance” in former Rule 101(c) has been deleted as unnecessary. The textual limitation of former Rule 101(c) to criminal cases has been eliminated. Courts in civil cases must also admit or exclude evidence when required to do so by constitutional or statutory provisions or other rules that take precedence over these rules. Likewise, the title to former Rule 101(d) has been changed to more accurately indicate the purpose and scope of the subdivision.
Rule 102. Purpose
These rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.
Rule 103. Rulings on Evidence
(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:
(1) if the ruling admits evidence, a party, on the record:
5 (A) timely objects or moves to strike; and
(B) states the specific ground, unless it was apparent from the context; or
(2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.
(b) Not Needing to Renew an Objection. When the court hears a party’s objections outside the presence of the jury and rules that evidence is admissible, a party need not renew an objection to preserve a claim of error for appeal.
(c) Court’s Statement About the Ruling; Directing an Offer of Proof. The court must allow a party to make an offer of proof outside the jury’s presence as soon as practicable—and before the court reads its charge to the jury. The court may make any statement about the character or form of the evidence, the objection made, and the ruling. At a party’s request, the court must direct that an offer of proof be made in question-and- answer form. Or the court may do so on its own.
(d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means.
(e) Taking Notice of Fundamental Error in Criminal Cases. In criminal cases, a court may take notice of a fundamental error affecting a substantial right, even if the claim of error was not properly preserved.
Rule 104. Preliminary Questions
(a) In General. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.
(b) Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.
(c) Conducting a Hearing So That the Jury Cannot Hear It. The court must conduct any hearing on a preliminary question so that the jury cannot hear it if:
(1) the hearing involves the admissibility of a confession in a criminal case;
(2) a defendant in a criminal case is a witness and so requests; or
(3) justice so requires.
6 (d) Cross-Examining a Defendant in a Criminal Case. By testifying outside the jury’s hearing on a preliminary question, a defendant in a criminal case does not become subject to cross-examination on other issues in the case.
(e) Evidence Relevant to Weight and Credibility. This rule does not limit a party’s right to introduce before the jury evidence that is relevant to the weight or credibility of other evidence.
Rule 105. Evidence That Is Not Admissible Against Other Parties or for Other Purposes
(a) Limiting Admitted Evidence. If the court admits evidence that is admissible against a party or for a purpose—but not against another party or for another purpose—the court, on request, must restrict the evidence to its proper scope and instruct the jury accordingly.
(b) Preserving a Claim of Error.
(1) Court Admits the Evidence Without Restriction. A party may claim error in a ruling to admit evidence that is admissible against a party or for a purpose—but not against another party or for another purpose—only if the party requests the court to restrict the evidence to its proper scope and instruct the jury accordingly.
(2) Court Excludes the Evidence. A party may claim error in a ruling to exclude evidence that is admissible against a party or for a purpose—but not against another party or for another purpose—only if the party limits its offer to the party against whom or the purpose for which the evidence is admissible.
Rule 106. Remainder of or Related Writings or Recorded Statements
If a party introduces all or part of a writing or recorded statement, an adverse party may introduce, at that time, any other part—or any other writing or recorded statement—that in fairness ought to be considered at the same time. “Writing or recorded statement” includes depositions.
Rule 107. Rule of Optional Completeness
If a party introduces part of an act, declaration, conversation, writing, or recorded statement, an adverse party may inquire into any other part on the same subject. An adverse party may also introduce any other act, declaration, conversation, writing, or recorded statement that is necessary to explain or allow the trier of fact to fully understand the part offered by the opponent. “Writing or recorded statement” includes a deposition.
7 ARTICLE II. JUDICIAL NOTICE
Rule 201. Judicial Notice of Adjudicative Facts
(a) Scope. This rule governs judicial notice of an adjudicative fact only, not a legislative fact.
(b) Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it:
(1) is generally known within the trial court’s territorial jurisdiction; or
(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.
(c) Taking Notice. The court:
(1) may take judicial notice on its own; or
(2) must take judicial notice if a party requests it and the court is supplied with the necessary information.
(d) Timing. The court may take judicial notice at any stage of the proceeding.
(e) Opportunity to Be Heard. On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard.
(f) Instructing the Jury. In a civil case, the court must instruct the jury to accept the noticed fact as conclusive. In a criminal case, the court must instruct the jury that it may or may not accept the noticed fact as conclusive.
Rule 202. Judicial Notice of Other States’ Law
(a) Scope. This rule governs judicial notice of another state’s, territory’s, or federal jurisdiction’s:
• Constitution; • public statutes; • rules; • regulations; • ordinances; • court decisions; and
8 • common law.
(b) Taking Notice. The court:
(2) must take judicial notice if a party requests it and the court is supplied with the necessary information.
(c) Notice and Opportunity to Be Heard.
(1) Notice. The court may require a party requesting judicial notice to notify all other parties of the request so they may respond to it.
(2) Opportunity to Be Heard. On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the matter to be noticed. If the court takes judicial notice before a party has been notified, the party, on request, is still entitled to be heard.
(d) Timing. The court may take judicial notice at any stage of the proceeding.
(e) Determination and Review. The court—not the jury—must determine the law of another state, territory, or federal jurisdiction. The court’s determination must be treated as a ruling on a question of law.
Rule 203. Determining Foreign Law
(a) Raising a Foreign Law Issue. A party who intends to raise an issue about a foreign country’s law must:
(1) give reasonable notice by a pleading or other writing; and
(2) at least 30 days before trial, supply all parties a copy of any written materials or sources the party intends to use to prove the foreign law.
(b) Translations. If the materials or sources were originally written in a language other than English, the party intending to rely on them must, at least 30 days before trial, supply all parties both a copy of the foreign language text and an English translation.
(c) Materials the Court May Consider; Notice. In determining foreign law, the court may consider any material or source, whether or not admissible. If the court considers any material or source not submitted by a party, it must give all parties notice and a reasonable opportunity to comment and submit additional materials.
9 (d) Determination and Review. The court—not the jury—must determine foreign law. The court’s determination must be treated as a ruling on a question of law.
Rule 204. Judicial Notice of Texas Municipal and County Ordinances, Texas Register Contents, and Published Agency Rules
(a) Scope. This rule governs judicial notice of Texas municipal and county ordinances, the contents of the Texas Register, and agency rules published in the Texas Administrative Code.
(2) must take judicial notice if a party requests it and the court is supplied with the necessary information.
(1) Notice. The court may require a party requesting judicial notice to notify all other parties of the request so they may respond to it.
(2) Opportunity to Be Heard. On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the matter to be noticed. If the court takes judicial notice before a party has been notified, the party, on request, is still entitled to be heard.
(d) Determination and Review. The court—not the jury—must determine municipal and county ordinances, the contents of the Texas Register, and published agency rules. The court’s determination must be treated as a ruling on a question of law.
ARTICLE III. PRESUMPTIONS
[No rules adopted at this time.]
ARTICLE IV. RELEVANCE AND ITS LIMITS
Rule 401. Test for Relevant Evidence
Evidence is relevant if:
10 (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action.
Rule 402. General Admissibility of Relevant Evidence
Relevant evidence is admissible unless any of the following provides otherwise:
• the United States or Texas Constitution; • a statute; • these rules; or • other rules prescribed under statutory authority.
Irrelevant evidence is not admissible.
Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, or Other Reasons
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.
Rule 404. Character Evidence; Crimes or Other Acts
(a) Character Evidence.
(1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.
(2) Exceptions for an Accused.
(A) In a criminal case, a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it.
(B) In a civil case, a party accused of conduct involving moral turpitude may offer evidence of the party’s pertinent trait, and if the evidence is admitted, the accusing party may offer evidence to rebut it.
(3) Exceptions for a Victim.
11 (A) In a criminal case, subject to the limitations in Rule 412, a defendant may offer evidence of a victim’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it.
(B) In a homicide case, the prosecutor may offer evidence of the victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.
(C) In a civil case, a party accused of assaultive conduct may offer evidence of the victim’s trait of violence to prove self-defense, and if the evidence is admitted, the accusing party may offer evidence of the victim’s trait of peacefulness.
(4) Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609.
(5) Definition of “Victim.” In this rule, “victim” includes an alleged victim.
(b) Crimes, Wrongs, or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.
(2) Permitted Uses; Notice in Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On timely request by a defendant in a criminal case, the prosecutor must provide reasonable notice before trial that the prosecution intends to introduce such evidence—other than that arising in the same transaction—in its case-in-chief.
Rule 405. Methods of Proving Character
(a) By Reputation or Opinion.
(1) In General. When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion. On cross-examination of the character witness, inquiry may be made into relevant specific instances of the person’s conduct.
(2) Accused’s Character in a Criminal Case. In the guilt stage of a criminal case, a witness may testify to the defendant’s character or character trait only if, before the day of the offense, the witness was familiar with the defendant’s reputation or the facts or information that form the basis of the witness’s opinion.
12 (b) By Specific Instances of Conduct. When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.
Rule 406. Habit; Routine Practice
Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.
Rule 407. Subsequent Remedial Measures; Notification of Defect
(a) Subsequent Remedial Measures. When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:
• negligence; • culpable conduct; • a defect in a product or its design; or • a need for a warning or instruction.
But the court may admit this evidence for another purpose, such as impeachment or—if disputed—proving ownership, control, or the feasibility of precautionary measures.
(b) Notification of Defect. A manufacturer’s written notification to a purchaser of a defect in one of its products is admissible against the manufacturer to prove the defect.
Comment to 2015 Restyling: Rule 407 previously provided that evidence was not excluded if offered for a purpose not explicitly prohibited by the Rule. To improve the language of the Rule, it now provides that the court may admit evidence if offered for a permissible purpose. There is no intent to change the process for admitting evidence covered by the Rule. It remains the case that if offered for an impermissible purpose, it must be excluded, and if offered for a purpose not barred by the Rule, its admissibility remains governed by the general principles of Rules 402, 403, 801, etc.
