Opinion

Fernando Haffid Camero v. Samantha Jo Camero

Court: Texas Court of Appeals, 1st District (Houston)
Filed: Sep 8, 2016
Status: Published
Cited by: 0 cases
Authority: More cited than 2.9%

holding that inmate’s “notice of appeal was deemed filed on the day he mailed it [35 days after trial court’s judgment was signed], since it was received one day after the 15-day deadline, . . . and a motion for extension was thereby implied. . . .”

How later courts described this case

holding that inmate’s “notice of appeal was deemed filed on the day he mailed it [35 days after trial court’s judgment was signed], since it was received one day after the 15-day deadline, . . . and a motion for extension was thereby implied. . . .”

Written by the judges who cited it.

The opinion

COURT OF APPEALS FOR THE

FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER ON MOTIONS

Appellate case name: Fernando Haffid Camero v. Samantha Jo Camero

Appellate case number: 01-15-00860-CV

Trial court case number: 76468-F

Trial court: 300th District Court of Brazoria County

On October 1, 2015, appellant, Fernando Haffid Camero, proceeding pro se and

incarcerated, mistakenly filed a notice of appeal in this Court, from the August 10, 2015

final decree of divorce, but is deemed filed in the trial court on October 1, 2015. See

TEX. R. APP. P. 25.1(a). Appellant filed no post-judgment motion, making September 9,

2015, his deadline for filing a notice of appeal. See id. 26.1; TEX. R. CIV. P. 329b(a), (g).

Because appellant’s October 1, 2015 notice of appeal may not have been timely filed, this

Court issued an Order and Notice of Intent to Dismiss for Want of Jurisdiction on

January 21, 2016. See TEX. R. APP. P. 26.1, 42.3(a), (c). This Court’s Order further

directed appellant to timely move for extension of time to file his notice of appeal by

providing a reasonable explanation why his notice of appeal should be deemed timely

under the “prisoner mailbox rule,” including any proof of when appellant placed the

notice of appeal in the outgoing prison mailbox. Houser v. McElveen, 243 S.W.3d 646,

646-47 (Tex. 2008) (per curiam); see also Verburgt v. Dorner, 959 S.W.2d 615, 617–18

(Tex. 1997).

“Under the mailbox rule, a document is deemed timely filed if it is sent to the

proper clerk by first-class mail in a properly addressed, stamped envelope on or before

the last day for filing and is received not more than ten days beyond the filing deadline.”

Glover v. Berleth, No. 01-09-00679-CV, 2012 WL 114200, at *2 (Tex. App.—Houston

[1st Dist.] Jan. 12, 2012, no pet.) (mem. op.) (citing TEX. R. APP. P. 9.2(b)(1)); see also

Ramos v. Richardson, 228 S.W.3d 671, 673 (Tex. 2007) (per curiam) (noting that

appellant has burden of “providing some measure of proof that [his] notice[] of appeal

w[as] placed in the United States mail on or before [the deadline],” such as “record in the

form of the filing letter accompanying the [appellant’s] notice[] of appeal” stating the

date the notice of appeal was placed in the “outgoing prison mailbox.”). Under the

“prisoner mailbox rule,” the “pleadings of pro se inmates shall be deemed filed at the

time they are delivered to prison authorities for forwarding to the court clerk.” Campbell

v. State, 320 S.W.3d 338, 342, 344 (Tex. Crim. App. 2010).

On August 26, 2016, appellant moved for extension of time to file his pro se brief-

affidavit, with a three-page pro se brief/affidavit filed in this Court addressing the merits

of his appeal. 1 Appellant also attached two exhibits to his brief, Step 1 and Step 2

offender grievance forms alleging that his legal paperwork was temporarily confiscated

by prison staff on August 24, 2015, and not all of it was returned, which may have caused

his appellate deadline to expire.

On August 31, 2016, appellant filed a letter in this Court, dated August 24, 2016,

claiming that he had provided proof of when he placed his notice of appeal in the

outgoing prison mailbox by referring to the Step 1 and 2 grievances he previously

submitted. In addition, appellant attached two other exhibits, the first was a letter from

the district clerk, dated September 30, 2015, stating that she had received appellant’s

September 19, 2015 cover letter, but that he had failed to include the notice of appeal.

