Appellate Law

Forthcoming Appellate Rule Changes

By D. Todd Smith

The Texas Supreme Court recently announced changes to several Texas Rules of Appellate Procedure and the adoption of Texas Rule of Judicial Administration 15 .  The rules highlighted below will have the broadest effect in civil cases.  My comments appear in italics.

• TRAP 9.3 reduces the number of copies of certain documents a party must file with the Supreme Court and Court of Criminal Appeals.  Great.  Now please give us e-filing.
  
  
• TRAP 9.8 allows appellate courts to use fictitious names or initials in certain family law cases to protect the privacy of minor children.  A sensible move.
  
  
• TRAP 10.1(a)(5) eliminates the certificate-of-conference requirement for motions for rehearing and motions for en banc reconsideration of panel decisions.  It's about time.  Why did it take more than 10 years after the new TRAPs were adopted to fix this quirk?
  
  
• TRAPs 28.1 and 28.2 establish a more uniform appellate timetable for accelerated appeals and add new procedures governing agreed interlocutory appeals.
  
  
• TRAP 38.1 allows parties to include optional written statements regarding oral argument in their briefs.  A lot of us were doing this anyway.
  
  
• TRAP 39  provides the grounds on which the intermediate appellate courts may determine that oral argument is unnecessary.  While well intentioned, this change is meaningless as a practical matter because the court of appeals doesn't have to give the parties a reason for denying oral argument.
  
  
• TRAP 41.3 addresses the precedent that applies in cases transferred from one court of appeals to another for docket-equalization or other purposes.  The transferee court is to apply the law of the transferor.  I always thought that the courts of appeals were to apply the law of Texas, not their own version of it.  This could get interesting if the transferee and transferor courts are split on a given issue.
  
  
• TRAP 49 governs panel rehearing and en banc reconsideration, including new provisions clarifying the procedures for seeking en banc review.
  
  
• TRAP 52 re-focuses the verification requirement in original proceedings from factual statements in the petition to a certification that the filer has reviewed the petition and concluded that factual statements are supported by record evidence.  This change should allow counsel to do the verifying, which will help speed the process of preparing and filing the petition.
  
  
• RJA 15 addresses appeals from trial courts in counties falling in more than one appellate district (Texarkana and Tyler, and Texarkana and Dallas).  When separate appeals are properly filed in more than one court of appeals and the parties cannot agree to consolidate, the trial-court clerk is to randomly select one of the appellate courts for consolidation.  This rule wouldn't be necessary if the legislature would revamp the appellate districts and eliminate the dual-jurisdiction counties. 

The Court is accepting public comments on the proposed changes through June 30, 2008.  The amendments, with any changes, will take effect September 1.

Full post as published by Texas Appellate Law Blog on April 08, 2008 (boomark / email).