Rule 408. Compromise Offers and Negotiations
(a) Prohibited Uses. Evidence of the following is not admissible either to prove or disprove the validity or amount of a disputed claim:
13 (1) furnishing, promising, or offering—or accepting, promising to accept, or offering to accept—a valuable consideration in compromising or attempting to compromise the claim; and
(2) conduct or statements made during compromise negotiations about the claim.
(b) Permissible Uses. The court may admit this evidence for another purpose, such as proving a party’s or witness’s bias, prejudice, or interest, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
Comment to 2015 Restyling: Rule 408 previously provided that evidence was not excluded if offered for a purpose not explicitly prohibited by the Rule. To improve the language of the Rule, it now provides that the court may admit evidence if offered for a permissible purpose. There is no intent to change the process for admitting evidence covered by the Rule. It remains the case that if offered for an impermissible purpose, it must be excluded, and if offered for a purpose not barred by the Rule, its admissibility remains governed by the general principles of Rules 402, 403, 801, etc.
The reference to “liability” has been deleted on the ground that the deletion makes the Rule flow better and easier to read, and because “liability” is covered by the broader term “validity.” Courts have not made substantive decisions on the basis of any distinction between validity and liability. No change in current practice or in the coverage of the Rule is intended.
Finally, the sentence of the Rule referring to evidence “otherwise discoverable” has been deleted as superfluous. The intent of the sentence was to prevent a party from trying to immunize admissible information, such as a pre-existing document, through the pretense of disclosing it during compromise negotiations. But even without the sentence, the Rule cannot be read to protect pre-existing information simply because it was presented to the adversary in compromise negotiations.
Rule 409. Offers to Pay Medical and Similar Expenses
Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.
Rule 410. Pleas, Plea Discussions, and Related Statements
(a) Prohibited Uses in Civil Cases. In a civil case, evidence of the following is not admissible against the defendant who made the plea or was a participant in the plea discussions:
(1) a guilty plea that was later withdrawn;
(2) a nolo contendere plea;
14 (3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or
(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.
(b) Prohibited Uses in Criminal Cases. In a criminal case, evidence of the following is not admissible against the defendant who made the plea or was a participant in the plea discussions:
(2) a nolo contendere plea that was later withdrawn;
(3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or
(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty or nolo contendere plea or they resulted in a later-withdrawn guilty or nolo contendere plea.
(c) Exception. In a civil case, the court may admit a statement described in paragraph (a)(3) or (4) and in a criminal case, the court may admit a statement described in paragraph (b)(3) or (4), when another statement made during the same plea or plea discussions has been introduced and in fairness the statements ought to be considered together.
Rule 411. Liability Insurance
Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or, if disputed, proving agency, ownership, or control.
Rule 412. Evidence of Previous Sexual Conduct in Criminal Cases
(a) In General. The following evidence is not admissible in a prosecution for sexual assault, aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault:
(1) reputation or opinion evidence of a victim’s past sexual behavior; or
(2) specific instances of a victim’s past sexual behavior.
15 (b) Exceptions for Specific Instances. Evidence of specific instances of a victim’s past sexual behavior is admissible if:
(1) the court admits the evidence in accordance with subdivisions (c) and (d);
(2) the evidence:
(A) is necessary to rebut or explain scientific or medical evidence offered by the prosecutor;
(B) concerns past sexual behavior with the defendant and is offered by the defendant to prove consent;
(C) relates to the victim’s motive or bias;
(D) is admissible under Rule 609; or
(E) is constitutionally required to be admitted; and
(3) the probative value of the evidence outweighs the danger of unfair prejudice.
(c) Procedure for Offering Evidence. Before offering any evidence of the victim’s past sexual behavior, the defendant must inform the court outside the jury’s presence. The court must then conduct an in camera hearing, recorded by a court reporter, and determine whether the proposed evidence is admissible. The defendant may not refer to any evidence ruled inadmissible without first requesting and gaining the court’s approval outside the jury’s presence.
(d) Record Sealed. The court must preserve the record of the in camera hearing, under seal, as part of the record.
(e) Definition of “Victim.” In this rule, “victim” includes an alleged victim.
ARTICLE V. PRIVILEGES
Rule 501. Privileges in General
Unless a Constitution, a statute, or these or other rules prescribed under statutory authority provide otherwise, no person has a privilege to:
(a) refuse to be a witness;
(b) refuse to disclose any matter;
16 (c) refuse to produce any object or writing; or
(d) prevent another from being a witness, disclosing any matter, or producing any object or writing.
Rule 502. Required Reports Privileged By Statute
(a) In General. If a law requiring a return or report to be made so provides:
(1) a person, corporation, association, or other organization or entity—whether public or private—that makes the required return or report has a privilege to refuse to disclose it and to prevent any other person from disclosing it; and
(2) a public officer or agency to whom the return or report must be made has a privilege to refuse to disclose it.
(b) Exceptions. This privilege does not apply in an action involving perjury, false statements, fraud in the return or report, or other failure to comply with the law in question.
Rule 503. Lawyer–Client Privilege
(a) Definitions. In this rule:
(1) A “client” is a person, public officer, or corporation, association, or other organization or entity—whether public or private—that:
(A) is rendered professional legal services by a lawyer; or
(B) consults a lawyer with a view to obtaining professional legal services from the lawyer.
(2) A “client’s representative” is:
(A) a person who has authority to obtain professional legal services for the client or to act for the client on the legal advice rendered; or
(B) any other person who, to facilitate the rendition of professional legal services to the client, makes or receives a confidential communication while acting in the scope of employment for the client.
(3) A “lawyer” is a person authorized, or who the client reasonably believes is authorized, to practice law in any state or nation.
17 (4) A “lawyer’s representative” is:
(A) one employed by the lawyer to assist in the rendition of professional legal services; or
(B) an accountant who is reasonably necessary for the lawyer’s rendition of professional legal services.
(5) A communication is “confidential” if not intended to be disclosed to third persons other than those:
(A) to whom disclosure is made to further the rendition of professional legal services to the client; or
(B) reasonably necessary to transmit the communication.
(b) Rules of Privilege.
(1) General Rule. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made to facilitate the rendition of professional legal services to the client:
(A) between the client or the client’s representative and the client’s lawyer or the lawyer’s representative;
(B) between the client’s lawyer and the lawyer’s representative;
(C) by the client, the client’s representative, the client’s lawyer, or the lawyer’s representative to a lawyer representing another party in a pending action or that lawyer’s representative, if the communications concern a matter of common interest in the pending action;
(D) between the client’s representatives or between the client and the client’s representative; or
(E) among lawyers and their representatives representing the same client.
(2) Special Rule in a Criminal Case. In a criminal case, a client has a privilege to prevent a lawyer or lawyer’s representative from disclosing any other fact that came to the knowledge of the lawyer or the lawyer’s representative by reason of the attorney–client relationship.
(c) Who May Claim. The privilege may be claimed by:
(1) the client;
18 (2) the client’s guardian or conservator;
(3) a deceased client’s personal representative; or
(4) the successor, trustee, or similar representative of a corporation, association, or other organization or entity—whether or not in existence.
The person who was the client’s lawyer or the lawyer’s representative when the communication was made may claim the privilege on the client’s behalf—and is presumed to have authority to do so.
(d) Exceptions. This privilege does not apply:
(1) Furtherance of Crime or Fraud. If the lawyer’s services were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud.
(2) Claimants Through Same Deceased Client. If the communication is relevant to an issue between parties claiming through the same deceased client.
(3) Breach of Duty By a Lawyer or Client. If the communication is relevant to an issue of breach of duty by a lawyer to the client or by a client to the lawyer.
(4) Document Attested By a Lawyer. If the communication is relevant to an issue concerning an attested document to which the lawyer is an attesting witness.
(5) Joint Clients. If the communication:
(A) is offered in an action between clients who retained or consulted a lawyer in common;
(B) was made by any of the clients to the lawyer; and
(C) is relevant to a matter of common interest between the clients.
Rule 504. Spousal Privileges
(a) Confidential Communication Privilege.
(1) Definition. A communication is “confidential” if a person makes it privately to the person’s spouse and does not intend its disclosure to any other person.
(2) General Rule. A person has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made to the person’s
19 spouse while they were married. This privilege survives termination of the marriage.
(3) Who May Claim. The privilege may be claimed by:
(A) the communicating spouse;
(B) the guardian of a communicating spouse who is incompetent; or
(C) the personal representative of a communicating spouse who is deceased.
The other spouse may claim the privilege on the communicating spouse’s behalf— and is presumed to have authority to do so.
(4) Exceptions. This privilege does not apply:
(A) Furtherance of Crime or Fraud. If the communication is made—wholly or partially—to enable or aid anyone to commit or plan to commit a crime or fraud.
(B) Proceeding Between Spouse and Other Spouse or Claimant Through Deceased Spouse. In a civil proceeding:
(i) brought by or on behalf of one spouse against the other; or
(ii) between a surviving spouse and a person claiming through the deceased spouse.
(C) Crime Against Family, Spouse, Household Member, or Minor Child. In a:
(i) proceeding in which a party is accused of conduct that, if proved, is a crime against the person of the other spouse, any member of the household of either spouse, or any minor child; or
(ii) criminal proceeding involving a charge of bigamy under Section 25.01 of the Penal Code.
(D) Commitment or Similar Proceeding. In a proceeding to commit either spouse or otherwise to place the spouse or the spouse’s property under another’s control because of a mental or physical condition.
(E) Proceeding to Establish Competence. In a proceeding brought by or on behalf of either spouse to establish competence.
20 (b) Privilege Not to Testify in a Criminal Case.
(1) General Rule. In a criminal case, an accused’s spouse has a privilege not to be called to testify for the state. But this rule neither prohibits a spouse from testifying voluntarily for the state nor gives a spouse a privilege to refuse to be called to testify for the accused.