The second exhibit was appellant’s one-page cover letter entitled “Notice To Appeal,”

dated September 19, 2015, and postmarked September 22, 2015, stating that he was

enclosing his notice of appeal, but it included no separate notice of appeal.

This Court construes appellant’s August 31, 2016 letter as his letter-motion for

extension of time to file his notice of appeal because it attaches exhibits to support that

motion, and refers to the prior August 26, 2016 pro se brief/affidavit and Step 1 and 2

exhibits, and considers all as proof for his motion. See Glover, 2012 WL 114200, at *2

(stating that “Rule 9.2(b)(2) of the Texas Rules of Appellate Procedure, entitled ‘Proof of

Mailing,’ identifies items that an appellate court will accept as conclusive proof of the

date of mailing, and expressly permits that an appellate court may consider other proof.”)

(citation omitted). This Court further construes appellant’s pro se cover letter, dated

September 19, 2015, as his notice of appeal because he provided proof of when he placed

the notice of appeal in the outgoing prison mailbox as it was postmarked on September

22, 2015. See id. Also, appellant titled his cover letter “Notice To Appeal,” stated that

he was enclosing his notice of appeal, cited the underlying trial court cause number and

divorce decree, and addressed it to the district clerk, indicating his intention to appeal.

In this case, appellant’s cover letter “Notice To Appeal,” postmarked September

22, 2015, was mailed by prison staff to the district clerk before the last day for filing,

On August 18, 2016, this Court granted appellant’s third extension of time to file his pro

se brief-affidavit in support of his until September 14, 2016. On August 31, 2016, the

Clerk of this Court retroactively granted appellant’s fourth motion for extension of time

to file his pro se brief-affidavit until August 26, 2016, because he included a brief with

the motion, both dated August 23, 2016.

which was September 24, 2015, including the fifteen-day grace period under rule 26.3(a),

implying a motion for extension of time to file a notice of appeal. See Houser, 243

S.W.3d at 646 (holding that inmate’s “notice of appeal was deemed filed on the day he

mailed it [35 days after trial court’s judgment was signed], since it was received one day

after the 15-day deadline, . . . and a motion for extension was thereby implied. . . .”)

(internal citations omitted); see also McCray v. Mulder, No. 05–08–00420–CV, 2008 WL

2600700, at *1 (Tex. App.—Dallas July 2, 2008, pet. denied) (per curiam) (mem. op.)

(noting that “the notice of appeal [in Houser] was received by the trial court clerk on the

sixteenth day after it was originally due, which was within ten days of the date it was due

under rule 26.3(a).”) (citation omitted). Although appellant’s separate notice of appeal

was not attached to his September 19, 2015 cover letter, his “Notice To Appeal,” dated

September 28, 2015, was mistakenly filed in this Court on October 1, 2015, and deemed

filed the same day with the trial court. See TEX. R. APP. P. 25.1(a). Thus, appellant’s

“Notice To Appeal” was deemed filed on October 1, 2015, which means it was “received

not more than ten days beyond the filing deadline.” Ramos, 228 S.W.3d at 673.

Accordingly, appellant’s August 31, 2016 letter-motion for extension of time to

file his notice of appeal is GRANTED under the “prisoner mailbox rule,” and we have

jurisdiction to consider his appeal on the merits. See TEX. R. APP. P. 9.2(b), 10.5(b),

26.3(b); Houser, 243 S.W.3d at 646; Ramos, 228 S.W.3d at 673; see also Glover, 2012

WL 114200, at *3 (concluding that appellant’s notice of appeal was timely filed under

the mailbox rule and that court of appeals had jurisdiction to consider merits of appeal).

Because both appellant’s pro se brief, filed August 26, 2016, and his pro se

supplemental brief, filed on September 1, 2016, appear to address the merits of his

divorce appeal, appellee’s brief, if any, is ORDERED to be filed within 30 days of the

date of this order. See TEX. R. APP. P. 38.6(b), (d). Appellant’s reply brief, if any, must

be filed within 20 days after the filing date of appellee’s brief. See id. 38.6(c).

