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

Must an appellant who seeks to appeal a trial court's order sustaining a challenge to the appellant's affidavit of indigency file a separate notice of appeal?  Answer:  It depends on which court of appeals the appeal is in.

The San Antonio Court of Appeals has held that it is not necessary for an appellant to file a separate notice of appeal.  However, in Basaldua v. Hadden, the court noted that its holding is at odds with the Corpus Christi Court of Appeals, the Texarkana Court of Appeals, and the Waco Court of Appeals--all of which require the filing of a separate notice of appeal.  The San Antonio Court of Appeals joins Amarillo in concluding that no separate notice of appeal is required.  This conflict in appellate decisions seems ripe for resolution by the Texas Supreme Court.

Although the court of appeals allowed Mr. Basaldua to challenge the order sustaining the challenge to his affidavit of indigency, the court upheld the trial court's order.   Noting that it appeared Mr. Basaldua had the capacity to make more income, the court held that the trial court had not abused its discretion in sustaining the contest to the affidavit of indigence.  The court's opinion may be found at this link.

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Following rendition of a final, appealable judgment, does a notice of appeal have to name all preceeding interlocutory orders as a prerequisite to complaining of those orders?  Apparently not.  This has been a question of concern for many appellate practitioners and it's a question that's been percolating around in the courts of appeals.  We now have an answer. 

In Perry v. Cohen, Defendants filed special exceptions to the Plaintiffs' petition, which were sustained and the trial court ordered Plaintiffs to replead.  Subsequently, Plaintiffs filed an amended petition, and Defendants moved to dismiss because the amendment failed to comply with the order on the special exceptions.  The trial court dismissed Plaintiffs' claims.

On appeal, Defendants argued that Plaintiffs had waived their complaints because their notice of appeal listed only the order of dismissal, and not the order sustaining the special exceptions.   The Texas Supreme Court held that Plaintiffs "were required only to state the date of the judgment or order appealed from--in this instance the order dismissing their suit."  The Court's opinion also goes on to examine whether Plaintiffs also preserved error by challenging both orders in their brief and concludes under its rules requiring liberal construction of briefs that Plaintiffs preserved error.  The Court's opinion may be found at this link.

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