(2) Failure to Call Spouse. If other evidence indicates that the accused’s spouse could testify to relevant matters, an accused’s failure to call the spouse to testify is a proper subject of comment by counsel.
(3) Who May Claim. The privilege not to testify may be claimed by the accused’s spouse or the spouse’s guardian or representative, but not by the accused.
(A) Certain Criminal Proceedings. In a criminal proceeding in which a spouse is charged with:
(i) a crime against the other spouse, any member of the household of either spouse, or any minor child; or
(ii) bigamy under Section 25.01 of the Penal Code.
(B) Matters That Occurred Before the Marriage. If the spouse is called to testify about matters that occurred before the marriage.
Comment to 2015 Restyling: Previously, Rule 504(b)(1) provided that, “A spouse who testifies on behalf of an accused is subject to cross-examination as provided in Rule 611(b).” That sentence was included in the original version of Rule 504 when the Texas Rules of Criminal Evidence were promulgated in 1986 and changed the rule to a testimonial privilege held by the witness spouse. Until then, a spouse was deemed incompetent to testify against his or her defendant spouse, and when a spouse testified on behalf of a defendant spouse, the state was limited to cross-examining the spouse about matters relating to the spouse’s direct testimony. The quoted sentence from the original Criminal Rule 504(b) was designed to overturn this limitation and allow the state to cross- examine a testifying spouse in the same manner as any other witness. More than twenty-five years later, it is clear that a spouse who testifies either for or against a defendant spouse may be cross- examined in the same manner as any other witness. Therefore, the continued inclusion in the rule of a provision that refers only to the cross-examination of a spouse who testifies on behalf of the accused is more confusing than helpful. Its deletion is designed to clarify the rule and does not change existing law.
Rule 505. Privilege For Communications to a Clergy Member
21 (1) A “clergy member” is a minister, priest, rabbi, accredited Christian Science Practitioner, or other similar functionary of a religious organization or someone whom a communicant reasonably believes is a clergy member.
(2) A “communicant” is a person who consults a clergy member in the clergy member’s professional capacity as a spiritual adviser.
(3) A communication is “confidential” if made privately and not intended for further disclosure except to other persons present to further the purpose of the communication.
(b) General Rule. A communicant has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication by the communicant to a clergy member in the clergy member’s professional capacity as spiritual adviser.
(1) the communicant;
(2) the communicant’s guardian or conservator; or
(3) a deceased communicant’s personal representative.
The clergy member to whom the communication was made may claim the privilege on the communicant’s behalf—and is presumed to have authority to do so.
Rule 506. Political Vote Privilege
A person has a privilege to refuse to disclose the person’s vote at a political election conducted by secret ballot unless the vote was cast illegally.
Rule 507. Trade Secrets Privilege
(a) General Rule. A person has a privilege to refuse to disclose and to prevent other persons from disclosing a trade secret owned by the person, unless the court finds that nondisclosure will tend to conceal fraud or otherwise work injustice.
(b) Who May Claim. The privilege may be claimed by the person who owns the trade secret or the person’s agent or employee.
(c) Protective Measure. If a court orders a person to disclose a trade secret, it must take any protective measure required by the interests of the privilege holder and the parties and to further justice.
22 Rule 508. Informer’s Identity Privilege
(a) General Rule. The United States, a state, or a subdivision of either has a privilege to refuse to disclose a person’s identity if:
(1) the person has furnished information to a law enforcement officer or a member of a legislative committee or its staff conducting an investigation of a possible violation of law; and
(2) the information relates to or assists in the investigation.
(b) Who May Claim. The privilege may be claimed by an appropriate representative of the public entity to which the informer furnished the information. The court in a criminal case must reject the privilege claim if the state objects.
(c) Exceptions.
(1) Voluntary Disclosure; Informer a Witness. This privilege does not apply if:
(A) the informer’s identity or the informer’s interest in the communication’s subject matter has been disclosed—by a privilege holder or the informer’s own action—to a person who would have cause to resent the communication; or
(B) the informer appears as a witness for the public entity.
(2) Testimony About the Merits.
(A) Criminal Case. In a criminal case, this privilege does not apply if the court finds a reasonable probability exists that the informer can give testimony necessary to a fair determination of guilt or innocence. If the court so finds and the public entity elects not to disclose the informer’s identity:
(i) on the defendant’s motion, the court must dismiss the charges to which the testimony would relate; or
(ii) on its own motion, the court may dismiss the charges to which the testimony would relate.
(B) Certain Civil Cases. In a civil case in which the public entity is a party, this privilege does not apply if the court finds a reasonable probability exists that the informer can give testimony necessary to a fair determination of a material issue on the merits. If the court so finds and the public entity elects not to disclose the informer’s identity, the court may make any order that justice requires.
23 (C) Procedures.
(i) If it appears that an informer may be able to give the testimony required to invoke this exception and the public entity claims the privilege, the court must give the public entity an opportunity to show in camera facts relevant to determining whether this exception is met. The showing should ordinarily be made by affidavits, but the court may take testimony if it finds the matter cannot be satisfactorily resolved by affidavits.
(ii) No counsel or party may attend the in camera showing.
(iii) The court must seal and preserve for appeal evidence submitted under this subparagraph (2)(C). The evidence must not otherwise be revealed without the public entity’s consent.
(3) Legality of Obtaining Evidence.
(A) Court May Order Disclosure. The court may order the public entity to disclose an informer’s identity if:
(i) information from an informer is relied on to establish the legality of the means by which evidence was obtained; and
(ii) the court is not satisfied that the information was received from an informer reasonably believed to be reliable or credible.
(B) Procedures.
(i) On the public entity’s request, the court must order the disclosure be made in camera.
(ii) No counsel or party may attend the in camera disclosure.
(iii) If the informer’s identity is disclosed in camera, the court must seal and preserve for appeal the record of the in camera proceeding. The record of the in camera proceeding must not otherwise be revealed without the public entity’s consent.
Rule 509. Physician–Patient Privilege
(1) A “patient” is a person who consults or is seen by a physician for medical care.
24 (2) A “physician” is a person licensed, or who the patient reasonably believes is licensed, to practice medicine in any state or nation.
(3) A communication is “confidential” if not intended to be disclosed to third persons other than those:
(A) present to further the patient’s interest in the consultation, examination, or interview;
(B) reasonably necessary to transmit the communication; or
(C) participating in the diagnosis and treatment under the physician’s direction, including members of the patient’s family.
(b) Limited Privilege in a Criminal Case. There is no physician–patient privilege in a criminal case. But a confidential communication is not admissible in a criminal case if made:
(1) to a person involved in the treatment of or examination for alcohol or drug abuse; and
(2) by a person being treated voluntarily or being examined for admission to treatment for alcohol or drug abuse.
(c) General Rule in a Civil Case. In a civil case, a patient has a privilege to refuse to disclose and to prevent any other person from disclosing:
(1) a confidential communication between a physician and the patient that relates to or was made in connection with any professional services the physician rendered the patient; and
(2) a record of the patient’s identity, diagnosis, evaluation, or treatment created or maintained by a physician.
(d) Who May Claim in a Civil Case. The privilege may be claimed by:
(1) the patient; or
(2) the patient’s representative on the patient’s behalf.
The physician may claim the privilege on the patient’s behalf—and is presumed to have authority to do so.
(e) Exceptions in a Civil Case. This privilege does not apply:
25 (1) Proceeding Against Physician. If the communication or record is relevant to a claim or defense in:
(A) a proceeding the patient brings against a physician; or
(B) a license revocation proceeding in which the patient is a complaining witness.
(2) Consent. If the patient or a person authorized to act on the patient’s behalf consents in writing to the release of any privileged information, as provided in subdivision (f).
(3) Action to Collect. In an action to collect a claim for medical services rendered to the patient.
(4) Party Relies on Patient’s Condition. If any party relies on the patient’s physical, mental, or emotional condition as a part of the party’s claim or defense and the communication or record is relevant to that condition.
(5) Disciplinary Investigation or Proceeding. In a disciplinary investigation of or proceeding against a physician under the Medical Practice Act, Tex. Occ. Code § 164.001 et seq., or a registered nurse under Tex. Occ. Code § 301.451 et seq. But the board conducting the investigation or proceeding must protect the identity of any patient whose medical records are examined unless:
(A) the patient’s records would be subject to disclosure under paragraph (e)(1); or
(B) the patient has consented in writing to the release of medical records, as provided in subdivision (f).
(6) Involuntary Civil Commitment or Similar Proceeding. In a proceeding for involuntary civil commitment or court-ordered treatment, or a probable cause hearing under Tex. Health & Safety Code:
(A) chapter 462 (Treatment of Persons With Chemical Dependencies);
(B) title 7, subtitle C (Texas Mental Health Code); or
(C) title 7, subtitle D (Persons With an Intellectual Disability Act).
(7) Abuse or Neglect of “Institution” Resident. In a proceeding regarding the abuse or neglect, or the cause of any abuse or neglect, of a resident of an “institution” as defined in Tex. Health & Safety Code § 242.002.
26 (f) Consent For Release of Privileged Information.
(1) Consent for the release of privileged information must be in writing and signed by:
(A) the patient;
(B) a parent or legal guardian if the patient is a minor;
(C) a legal guardian if the patient has been adjudicated incompetent to manage personal affairs;
(D) an attorney appointed for the patient under Tex. Health & Safety Code title 7, subtitles C and D;
(E) an attorney ad litem appointed for the patient under Tex. Estates Code title 3, subtitle C;
(F) an attorney ad litem or guardian ad litem appointed for a minor under Tex. Fam. Code chapter 107, subchapter B; or
(G) a personal representative if the patient is deceased.
(2) The consent must specify:
(A) the information or medical records covered by the release;
(B) the reasons or purposes for the release; and
(C) the person to whom the information is to be released.