Finally, because appellant is a pro se inmate and submitted a letter-motion

requesting a copy of this Court’s local rules, local procedure and evidence rules, filed in

this Court on September 1, 2016, his letter-motion is GRANTED for appellant for his

reply brief, if any. See TEX. R. APP. P. 38.3. The Clerk of this Court is directed to mail a

copy of this Court’s Local Rules, the Texas Rules of Appellate Procedure, and the Texas

Rules of Evidence to appellant within 5 days of this order.

It is so ORDERED.

Judge’s signature: /s/ Laura Carter Higley

x Acting individually  Acting for the Court

Date: September 8, 2016

TEXAS RULES OF APPELLATE PROCEDURE

Table of Contents

SECTION ONE. (c) Where to File.

GENERAL PROVISIONS (d) Order of the Court.

Rule 1. Scope of Rules; Local Rules of Courts of Rule 5. Fees in Civil Cases

Appeals

Rule 6. Representation by Counsel

1.1. Scope.

6.1. Lead Counsel

1.2. Local Rules (a) For Appellant.

(a) Promulgation. (b) For a Party Other Than Appellant.

(b) Copies. (c) How to Designate.

6.2. Appearance of Other Attorneys

Rule 2. Suspension of Rules

6.3. To Whom Communications Sent

Rule 3. Definitions; Uniform Terminology

6.4. Nonrepresentation Notice

3.1. Definitions (a) In General.

(b) Appointed Counsel.

3.2. Uniform Terminology in Criminal

Cases 6.5. Withdrawal

(a) Contents of Motion.

Rule 4. Time and Notice Provisions (b) Delivery to Party.

4.1. Computing Time (d) Exception for Substitution of

(a) In General. Counsel.

(b) Clerk's Office Closed or

Inaccessible. 6.6. Agreements of Parties or Counsel

4.2. No Notice of Trial Court’s Judgment Rule 7. Substituting Parties

in Civil Case

(a) Additional Time to File Documents. 7.1. Parties Who Are Not Public Officers

(1) In general. (a) Death of a Party.

(2) Exception for restricted appeal. (1) Civil Cases.

(b) Procedure to Gain Additional Time. (2) Criminal Cases.

4.3. Periods Affected by Modified 7.2. Public Officers

Judgment in Civil Case (a) Automatic Substitution of Officer.

(a) During Plenary-Power Period. (b) Abatement.

(b) After Plenary Power Expires.

Rule 8. Bankruptcy in Civil Cases

4.4. Periods Affected When Process

Served by Publication 8.1. Notice of Bankruptcy

4.5. No Notice of Judgment or Order of 8.2. Effect of Bankruptcy

Appellate Court; Effect on Time to

File Certain Documents 8.3. Motion to Reinstate or Sever Appeal

(a) Additional Time to File Documents. Suspended by Bankruptcy

(b) Procedure to Gain Additional Time. (a) Motion to Reinstate.

(b) Motion to Sever. Civil Cases

(a) Sensitive Data Defined.

Rule 9. Documents Generally (b) Filing of Documents Containing

Sensitive Data Prohibited.

9.1. Signing (c) Redaction of Sensitive Data;

(a) Represented Parties. Retention Required.

(b) Unrepresented Parties. (d) Notice to Clerk.

9.2. Filing 9.10. Privacy Protection for Documents Filed in

(a) With Whom. Criminal Cases

(b) Filing by Mail. (a) Sensitive Data Defined.

(1) Timely Filing. (b) Redacted Filings.

(2) Proof of Mailing. (c) Exemptions from the Redaction

(d) Redaction Procedures.

9.3. Number of Copies; Electronic Copies (e) Certification.

(a) Courts of Appeals. (f) Reference List.

(b) Supreme Court and Court of (g) Sealed materials.

Criminal Appeals. (h) Waiver of Protection of Identifiers.

Rule 10. Motions in the Appellate Courts

9.4. Form

(a) Printing. 10.1. Contents of Motions; Response

(b) Paper Type and Size. (a) Motion.

(d) Spacing.

(e) Typeface. 10.2. Evidence on Motions

(f) Binding and Covering.

(g) Contents of Cover. 10.3. Determining Motions

(h) Appendix. (a) Time for Determination.

