Question Regarding Mandate
To all you appellate gurus out there, here's an appellate procedure question: When does the court of appeals' mandate issue when the Texas Supreme Court has denied a petition for review and subsequently denied a motion for rehearing of the petition for review?
TRAP 18 controls issuance of the appellate mandate. The timetable is based upon the steps a party is entitled to take after the court of appeals renders its judgment. But there are no other steps to take after the Texas Supreme Court denies a motion for rehearing of a petition for review. Or are there? Should the mandate issue ten days after the denial of the motion for rehearing of the petition for review (because that's the amount of time added to the expiration of the other steps)? Should its issuance be tied to the timetable for filing of a petition for writ of certiorari in the United States Supreme Court? What do you think?
I would be surprised if an intermediate appellate court waited for the time to run for a U.S. Supreme Court certiorari petition. When the Texas Supreme Court was recently asked to delay issuance of a mandate for that reason, it declined to do so. (That case was Pleasant Glade Assembly of God v. Schubert, No. 05-0916).
In an extraordinary case, you can ask for a delay of the mandate. But unless the mandate will actually moot your underlying controversy (and that's rarely true for cases involving money damages), it may not be worth your time to do so.
Under a literal application of Rule 18, I would say that the mandate could issue 10 days after the Texas Supreme Court denies rehearing. But that's unlikely as a practical matter because of the time it takes for the court of appeals to receive notice that rehearing has been denied, to prepare the mandate, and to issue it.
The last time I was in a situation like this, the court of appeals waited nearly three months to issue the mandate. The safe bet is to file a motion to stay the mandate, but as Don points out, you can't count on it being granted.