(3) The patient, or other person authorized to consent, may withdraw consent to the release of any information. But a withdrawal of consent does not affect any information disclosed before the patient or authorized person gave written notice of the withdrawal.
(4) Any person who receives information privileged under this rule may disclose the information only to the extent consistent with the purposes specified in the consent.
Comment to 2015 Restyling: The physician–patient privilege in a civil case was first enacted in Texas in 1981 as part of the Medical Practice Act, formerly codified in Tex. Rev. Civ. Stat. art. 4495b. That statute provided that the privilege applied even if a patient had received a physician’s services before the statute’s enactment. Because more than thirty years have now passed, it is no longer necessary to burden the text of the rule with a statement regarding the privilege’s retroactive application. But deleting this statement from the rule’s text is not intended as a substantive change in the law.
27 The former rule’s reference to “confidentiality or” and “administrative proceedings” in subdivision (e) [Exceptions in a Civil Case] has been deleted. First, this rule is a privilege rule only. Tex. Occ. Code § 159.004 sets forth exceptions to a physician’s duty to maintain confidentiality of patient information outside court and administrative proceedings. Second, by their own terms the rules of evidence govern only proceedings in Texas courts. See Rule 101(b). To the extent the rules apply in administrative proceedings, it is because the Administrative Procedure Act mandates their applicability. Tex. Gov’t Code § 2001.083 provides that “[i]n a contested case, a state agency shall give effect to the rules of privilege recognized by law.” Section 2001.091 excludes privileged material from discovery in contested administrative cases.
Statutory references in the former rule that are no longer up-to-date have been revised. Finally, reconciling the provisions of Rule 509 with the parts of Tex. Occ. Code ch. 159 that address a physician-patient privilege applicable to court proceedings is beyond the scope of the restyling project.
Rule 510. Mental Health Information Privilege in Civil Cases
(1) A “professional” is a person:
(A) authorized to practice medicine in any state or nation;
(B) licensed or certified by the State of Texas in the diagnosis, evaluation, or treatment of any mental or emotional disorder;
(C) involved in the treatment or examination of drug abusers; or
(D) who the patient reasonably believes to be a professional under this rule.
(2) A “patient” is a person who:
(A) consults or is interviewed by a professional for diagnosis, evaluation, or treatment of any mental or emotional condition or disorder, including alcoholism and drug addiction; or
(B) is being treated voluntarily or being examined for admission to voluntary treatment for drug abuse.
(3) A “patient’s representative” is:
(A) any person who has the patient’s written consent;
(B) the parent of a minor patient;
28 (C) the guardian of a patient who has been adjudicated incompetent to manage personal affairs; or
(D) the personal representative of a deceased patient.
(4) A communication is “confidential” if not intended to be disclosed to third persons other than those:
(A) present to further the patient’s interest in the diagnosis, examination, evaluation, or treatment;
(C) participating in the diagnosis, examination, evaluation, or treatment under the professional’s direction, including members of the patient’s family.
(b) General Rule; Disclosure.
(1) In a civil case, a patient has a privilege to refuse to disclose and to prevent any other person from disclosing:
(A) a confidential communication between the patient and a professional; and
(B) a record of the patient’s identity, diagnosis, evaluation, or treatment that is created or maintained by a professional.
(2) In a civil case, any person—other than a patient’s representative acting on the patient’s behalf—who receives information privileged under this rule may disclose the information only to the extent consistent with the purposes for which it was obtained.
The professional may claim the privilege on the patient’s behalf—and is presumed to have authority to do so.
(1) Proceeding Against Professional. If the communication or record is relevant to a claim or defense in:
(A) a proceeding the patient brings against a professional; or
29 (B) a license revocation proceeding in which the patient is a complaining witness. (2) Written Waiver. If the patient or a person authorized to act on the patient’s behalf waives the privilege in writing.
(3) Action to Collect. In an action to collect a claim for mental or emotional health services rendered to the patient.
(4) Communication Made in Court-Ordered Examination. To a communication the patient made to a professional during a court-ordered examination relating to the patient’s mental or emotional condition or disorder if:
(A) the patient made the communication after being informed that it would not be privileged;
(B) the communication is offered to prove an issue involving the patient’s mental or emotional health; and
(C) the court imposes appropriate safeguards against unauthorized disclosure.
(5) Party Relies on Patient’s Condition. If any party relies on the patient’s physical, mental, or emotional condition as a part of the party’s claim or defense and the communication or record is relevant to that condition.
(6) Abuse or Neglect of “Institution” Resident. In a proceeding regarding the abuse or neglect, or the cause of any abuse or neglect, of a resident of an “institution” as defined in Tex. Health & Safety Code § 242.002.
Comment to 2015 Restyling: The mental-health-information privilege in civil cases was enacted in Texas in 1979. Tex. Rev. Civ. Stat. art. 5561h (later codified at Tex. Health & Safety Code § 611.001 et seq.) provided that the privilege applied even if the patient had received the professional’s services before the statute’s enactment. Because more than thirty years have now passed, it is no longer necessary to burden the text of the rule with a statement regarding the privilege’s retroactive application. But deleting this statement from the rule’s text is not intended as a substantive change in the law.
Tex. Health & Safety Code ch. 611 addresses confidentiality rules for communications between a patient and a mental-health professional and for the professional’s treatment records. Many of these provisions apply in contexts other than court proceedings. Reconciling the provisions of Rule 510 with the parts of chapter 611 that address a mental-health-information privilege applicable to court proceedings is beyond the scope of the restyling project.
Rule 511. Waiver by Voluntary Disclosure
30 (a) General Rule.
A person upon whom these rules confer a privilege against disclosure waives the privilege if:
(1) the person or a predecessor of the person while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the privileged matter unless such disclosure itself is privileged; or
(2) the person or a representative of the person calls a person to whom privileged communications have been made to testify as to the person’s character or character trait insofar as such communications are relevant to such character or character trait.
(b) Lawyer-Client Privilege and Work Product; Limitations on Waiver.
Notwithstanding paragraph (a), the following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the lawyer-client privilege or work-product protection.
(1) Disclosure Made in a Federal or State Proceeding or to a Federal or State Office or Agency; Scope of a Waiver. When the disclosure is made in a federal proceeding or state proceeding of any state or to a federal office or agency or state office or agency of any state and waives the lawyer-client privilege or work-product protection, the waiver extends to an undisclosed communication or information only if:
(A) the waiver is intentional;
(B) the disclosed and undisclosed communications or information concern the same subject matter; and
(C) they ought in fairness to be considered together.
(2) Inadvertent Disclosure in State Civil Proceedings. When made in a Texas state proceeding, an inadvertent disclosure does not operate as a waiver if the holder followed the procedures of Rule of Civil Procedure 193.3(d).
(3) Controlling Effect of a Court Order. A disclosure made in litigation pending before a federal court or a state court of any state that has entered an order that the privilege or protection is not waived by disclosure connected with the litigation pending before that court is also not a waiver in a Texas state proceeding.
31 (4) Controlling Effect of a Party Agreement. An agreement on the effect of disclosure in a state proceeding of any state is binding only on the parties to the agreement, unless it is incorporated into a court order.
Comment to 2015 Restyling: The amendments to Rule 511 are designed to align Texas law with federal law on waiver of privilege by voluntary disclosure. Subsection (a) sets forth the general rule. Subsection (b) incorporates the provisions of Federal Rule of Evidence 502. Like the federal rule, subsection (b) only addresses disclosure of communications or information covered by the lawyer-client privilege or work-product protection. These amendments do not affect the law governing waiver of other privileges or protections.
Rule 512. Privileged Matter Disclosed Under Compulsion or Without Opportunity to Claim Privilege
A privilege claim is not defeated by a disclosure that was:
(a) compelled erroneously; or
(b) made without opportunity to claim the privilege.
Rule 513. Comment On or Inference From a Privilege Claim; Instruction
(a) Comment or Inference Not Permitted. Except as permitted in Rule 504(b)(2), neither the court nor counsel may comment on a privilege claim—whether made in the present proceeding or previously—and the factfinder may not draw an inference from the claim.
(b) Claiming Privilege Without the Jury’s Knowledge. To the extent practicable, the court must conduct a jury trial so that the making of a privilege claim is not suggested to the jury by any means.
(c) Claim of Privilege Against Self-Incrimination in a Civil Case. Subdivisions (a) and (b) do not apply to a party’s claim, in the present civil case, of the privilege against self-incrimination.
(d) Jury Instruction. When this rule forbids a jury from drawing an inference from a privilege claim, the court must, on request of a party against whom the jury might draw the inference, instruct the jury accordingly.
ARTICLE VI. WITNESSES
Rule 601. Competency to Testify in General; “Dead Man’s Rule”
32 (a) In General. Every person is competent to be a witness unless these rules provide otherwise. The following witnesses are incompetent:
(1) Insane Persons. A person who is now insane or was insane at the time of the events about which the person is called to testify.
(2) Persons Lacking Sufficient Intellect. A child—or any other person—whom the court examines and finds lacks sufficient intellect to testify concerning the matters in issue.
(b) The “Dead Man’s Rule.”
(1) Applicability. The “Dead Man’s Rule” applies only in a civil case:
(A) by or against a party in the party’s capacity as an executor, administrator, or guardian; or
(B) by or against a decedent’s heirs or legal representatives and based in whole or in part on the decedent’s oral statement.
(2) General Rule. In cases described in subparagraph (b)(1)(A), a party may not testify against another party about an oral statement by the testator, intestate, or ward. In cases described in subparagraph (b)(1)(B), a party may not testify against another party about an oral statement by the decedent.
(3) Exceptions. A party may testify against another party about an oral statement by the testator, intestate, ward, or decedent if:
(A) the party’s testimony about the statement is corroborated; or
(B) the opposing party calls the party to testify at the trial about the statement.