(i) Length. (b) Reconsideration.

(j) Electronically Filed Documents.

(k) Nonconforming Documents. 10.4. Power of Panel or Single Justice or

Judge to Entertain Motions

9.5. Service (a) Single Justice.

(a) Service of All Documents Required. (b) Panel.

(b) Manner of Service.

(d) Proof of Service. (a) Motions Relating to Informalities in

(e) Certificate Requirements. the Record.

(b) Motions to Extend Time.

9.6. Communications with the Court (1) Contents of Motion in General.

(2) Contents of Motion to Extend

9.7. Adoption by Reference Time to File Notice of Appeal.

(3) Contents of Motion to Extend

9.8. Protection of Minor’s Identity in Time to File Petition for

Parental-Rights Termination Cases Review or Petition for

and Juvenile Court Cases Discretionary Review.

(a) Alias Defined.

(b) Parental-Rights Termination Cases. Rule 11. Amicus Curiae Briefs

(d) No Alteration of Appellate Record. Rule 12. Duties of Appellate Clerk

9.9. Privacy Protection for Documents Filed in 12.1. Docketing the Case

12.2. Docket Numbers 15.2. Appearance Without Service; Actual

(a) Numbering System. Knowledge

(b) Numbering Order.

(d) Appeals Not Yet Filed. Judges

12.3. Custody of Papers 16.1. Grounds for Disqualification

12.4. Withdrawing Papers 16.2. Grounds for Recusal

12.5. Clerk's Duty to Account 16.3. Procedure for Recusal

(a) Motion.

12.6. Notices of Court’s Judgments and (b) Decision.

Orders (c) Appeal.

Rule 13. Court Reporters and Court Recorders Rule 17. Court of Appeals Unable to Take

Immediate Action

13.1. Duties of Court Reporters and

Recorders 17.1. Inability to Act

13.2. Additional Duties of Court Recorder 17.2. Nearest Available Court of Appeals

13.3. Priorities of Reporters 17.3. Further Proceedings

13.4. Report of Reporters Rule 18. Mandate

13.5. Appointing Deputy Reporter 18.1. Issuance

(a) In the Court of Appeals.

13.6. Filing of Notes in a Criminal Case (b) In the Supreme Court and the Court

of Criminal Appeals.

Rule 14. Recording and Broadcasting Court (c) Agreement to Issue.

Proceedings

18.2. Stay of Mandate

14.1. Recording and Broadcasting

Permitted 18.3. Trial Court Case Number

14.2. Procedure 18.4. Filing of Mandate

(a) Request to cover Court proceeding.

(b) Response. 18.5. Costs

(d) Decision of Court. 18.6. Mandate in Accelerated Appeals

14.3. Equipment and Personnel 18.7. Recall of Mandate

14.4. Enforcement Rule 19. Plenary Power of the Courts of Appeals

and Expiration of Term

Rule 15. Issuance of Writ or Process by Appellate

Court 19.1. Plenary Power of Courts of Appeals

15.1. In General 19.2. Plenary Power Continues After

(a) Signature Under Seal. Petition Filed

(b) To Whom Directed; by Whom

Served. 19.3. Proceedings After Plenary Power

Simultaneous Writs.

iii

19.4. Expiration of Term 22.3. Time to File Motion

Rule 20. When Party is Indigent 22.4. Court's Ruling

(a) Time to Rule; Form of Ruling.

20.1. Civil Cases (b) Failure to Rule.

(a) Costs Defined.

(b) When a Statement Was Filed in the 22.5. Effect of Denying

Trial Court.

(1) General Rule; Status in Trial 22.6. Effect of Granting

Court Carries Forward. (a) Defendant Restored.

(2) Establishing the Right to (b) Defendant Discharged or

Proceed Under the General Remanded.

Rule.

(3) Exception; Material Change in Rule 23. Nunc Pro Tunc Proceedings in Criminal

Circumstances. Cases

Trial Court. 23.1. Judgment and Sentence

20.2. Criminal Cases 23.2. Credit on Sentence

SECTION TWO. APPEALS FROM TRIAL Rule 24. Suspension of Enforcement of Judgment

COURT JUDGMENTS AND ORDERS Pending Appeal in Civil Cases

Rule 21. New Trials in Criminal Cases 24.1. Suspension of Enforcement

(a) Methods.

