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.