(4) Instructions. If a court excludes evidence under paragraph (b)(2), the court must instruct the jury that the law prohibits a party from testifying about an oral statement by the testator, intestate, ward, or decedent unless the oral statement is corroborated or the opposing party calls the party to testify at the trial about the statement.
Comment to 2015 Restyling: The text of the “Dead Man’s Rule” has been streamlined to clarify its meaning without making any substantive changes. The text of former Rule 601(b) (as well as its statutory predecessor, Vernon’s Ann. Civ. St. art. 3716) prohibits only a “party” from testifying about the dead man’s statements. Despite this, the last sentence of former Rule 601(b) requires the court to instruct the jury when the rule “prohibits an interested party or witness” from testifying. Because the rule prohibits only a “party” from testifying, restyled Rule 601(b)(4) references only “a party,” and not “an interested party or witness.” To be sure, courts have indicated that the rule (or its statutory predecessor) may be applicable to a witness who is not
33 nominally a party and inapplicable to a witness who is only nominally a party. See, e.g., Chandler v. Welborn, 156 Tex. 312, 294 S.W.2d 801, 809 (1956); Ragsdale v. Ragsdale, 142 Tex. 476, 179 S.W.2d 291, 295 (1944). But these decisions are based on an interpretation of the meaning of “party.” Therefore, limiting the court’s instruction under restyled Rule 601(b)(4) to “a party” does not change Texas practice. In addition, restyled Rule 601(b) deletes the sentence in former Rule 601(b) that states “[e]xcept for the foregoing, a witness is not precluded from giving evidence . . . because the witness is a party to the action . . .” This sentence is surplusage. Rule 601(b) is a rule of exclusion. If the testimony falls outside the rule of exclusion, its admissibility will be determined by other applicable rules of evidence.
Rule 602. Need for Personal Knowledge
A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony. This rule does not apply to a witness’s expert testimony under Rule 703.
Rule 603. Oath or Affirmation to Testify Truthfully
Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience.
Rule 604. Interpreter
An interpreter must be qualified and must give an oath or affirmation to make a true translation.
Rule 605. Judge’s Competency as a Witness
The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue.
Rule 606. Juror’s Competency as a Witness
(a) At the Trial. A juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence.
(b) During an Inquiry into the Validity of a Verdict or Indictment.
(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident
34 that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.
(2) Exceptions. A juror may testify:
(A) about whether an outside influence was improperly brought to bear on any juror; or
(B) to rebut a claim that the juror was not qualified to serve. Rule 607. Who May Impeach a Witness
Any party, including the party that called the witness, may attack the witness’s credibility.
Rule 608. A Witness’s Character for Truthfulness or Untruthfulness
(a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.
(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, a party may not inquire into or offer extrinsic evidence to prove specific instances of the witness’s conduct in order to attack or support the witness’s character for truthfulness.
Rule 609. Impeachment by Evidence of a Criminal Conviction
(a) In General. Evidence of a criminal conviction offered to attack a witness’s character for truthfulness must be admitted if:
(1) the crime was a felony or involved moral turpitude, regardless of punishment;
(2) the probative value of the evidence outweighs its prejudicial effect to a party; and
(3) it is elicited from the witness or established by public record.
(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect.
35 (c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if:
(1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime that was classified as a felony or involved moral turpitude, regardless of punishment;
(2) probation has been satisfactorily completed for the conviction, and the person has not been convicted of a later crime that was classified as a felony or involved moral turpitude, regardless of punishment; or (3) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.
(d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if:
(1) the witness is a party in a proceeding conducted under title 3 of the Texas Family Code; or
(2) the United States or Texas Constitution requires that it be admitted.
(e) Pendency of an Appeal. A conviction for which an appeal is pending is not admissible under this rule.
(f) Notice. Evidence of a witness’s conviction is not admissible under this rule if, after receiving from the adverse party a timely written request specifying the witness, the proponent of the conviction fails to provide sufficient written notice of intent to use the conviction. Notice is sufficient if it provides a fair opportunity to contest the use of such evidence.
Rule 610. Religious Beliefs or Opinions
Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility.
Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence
(a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:
(1) make those procedures effective for determining the truth;
(2) avoid wasting time; and
36 (3) protect witnesses from harassment or undue embarrassment.
(b) Scope of Cross-Examination. A witness may be cross-examined on any relevant matter, including credibility.
(c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions:
(1) on cross-examination; and (2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.
Rule 612. Writing Used to Refresh a Witness’s Memory
(a) Scope. This rule gives an adverse party certain options when a witness uses a writing to refresh memory:
(1) while testifying;
(2) before testifying, in civil cases, if the court decides that justice requires the party to have those options; or
(3) before testifying, in criminal cases.
(b) Adverse Party’s Options; Deleting Unrelated Matter. An adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness’s testimony. If the producing party claims that the writing includes unrelated matter, the court must examine the writing in camera, delete any unrelated portion, and order that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved for the record.
(c) Failure to Produce or Deliver the Writing. If a writing is not produced or is not delivered as ordered, the court may issue any appropriate order. But if the prosecution does not comply in a criminal case, the court must strike the witness’s testimony or—if justice so requires—declare a mistrial.
Rule 613. Witness’s Prior Statement and Bias or Interest
(a) Witness’s Prior Inconsistent Statement.
(1) Foundation Requirement. When examining a witness about the witness’s prior inconsistent statement—whether oral or written—a party must first tell the witness:
37 (A) the contents of the statement;
(B) the time and place of the statement; and
(C) the person to whom the witness made the statement.
(2) Need Not Show Written Statement. If the witness’s prior inconsistent statement is written, a party need not show it to the witness before inquiring about it, but must, upon request, show it to opposing counsel. (3) Opportunity to Explain or Deny. A witness must be given the opportunity to explain or deny the prior inconsistent statement.
(4) Extrinsic Evidence. Extrinsic evidence of a witness’s prior inconsistent statement is not admissible unless the witness is first examined about the statement and fails to unequivocally admit making the statement.
(5) Opposing Party’s Statement. This subdivision (a) does not apply to an opposing party’s statement under Rule 801(e)(2).
(b) Witness’s Bias or Interest.
(1) Foundation Requirement. When examining a witness about the witness’s bias or interest, a party must first tell the witness the circumstances or statements that tend to show the witness’s bias or interest. If examining a witness about a statement— whether oral or written—to prove the witness’s bias or interest, a party must tell the witness:
(A) the contents of the statement;
(C) the person to whom the statement was made.
(2) Need Not Show Written Statement. If a party uses a written statement to prove the witness’s bias or interest, a party need not show the statement to the witness before inquiring about it, but must, upon request, show it to opposing counsel.
(3) Opportunity to Explain or Deny. A witness must be given the opportunity to explain or deny the circumstances or statements that tend to show the witness’s bias or interest. And the witness’s proponent may present evidence to rebut the charge of bias or interest.
(4) Extrinsic Evidence. Extrinsic evidence of a witness’s bias or interest is not admissible unless the witness is first examined about the bias or interest and fails to unequivocally admit it.
38 (c) Witness’s Prior Consistent Statement. Unless Rule 801(e)(1)(B) provides otherwise, a witness’s prior consistent statement is not admissible if offered solely to enhance the witness’s credibility.
Comment to 2015 Restyling: The amended rule retains the requirement that a witness be given an opportunity to explain or deny (a) a prior inconsistent statement or (b) the circumstances or a statement showing the witness’s bias or interest, but this requirement is not imposed on the examining attorney. A witness may have to wait until redirect examination to explain a prior inconsistent statement or the circumstances or a statement that shows bias. But the impeaching attorney still is not permitted to introduce extrinsic evidence of the witness’s prior inconsistent statement or bias unless the witness has first been examined about the statement or bias and has failed to unequivocally admit it. All other changes to the rule are intended to be stylistic only.
Rule 614. Excluding Witnesses
At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:
(a) a party who is a natural person and, in civil cases, that person’s spouse;
(b) after being designated as the party’s representative by its attorney:
(1) in a civil case, an officer or employee of a party that is not a natural person; or
(2) in a criminal case, a defendant that is not a natural person;
(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or
(d) the victim in a criminal case, unless the court determines that the victim’s testimony would be materially affected by hearing other testimony at the trial.
Rule 615. Producing a Witness’s Statement in Criminal Cases
(a) Motion to Produce. After a witness other than the defendant testifies on direct examination, the court, on motion of a party who did not call the witness, must order an attorney for the state or the defendant and the defendant’s attorney to produce, for the examination and use of the moving party, any statement of the witness that:
(1) is in their possession; (2) relates to the subject matter of the witness’s testimony; and (3) has not previously been produced.
39 (b) Producing the Entire Statement. If the entire statement relates to the subject matter of the witness’s testimony, the court must order that the statement be delivered to the moving party.
(c) Producing a Redacted Statement. If the party who called the witness claims that the statement contains information that does not relate to the subject matter of the witness’s testimony, the court must inspect the statement in camera. After excising any unrelated portions, the court must order delivery of the redacted statement to the moving party. If a party objects to an excision, the court must preserve the entire statement with the excised portion indicated, under seal, as part of the record.
(d) Recess to Examine a Statement. If the court orders production of a witness’s statement, the court, on request, must recess the proceedings to allow the moving party time to examine the statement and prepare for its use.
(e) Sanction for Failure to Produce or Deliver a Statement. If the party who called the witness disobeys an order to produce or deliver a statement, the court must strike the witness’s testimony from the record. If an attorney for the state disobeys the order, the court must declare a mistrial if justice so requires.
(f) “Statement” Defined. As used in this rule, a witness’s “statement’’ means:
(1) a written statement that the witness makes and signs, or otherwise adopts or approves;
(2) a substantially verbatim, contemporaneously recorded recital of the witness’s oral statement that is contained in any recording or any transcription of a recording; or
(3) the witness’s statement to a grand jury, however taken or recorded, or a transcription of such a statement.
