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The route of a Texas civil appeal and potential procedure pitfalls.
A state court civil appeal in Texas takes the following path:
First, your lawyer must raise a specific and timely objection to a particular event that is occurring in the trial court. This is absolutely crucial to a successful appeal. A basic rule of appellate procedure says that an argument may not be raised on appeal if it was not first argued in the trial court. If your trial lawyer has failed to comply with this rule, there are a few ways around it, but your chances of success are definitely severely reduced. Hootman can explain your options if this rule is violated.
Second, a final judgment is signed by the trial judge. Generally, before a civil appeal may be taken a final judgment must be signed. This is another basic rule of appellate procedure. The court of appeals does not generally have jurisdiction (power) to hear an appeal until there is a signed and final judgment from the trial court.
Third, a timely notice of appeal must be filed. Timely is the key. After a judgment is signed the notice of appeal is filed. The deadline for filing the notice of appeal varies depending on the circumstances of the case. Sometimes the deadline is 20 days from the signing of the judgment or order appealed from. Other times the deadline is 30 days or 90 days. Restricted appeals can be taken 6 months after the order or judgment is signed. There are also limited circumstances when the deadline can be extended. Extreme care must be taken to determine exactly what notice of appeal deadline applies because filing a notice of appeal late is an absolute bar to proceeding with the appeal, even if you have the greatest argument on the planet. Timely is the key, but the form of the notice must also be correct. That is another story.
Fourth, the record must be transferred to the court of appeals. The record is made up of two things: the reporter’s record and the clerk’s record. The “reporter’s record” is what most people call the transcript. The reporter’s record is what the court reporter typed during the trial. The “clerk’s record” is copies of the documents that were filed in the district clerk’s office, but placed into a nice and orderly binder for the court of appeals. The party appealing and his or her lawyer have the responsibility to make sure that the record is properly prepared and filed in the court of appeals. This is very, very important and if not properly done can be the death knell of the appeal.
Fifth, the briefs must be filed. There are, generally speaking, two briefs: the Appellant’s Brief, and the Appellee’s Brief. The appellate briefing is the heart and soul of the appeal. The briefs are where the lion’s share of Tim’s work is put. The appellate briefs explain to the court of appeals why a case should be reversed or affirmed. The briefs cite the relevant law and portions of the record that indicate why a case should be reversed or affirmed. Without a properly written brief, you will never win an appeal. An improperly written brief will cause the court of appeals to affirm a case without even reaching the merits of the argument. This is called “procedural default” and is another basic rule of appellate procedure.
Sixth, oral arguments might be allowed by the court of appeals. Oral arguments are not performed in most cases. Modern courts of appeals are very busy and because of that only select a small portion of their cases for oral argument. If oral argument is not given on your case that does not mean that you will lose your case. Likewise, if oral argument is given on your case that does not mean you will win your case. Oral argument is always very interesting and exciting to the participants, but it’s being granted or not is rarely an indication of whether a case will be reversed or not.
Seventh, the court of appeals issues a written opinion which explains, in detail, why the court reversed or affirmed. A small portion of those opinions are designated for inclusion in the hard-bound law books that make up the law for the State of Texas.
Eighth, the loser may file a petition for review in the Texas Supreme Court. Typically, the loser must file his or her petition for review within 45 days from the court of appeals issuing its opinion and denying any attempts at rehearing. This deadline is very important, and failure to meet the deadline, with narrow exceptions, kills the attempted appeal in the Texas Supreme Court. If the Supreme Court agrees to hear the case (it is not obligated to hear the case—the Supreme Court has “discretionary jurisdiction” meaning it can review the case if it wants to), then briefing deadlines are set, the case is sometimes set for oral arguments, and eventually an opinion is issued. A very small percentage of cases are accepted by the Texas Supreme Court for review.
Ninth, the loser in the Texas Supreme Court may file a petition for certiorari in the United States Supreme court on federal constitutional issues. Typically, the loser must file his petition within 90 days from the last action taken by the Texas Supreme Court. The United States Supreme Court has been accepting less than 100 cases for review the last number of years. Thousands of petitions are filed. Chances of your case being accepted for review by the United States Supreme Court, statistically speaking, are very low. The best chances of winning on appeal, again, statistically speaking, are in the court of appeals, not the Texas Supreme Court or United States Supreme Court.
Contact appellate lawyer Tim Hootman at 713.247.9548 or 713.366.6229 (cell) or send him an email (thootman2000@yahoo.com).
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