Reverse and Render : Texas Appellate Lawyer & Attorney : Cowles & Thompson Law Firm : Court of Appeals, Texas Supreme Court

On Friday, April 17th and Saturday, April 18th, the Texas Supreme Court Rules Advisory Committee will be meeting to discuss proposed changes to the Texas Rules of Procedure.  Among the proposed changes are changes that will permit electronic filings in the appellate courts.

For more information on the location and time of the meeting, click on this link.

For more information on the agenda and proposed text of the amendments, click on this link.

• Email This
• Print
• Comments
• Trackbacks

The Amarillo Court of Appeals recently confronted an issue not addressed by the appellate rules.  While Rule 38.8(a) applies in the event the appellant fails to file a brief, the rules are silent with respect to an appellee's failure to do so.  The Court weighed its options:

Appellees'  failure to file a brief leaves this Court with several mutually unpleasant options.  On the one hand, we could accept [appellant's] arguments at face value and summarily reverse.  On the other hand, we could abandon our role as impartial jurist and become an advocate for Appellees by advancing arguments in order to affirm.  Neither option is acceptable.

The Court decided to follow other courts of appeals that have faced this dilemma and "conduct an independent analysis of the merits of the appellant's claim of error, limited to the arguments raised by the appellant . . . ."  The Court made clear that by doing so, it was not acting as an advocate for the appellees.  The Court went on to affirm the trial court.  The Court's opinion in Dillard's, Inc. v. Newman can be found at this link.

• Email This
• Print
• Comments
• Trackbacks

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?

• Email This
• Print
• Comments (2)
• Trackbacks

The Houston Fourteenth District Court of Appeals has held that a Relator must challenge all possible grounds supporting a trial court's ruling by its Petition for Writ of Mandamus or the Relator waives its complaint.  In In re TCW Global Project Fund II, Ltd., No. 14-08-00116-CV (Sept. 24, 2008), the Relator filed a Petition for Writ of Mandamus complaining of the trial court's order denying a motion to dismissed based on a forum selection clause.  The Court of Appeals holds that TRAP 52.5's requirement that a Relator "may file a reply addressing any matter in the response" is indistinguishable from TRAP 38.3's language providing that the Appellant "may file a reply brief addressing any matter in the appellant's brief."  The opinion of the court may be found here.

• Email This
• Print
• Comments
• Trackbacks