Comment to 2015 Amendment: The Michael Morton Act, codified at Texas Code of Criminal Procedure art. 39.14, affords defendants substantial pre-trial discovery, requiring the state, upon request from the defendant, to produce and permit the defendant to inspect and copy various items, including witness statements. In many instances, therefore, art. 39.14 eliminates the need, after the witness testifies on direct examination, for a defendant to request, and the court to order, production of a witness’s statement.
But art. 39.14 does not entirely eliminate the need for in-trial discovery of witness statements. Art. 39.14 does not extend equivalent discovery rights to the prosecution, and so prosecutors will still need to use Rule 615 to obtain witness statements of defense witnesses. Moreover, some defendants may fail to exercise their discovery rights under art. 39.14 and so may wish to obtain a witness statement under Rule 615. In addition, the Michael Morton Act applies only to the prosecution of offenses committed after December 31, 2013. Defendants on trial for offenses
40 committed before then have no right to pre-trial discovery of the witness statements of prosecution witnesses.
Consequently, Rule 615(a) has been amended to account for the changed pre-trial discovery regime introduced by the Michael Morton Act. If a party’s adversary has already produced a witness’s statement – whether through formal discovery under art. 39.14 or through more informal means – Rule 615(a) no longer gives a party the right to obtain, after the witness testifies on direct examination, a court order for production of the witness’s statement. But if a party’s adversary has not already produced a witness’s statement, the party may still use Rule 615(a) to request and obtain a court order requiring production of the witness’s statement after the witness finishes testifying on direct examination.
ARTICLE VII. OPINIONS AND EXPERT TESTIMONY
Rule 701. Opinion Testimony by Lay Witnesses
If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:
(a) rationally based on the witness’s perception; and
(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue.
Comment to 2015 Restyling: All references to an “inference” have been deleted because this makes the Rule flow better and easier to read, and because any “inference” is covered by the broader term “opinion.” Courts have not made substantive decisions on the basis of any distinction between an opinion and an inference. No change in current practice is intended.
Rule 702. Testimony by Expert Witnesses
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.
Rule 703. Bases of an Expert’s Opinion Testimony
An expert may base an opinion on facts or data in the case that the expert has been made aware of, reviewed, or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted.
41 Comment to 2015 Restyling: All references to an “inference” have been deleted because this makes the Rule flow better and easier to read, and because any “inference” is covered by the broader term “opinion.” Courts have not made substantive decisions on the basis of any distinction between an opinion and an inference. No change in current practice is intended.
Rule 704. Opinion on an Ultimate Issue
An opinion is not objectionable just because it embraces an ultimate issue.
Rule 705. Disclosing the Underlying Facts or Data and Examining an Expert About Them
(a) Stating an Opinion Without Disclosing the Underlying Facts or Data. Unless the court orders otherwise, an expert may state an opinion—and give the reasons for it— without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination.
(b) Voir Dire Examination of an Expert About the Underlying Facts or Data. Before an expert states an opinion or discloses the underlying facts or data, an adverse party in a civil case may—or in a criminal case must—be permitted to examine the expert about the underlying facts or data. This examination must take place outside the jury’s hearing.
(c) Admissibility of Opinion. An expert’s opinion is inadmissible if the underlying facts or data do not provide a sufficient basis for the opinion.
(d) When Otherwise Inadmissible Underlying Facts or Data May Be Disclosed; Instructing the Jury. If the underlying facts or data would otherwise be inadmissible, the proponent of the opinion may not disclose them to the jury if their probative value in helping the jury evaluate the opinion is outweighed by their prejudicial effect. If the court allows the proponent to disclose those facts or data the court must, upon timely request, restrict the evidence to its proper scope and instruct the jury accordingly.
Comment to 2015 Restyling: All references to an “inference” have been deleted because this makes the Rule flow better and easier to read, and because any “inference” is covered by the broader term “opinion.” Courts have not made substantive decisions on the basis of any distinction between an opinion and an inference. No change in current practice is intended.
Rule 706. Audit in Civil Cases
42 Notwithstanding any other evidence rule, the court must admit an auditor’s verified report prepared under Rule of Civil Procedure 172 and offered by a party. If a party files exceptions to the report, a party may offer evidence supporting the exceptions to contradict the report.
ARTICLE VIII. HEARSAY
Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay
(a) Statement. “Statement” means a person’s oral or written verbal expression, or nonverbal conduct that a person intended as a substitute for verbal expression.
(b) Declarant. “Declarant” means the person who made the statement.
(c) Matter Asserted. “Matter asserted” means:
(1) any matter a declarant explicitly asserts; and
(2) any matter implied by a statement, if the probative value of the statement as offered flows from the declarant’s belief about the matter.
(d) Hearsay. “Hearsay” means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.
(e) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:
(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:
(A) is inconsistent with the declarant’s testimony and:
(i) when offered in a civil case, was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition; or
(ii) when offered in a criminal case, was given under penalty of perjury at a trial, hearing, or other proceeding—except a grand jury proceeding—or in a deposition;
43 (B) is consistent with the declarant’s testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or
(C) identifies a person as someone the declarant perceived earlier.
(2) An Opposing Party’s Statement. The statement is offered against an opposing party and:
(A) was made by the party in an individual or representative capacity;
(B) is one the party manifested that it adopted or believed to be true;
(C) was made by a person whom the party authorized to make a statement on the subject;
(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or
(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.
(3) A Deponent’s Statement. In a civil case, the statement was made in a deposition taken in the same proceeding. “Same proceeding” is defined in Rule of Civil Procedure 203.6(b). The deponent’s unavailability as a witness is not a requirement for admissibility.
Comment to 2015 Restyling: Statements falling under the hearsay exclusion provided by Rule 801(e)(2) are no longer referred to as “admissions” in the title to the subdivision. The term “admissions” is confusing because not all statements covered by the exclusion are admissions in the colloquial sense—a statement can be within the exclusion even if it “admitted” nothing and was not against the party’s interest when made. The term “admissions” also raises confusion in comparison with the Rule 803(24) exception for declarations against interest. No change in application of the exclusion is intended.
The deletion of former Rule 801(e)(1)(D), which cross-references Code of Criminal Procedure art. 38.071, is not intended as a substantive change. Including this cross-reference made sense when the Texas Rules of Criminal Evidence were first promulgated, but with subsequent changes to the statutory provision, its inclusion is no longer appropriate. The version of article 38.071 that was initially cross-referenced in the Rules of Criminal Evidence required the declarant-victim to be available to testify at the trial. That requirement has since been deleted from the statute, and the statute no longer requires either the availability or testimony of the declarant-victim. Thus, cross-referencing the statute in Rule 801(e)(1), which applies only when the declarant testifies at trial about the prior statement, no longer makes sense. Moreover, article 38.071 is but one of a number of statutes that mandate the admission of certain hearsay statements in particular circumstances. See, e.g., Code of Criminal Procedure art. 38.072; Family Code §§ 54.031,
44 104.002, 104.006. These statutory provisions take precedence over the general rule excluding hearsay, see Rules 101(c) and 802, and there is no apparent justification for cross-referencing article 38.071 and not all other such provisions.
Rule 802. The Rule Against Hearsay
Hearsay is not admissible unless any of the following provides otherwise:
• a statute; • these rules; or • other rules prescribed under statutory authority.
Inadmissible hearsay admitted without objection may not be denied probative value merely because it is hearsay.
Rule 803. Exceptions to the Rule Against Hearsay—Regardless of Whether the Declarant Is Available as a Witness
The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:
(1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.
(2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.
(3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.
(4) Statement Made for Medical Diagnosis or Treatment. A statement that:
(A) is made for—and is reasonably pertinent to—medical diagnosis or treatment; and
(B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.
(5) Recorded Recollection. A record that:
45 (A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
(B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and
(C) accurately reflects the witness’s knowledge, unless the circumstances of the record’s preparation cast doubt on its trustworthiness.
If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.
(6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:
(A) the record was made at or near the time by—or from information transmitted by—someone with knowledge;
(B) the record was kept in the course of a regularly conducted business activity;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by an affidavit or unsworn declaration that complies with Rule 902(10); and
(E) the opponent fails to demonstrate that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.
“Business” as used in this paragraph includes every kind of regular organized activity whether conducted for profit or not.
(7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a record described in paragraph (6) if:
(A) the evidence is admitted to prove that the matter did not occur or exist;
(B) a record was regularly kept for a matter of that kind; and
(C) the opponent fails to show that the possible source of the information or other circumstances indicate a lack of trustworthiness.
(8) Public Records. A record or statement of a public office if:
(A) it sets out:
46 (i) the office’s activities;
(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law- enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and
(B) the opponent fails to demonstrate that the source of information or other circumstances indicate a lack of trustworthiness.
(9) Public Records of Vital Statistics. A record of a birth, death, or marriage, if reported to a public office in accordance with a legal duty.
(10) Absence of a Public Record. Testimony—or a certification under Rule 902—that a diligent search failed to disclose a public record or statement if the testimony or certification is admitted to prove that:
(A) the record or statement does not exist; or
(B) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind.
(11) Records of Religious Organizations Concerning Personal or Family History. A statement of birth, legitimacy, ancestry, marriage, divorce, death, relationship by blood or marriage, or similar facts of personal or family history, contained in a regularly kept record of a religious organization.
(12) Certificates of Marriage, Baptism, and Similar Ceremonies. A statement of fact contained in a certificate:
(A) made by a person who is authorized by a religious organization or by law to perform the act certified;
(B) attesting that the person performed a marriage or similar ceremony or administered a sacrament; and
(C) purporting to have been issued at the time of the act or within a reasonable time after it.
(13) Family Records. A statement of fact about personal or family history contained in a family record, such as a Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn or burial marker.
47 (14) Records of Documents That Affect an Interest in Property. The record of a document that purports to establish or affect an interest in property if:
(A) the record is admitted to prove the content of the original recorded document, along with its signing and its delivery by each person who purports to have signed it;
(B) the record is kept in a public office; and
(C) a statute authorizes recording documents of that kind in that office.
(15) Statements in Documents That Affect an Interest in Property. A statement contained in a document that purports to establish or affect an interest in property if the matter stated was relevant to the document’s purpose—unless later dealings with the property are inconsistent with the truth of the statement or the purport of the document.
(16) Statements in Ancient Documents. A statement in a document that is at least 20 years old and whose authenticity is established.
(17) Market Reports and Similar Commercial Publications. Market quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations.
(18) Statements in Learned Treatises, Periodicals, or Pamphlets. A statement contained in a treatise, periodical, or pamphlet if:
(A) the statement is called to the attention of an expert witness on cross- examination or relied on by the expert on direct examination; and
(B) the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice.
If admitted, the statement may be read into evidence but not received as an exhibit.
(19) Reputation Concerning Personal or Family History. A reputation among a person’s family by blood, adoption, or marriage—or among a person’s associates or in the community—concerning the person’s birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage, or similar facts of personal or family history.
(20) Reputation Concerning Boundaries or General History. A reputation in a community—arising before the controversy—concerning boundaries of land in
48 the community or customs that affect the land, or concerning general historical events important to that community, state, or nation.
(21) Reputation Concerning Character. A reputation among a person’s associates or in the community concerning the person’s character.
(22) Judgment of a Previous Conviction. Evidence of a final judgment of conviction if:
(A) it is offered in a civil case and:
(i) the judgment was entered after a trial or guilty plea, but not a nolo contendere plea;
(ii) the conviction was for a felony;
(iii) the evidence is admitted to prove any fact essential to the judgment; and
(iv) an appeal of the conviction is not pending; or
(B) it is offered in a criminal case and:
(i) the judgment was entered after a trial or a guilty or nolo contendere plea;
(ii) the conviction was for a criminal offense;
(iii) the evidence is admitted to prove any fact essential to the judgment;
(iv) when offered by the prosecutor for a purpose other than impeachment, the judgment was against the defendant; and
(v) an appeal of the conviction is not pending.
(23) Judgments Involving Personal, Family, or General History or a Boundary. A judgment that is admitted to prove a matter of personal, family, or general history, or boundaries, if the matter:
(A) was essential to the judgment; and
(B) could be proved by evidence of reputation.
49 (24) Statement Against Interest. A statement that:
(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability or to make the declarant an object of hatred, ridicule, or disgrace; and
(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.
Rule 804. Exceptions to the Rule Against Hearsay—When the Declarant Is Unavailable as a Witness
(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:
(1) is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies;
(2) refuses to testify about the subject matter despite a court order to do so;
(3) testifies to not remembering the subject matter;
(4) cannot be present or testify at the trial or hearing because of death or a then- existing infirmity, physical illness, or mental illness; or
(5) is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure the declarant’s attendance or testimony.
But this subdivision (a) does not apply if the statement’s proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying.
(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:
(1) Former Testimony. Testimony that:
(A) when offered in a civil case:
50 (i) was given as a witness at a trial or hearing of the current or a different proceeding or in a deposition in a different proceeding; and
(ii) is now offered against a party and the party—or a person with similar interest—had an opportunity and similar motive to develop the testimony by direct, cross-, or redirect examination.
(B) when offered in a criminal case:
(i) was given as a witness at a trial or hearing of the current or a different proceeding; and
(ii) is now offered against a party who had an opportunity and similar motive to develop it by direct, cross-, or redirect examination; or
(iii) was taken in a deposition under—and is now offered in accordance with—chapter 39 of the Code of Criminal Procedure.
(2) Statement Under the Belief of Imminent Death. A statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.
(3) Statement of Personal or Family History. A statement about:
(A) the declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption or marriage, or similar facts of personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact; or
(B) another person concerning any of these facts, as well as death, if the declarant was related to the person by blood, adoption, or marriage or was so intimately associated with the person’s family that the declarant’s information is likely to be accurate.
Rule 805. Hearsay Within Hearsay
Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.
Rule 806. Attacking and Supporting the Declarant’s Credibility
When a hearsay statement—or a statement described in Rule 801(e)(2)(C), (D), or (E), or, in a civil case, a statement described in Rule 801(e)(3)—has been admitted in evidence, the
51 declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. The court may admit evidence of the declarant’s statement or conduct, offered to impeach the declarant, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination.
ARTICLE IX. AUTHENTICATION AND IDENTIFICATION
Rule 901. Authenticating or Identifying Evidence
(a) In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.
(b) Examples. The following are examples only—not a complete list—of evidence that satisfies the requirement:
(1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be.
(2) Nonexpert Opinion About Handwriting. A nonexpert’s opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation.
(3) Comparison by an Expert Witness or the Trier of Fact. A comparison by an expert witness or the trier of fact with a specimen that the court has found is genuine.
(4) Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.
(5) Opinion About a Voice. An opinion identifying a person’s voice—whether heard firsthand or through mechanical or electronic transmission or recording—based on hearing the voice at any time under circumstances that connect it with the alleged speaker.
(6) Evidence About a Telephone Conversation. For a telephone conversation, evidence that a call was made to the number assigned at the time to:
(A) a particular person, if circumstances, including self-identification, show that the person answering was the one called; or
52 (B) a particular business, if the call was made to a business and the call related to business reasonably transacted over the telephone.
(7) Evidence About Public Records. Evidence that:
(A) a document was recorded or filed in a public office as authorized by law; or
(B) a purported public record or statement is from the office where items of this kind are kept.
(8) Evidence About Ancient Documents or Data Compilations. For a document or data compilation, evidence that it:
(A) is in a condition that creates no suspicion about its authenticity;
(B) was in a place where, if authentic, it would likely be; and
(C) is at least 20 years old when offered.
(9) Evidence About a Process or System. Evidence describing a process or system and showing that it produces an accurate result.
(10) Methods Provided by a Statute or Rule. Any method of authentication or identification allowed by a statute or other rule prescribed under statutory authority.
Rule 902. Evidence That Is Self-Authenticating
The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted:
(1) Domestic Public Documents That Are Sealed and Signed. A document that bears:
(A) a seal purporting to be that of the United States; any state, district, commonwealth, territory, or insular possession of the United States; the former Panama Canal Zone; the Trust Territory of the Pacific Islands; a political subdivision of any of these entities; or a department, agency, or officer of any entity named above; and
(B) a signature purporting to be an execution or attestation.
(2) Domestic Public Documents That Are Not Sealed But Are Signed and Certified. A document that bears no seal if:
53 (A) it bears the signature of an officer or employee of an entity named in Rule 902(1)(A); and
(B) another public officer who has a seal and official duties within that same entity certifies under seal—or its equivalent—that the signer has the official capacity and that the signature is genuine.
(3) Foreign Public Documents. A document that purports to be signed or attested by a person who is authorized by a foreign country’s law to do so.
(A) In General. The document must be accompanied by a final certification that certifies the genuineness of the signature and official position of the signer or attester—or of any foreign official whose certificate of genuineness relates to the signature or attestation or is in a chain of certificates of genuineness relating to the signature or attestation. The certification may be made by a secretary of a United States embassy or legation; by a consul general, vice consul, or consular agent of the United States; or by a diplomatic or consular official of the foreign country assigned or accredited to the United States.
(B) If Parties Have Reasonable Opportunity to Investigate. If all parties have been given a reasonable opportunity to investigate the document’s authenticity and accuracy, the court may, for good cause, either:
(i) order that it be treated as presumptively authentic without final certification; or
(ii) allow it to be evidenced by an attested summary with or without final certification.
(C) If a Treaty Abolishes or Displaces the Final Certification Requirement. If the United States and the foreign country in which the official record is located are parties to a treaty or convention that abolishes or displaces the final certification requirement, the record and attestation must be certified under the terms of the treaty or convention.
(4) Certified Copies of Public Records. A copy of an official record—or a copy of a document that was recorded or filed in a public office as authorized by law—if the copy is certified as correct by:
(A) the custodian or another person authorized to make the certification; or
(B) a certificate that complies with Rule 902(1), (2), or (3), a statute, or a rule prescribed under statutory authority.
54 (5) Official Publications. A book, pamphlet, or other publication purporting to be issued by a public authority.
(6) Newspapers and Periodicals. Printed material purporting to be a newspaper or periodical.
(7) Trade Inscriptions and the Like. An inscription, sign, tag, or label purporting to have been affixed in the course of business and indicating origin, ownership, or control.
(8) Acknowledged Documents. A document accompanied by a certificate of acknowledgment that is lawfully executed by a notary public or another officer who is authorized to take acknowledgments.
(9) Commercial Paper and Related Documents. Commercial paper, a signature on it, and related documents, to the extent allowed by general commercial law.
(10) Business Records Accompanied by Affidavit. The original or a copy of a record that meets the requirements of Rule 803(6) or (7), if the record is accompanied by an affidavit that complies with subparagraph (B) of this rule and any other requirements of law, and the record and affidavit are served in accordance with subparagraph (A). For good cause shown, the court may order that a business record be treated as presumptively authentic even if the proponent fails to comply with subparagraph (A).
(A) Service Requirement. The proponent of a record must serve the record and the accompanying affidavit on each other party to the case at least 14 days before trial. The record and affidavit may be served by any method permitted by Rule of Civil Procedure 21a.
(B) Form of Affidavit. An affidavit is sufficient if it includes the following language, but this form is not exclusive. The proponent may use an unsworn declaration made under penalty of perjury in place of an affidavit.
1. I am the custodian of records [or I am an employee or owner] of __________ and am familiar with the manner in which its records are created and maintained by virtue of my duties and responsibilities.
2. Attached are ____ pages of records. These are the original records or exact duplicates of the original records.
3. The records were made at or near the time of each act, event, condition, opinion, or diagnosis set forth. [or It is the regular practice of __________ to make this type of record at or near the
55 time of each act, event, condition, opinion, or diagnosis set forth in the record.] 4. The records were made by, or from information transmitted by, persons with knowledge of the matters set forth. [or It is the regular practice of __________ for this type of record to be made by, or from information transmitted by, persons with knowledge of the matters set forth in them.]
5. The records were kept in the course of regularly conducted business activity. [or It is the regular practice of __________ to keep this type of record in the course of regularly conducted business activity.]
6. It is the regular practice of the business activity to make the records.
(11) Presumptions Under a Statute or Rule. A signature, document, or anything else that a statute or rule prescribed under statutory authority declares to be presumptively or prima facie genuine or authentic.
Rule 903. Subscribing Witness’s Testimony
A subscribing witness’s testimony is necessary to authenticate a writing only if required by the law of the jurisdiction that governs its validity.
ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS
Rule 1001. Definitions That Apply to This Article
In this article:
(a) A “writing” consists of letters, words, numbers, or their equivalent set down in any form.
(b) A “recording” consists of letters, words, numbers, or their equivalent recorded in any manner.
(c) A “photograph” means a photographic image or its equivalent stored in any form.
(d) An “original” of a writing or recording means the writing or recording itself or any counterpart intended to have the same effect by the person who executed or issued it. For electronically stored information, “original” means any printout—or other output
56 readable by sight—if it accurately reflects the information. An “original” of a photograph includes the negative or a print from it. (e) A “duplicate” means a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.
Rule 1002. Requirement of the Original
An original writing, recording, or photograph is required in order to prove its content unless these rules or other law provides otherwise.
Rule 1003. Admissibility of Duplicates
A duplicate is admissible to the same extent as the original unless a question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate.
Rule 1004. Admissibility of Other Evidence of Content
An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if:
(a) all the originals are lost or destroyed, unless the proponent lost or destroyed them in bad faith;
(b) an original cannot be obtained by any available judicial process;
(c) an original is not located in Texas;
(d) the party against whom the original would be offered had control of the original; was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing; or
(e) the writing, recording, or photograph is not closely related to a controlling issue.
Rule 1005. Copies of Public Records to Prove Content
The proponent may use a copy to prove the content of an official record—or of a document that was recorded or filed in a public office as authorized by law—if these conditions are met: the record or document is otherwise admissible; and the copy is certified as correct in accordance with Rule 902(4) or is testified to be correct by a witness who has compared it with the original. If no such copy can be obtained by reasonable diligence, then the proponent may use other evidence to prove the content.
57 Rule 1006. Summaries to Prove Content
The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court.
Rule 1007. Testimony or Statement of a Party to Prove Content
The proponent may prove the content of a writing, recording, or photograph by the testimony, deposition, or written statement of the party against whom the evidence is offered. The proponent need not account for the original.
Rule 1008. Functions of the Court and Jury
Ordinarily, the court determines whether the proponent has fulfilled the factual conditions for admitting other evidence of the content of a writing, recording, or photograph under Rule 1004 or 1005. But in a jury trial, the jury determines—in accordance with Rule 104(b)—any issue about whether:
(a) an asserted writing, recording, or photograph ever existed;
(b) another one produced at the trial or hearing is the original; or
(c) other evidence of content accurately reflects the content.
Rule 1009. Translating a Foreign Language Document
(a) Submitting a Translation. A translation of a foreign language document is admissible if, at least 45 days before trial, the proponent serves on all parties:
(1) the translation and the underlying foreign language document; and
(2) a qualified translator’s affidavit or unsworn declaration that sets forth the translator’s qualifications and certifies that the translation is accurate.
(b) Objection. When objecting to a translation’s accuracy, a party should specifically indicate its inaccuracies and offer an accurate translation. A party must serve the objection on all parties at least 15 days before trial.
58 (c) Effect of Failing to Object or Submit a Conflicting Translation. If the underlying foreign language document is otherwise admissible, the court must admit—and may not allow a party to attack the accuracy of—a translation submitted under subdivision (a) unless the party has:
(1) submitted a conflicting translation under subdivision (a); or
(2) objected to the translation under subdivision (b).
(d) Effect of Objecting or Submitting a Conflicting Translation. If conflicting translations are submitted under subdivision (a) or an objection is made under subdivision (b), the court must determine whether there is a genuine issue about the accuracy of a material part of the translation. If so, the trier of fact must resolve the issue.
(e) Qualified Translator May Testify. Except for subdivision (c), this rule does not preclude a party from offering the testimony of a qualified translator to translate a foreign language document.
(f) Time Limits. On a party’s motion and for good cause, the court may alter this rule’s time limits.
(g) Court-Appointed Translator. If necessary, the court may appoint a qualified translator. The reasonable value of the translator’s services must be taxed as court costs.
59 1 S T C O U R T O F AP P E AL S L O C AL R U L E S
RULE 1. Assignment of Related Cases to and Transfers of Related Cases between the First and Fourteenth Courts of Appeals.
Rule 1.1. Definitions.
(a) "Underlying case" means a trial court case number that is filed in one of the counties that comprise the jurisdiction of the First and Fourteenth Courts of Appeals and is subsequently the subject of either an appeal or original proceeding in the First or Fourteenth Court of Appeals.
(b) "Related" means arising from the same underlying case or a case that has been remanded by either the First or Fourteenth Court of Appeals and includes cases severed from the main case.
(c) "Previously filed" means that a case has been opened at either the First or Fourteenth Court of Appeals and that an appellate case number has been assigned to the underlying case.
Rule 1.2. Assignment of Original Proceedings to either the First or Fourteenth Court of Appeals.
(a) Except as noted below, assignment of original proceedings must be alternated between the First and Fourteenth Courts of Appeals.
(b) During the first six months of a calendar year, relators must first present any original proceeding to the clerk of the First Court of Appeals. During the last six months of a calendar year, relators must first present any original proceeding to the clerk of the Fourteenth Court of Appeals. Hereinafter, the "intake clerk" means the clerk receiving the original proceeding.
(c) The intake clerk must log in each original proceeding sequentially, assigning original proceedings between the First and Fourteenth Courts of Appeals on an alternating basis.
(d) If a related appeal or original proceeding has been previously filed in one of the courts, the intake clerk must assign the original proceeding in the manner provided for in Rule 1.3(a)-(b) below.
Rule 1.3. Notice of and Assignment of Related Cases in Original Proceedings.
(a) At the time an original proceeding is filed in either the First or Fourteenth Court of Appeals, the relator must file a notice indicating whether any related appeal or original proceeding has been previously filed in either the First or Fourteenth Court of Appeals. The notice must include the caption, trial court case number, and appellate court case number of the related appeal or original proceeding.
(b) If any related appeal or original proceeding has been previously filed in or assigned to either the First or Fourteenth Court of Appeals, the clerk of the appellate court receiving the original proceeding must assign it to the court of appeals in which the related appeal or original proceeding was previously filed. (c) If related appeals or original proceedings have been filed in both the First and Fourteenth Courts of Appeals, the clerk of the appellate court receiving the original proceeding must assign it to the court of appeals in which the most recent related appeal or original proceeding was previously filed or assigned.
Rule 1.4. Notice of and Assignment of Related Cases in Appeals.
(a) At the time the notice of appeal is filed in the trial court, the notice of appeal must contain a statement indicating whether a related appeal or original proceeding has been previously filed in either the First or Fourteenth Court of Appeals and must include the caption, trial court case number, and appellate court case number of the related appeal or original proceeding.
(b) If a related appeal or original proceeding has been previously filed in or assigned to either the First or Fourteenth Court of Appeals, the trial court clerk must assign the appeal to the court of appeals in which the related appeal or original proceeding was previously filed, pursuant to TEX. GOV'T CODE ANN. § 22.202(h) (Vernon 2004), which provides for companion cases to be assigned to the same court of appeals
(c) If related appeals or original proceedings have been previously filed in both the First and Fourteenth Courts of Appeals, the trial court clerk must assign the appeal to the court of appeals in which the most recent related appeal or original proceeding was previously filed or assigned, pursuant to TEX. GOV'T CODE ANN. § 22.202(h) (Vernon 2004), which provides for companion cases to be assigned to the same court of appeals.
Rule 1.5. Transfers of Related Cases Between the First and Fourteenth Courts of Appeals.
(a) The First or Fourteenth Court of Appeals may, either sua sponte or on motion of a party, transfer an appeal or an original proceeding to the other Houston court of appeals when a related appeal or original proceeding has been previously filed.
(b) The transferring court must forward the case file, together with a transfer order, to the clerk of the transferee court. The clerk of the transferee court must docket the transferred appeal or original proceeding and must assign it a new appellate case number pursuant to TEX. R. APP. P. 12.1 and 12.2.
Rule 1.6. Assignment of Permissive Appeals to either the First or Fourteenth Court of Appeals.
(a) Except as noted below, assignment of permissive appeals must be alternated between the First and Fourteenth Courts of Appeals.
(b) During the first six months of a calendar year appellants must first present any petition for permission to appeal to the clerk of the First Court of Appeals. During the last six months of a calendar year, appellants must first present any petition for permission to appeal to the clerk of the Fourteenth Court of Appeals. Hereinafter, the "intake clerk" means the clerk receiving the petition for permission to appeal. (c) The intake clerk must log in each petition for permission to appeal sequentially, assigning petitions between the First and Fourteenth Courts of Appeals on an alternating basis.
(d) At the time a petition for permission to appeal is filed, it must contain a statement indicating whether a related appeal or original proceeding has been previously filed in or assigned to either the First or Fourteenth Court of Appeals. If a related appeal or original proceeding has been previously filed in one of the courts, the intake clerk must assign the petition for permission to the court of appeals in which the related appeal or original proceeding was previously filed.
Fernando Haffid Camero v. Samantha Jo Camero (Fernando Haffid Camero v. Samantha Jo Camero) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.