21.1. Definitions (b) Bonds.

(a) New Trial. (c) Deposit in Lieu of Bond.

(b) New Trial on Punishment. (1) Types of Deposits.

(2) Amount of Deposit.

21.2. When Motion for New Trial Required (3) Clerk’s Duties; Interest.

(d) Conditions of Liability.

21.3. Grounds (e) Orders of Trial Court.

(f) Effect of Supersedeas.

21.4. Time to File and Amend Motion

(a) To file. 24.2. Amount of Bond, Deposit, or Security

(b) To Amend. (a) Type of Judgment.

(1) For Recovery of Money.

21.5. State May Controvert; Effect (2) For Recovery of Property.

(3) Other Judgment.

21.6. Time to Present (4) Conservatorship or Custody.

(5) For a Governmental Entity.

21.7. Types of Evidence Allowed at Hearing (b) Lesser Amount.

21.8. Court's Ruling (1) Judgment Debtor's Affidavit

(a) Time to Rule. Required; Contents; Prima

(b) Ruling. Facie Evidence.

(3) Hearing; Burden of Proof;

21.9. Granting a New Trial Findings; Additional Security.

(d) Injunction.

Rule 22. Arrest of Judgment in Criminal Cases

24.3. Continuing Trial Court Jurisdiction;

22.1. Definition Duties of Judgment Debtor

(a) Continuing Jurisdiction.

22.2. Grounds (b) Duties of Judgment Debtor.

24.4. Appellate Review

(a) Motions; Review. 28.1. Accelerated Appeals

(b) Grounds of Review. (a) Types of Accelerated Appeals.

(d) Action by Appellate Court. (c) Appeals of Interlocutory Orders.

(e) Effect of Ruling. (d) Quo Warranto Appeals.

(e) Record and Briefs.

Rule 25. Perfecting Appeal

28.2. Agreed Interlocutory Appeals in Civil

25.1. Civil Cases. Cases

(a) Notice of Appeal. (a) Perfecting Appeal.

(b) Jurisdiction of Appellate Court. (b) Other Requirements.

(d) Contents of Notice. (d) Determination of Jurisdiction.

(e) Service of Notice. (e) Record; Briefs.

(f) Clerk’s Duties. (f) No Automatic Stay of Proceedings

(g) Amending the Notice. in Trial Court.

(h) Enforcement of Judgment Not

Suspended by Appeal. 28.3. Permissive Appeals in Civil Cases.

(a) Petition Required.

25.2. Criminal Cases (b) Where Filed.

(a) Rights to Appeal. (c) When Filed.

(1) Of the State. (d) Extension of Time to File Petition.

(2) Of the Defendant. (e) Contents.

(b) Perfection of Appeal. (f) Response; Reply; Cross-Petition;

(d) Certification of Defendant's Right of (g) Length of Petition, Cross-Petition,

Appeal. Response, and Reply.

(e) Clerk's Duties. (h) Service.

(f) Amending the Notice. (i) Docketing Statement.

(g) Effect of Appeal. (j) Time for Determination.

(h) Advice of Right of Appeal. (k) When Petition Granted.

Rule 26. Time to Perfect Appeal 28.4. Accelerated Appeals in Parental

Termination and Child Protection

26.1. Civil Cases Cases

(a) Application and Definitions.

26.2. Criminal Cases (b) Appellate Record.

(a) By the Defendant. (c) Remand for New Trial.

(b) By the State.

Rule 29. Orders Pending Interlocutory Appeal in

26.3. Extension of Time Civil Cases

Rule 27. Premature Filings 29.1. Effect of Appeal

27.1. Prematurely Filed Notice of Appeal 29.2. Security

(a) Civil Cases.

(b) Criminal Cases. 29.3. Temporary Orders of Appellate Court

27.2. Other Premature Actions 29.4. Enforcement of Temporary Orders

27.3. If Appealed Order Modified or 29.5. Further Proceedings in Trial Court

Vacated

29.6. Review of Further Orders

Rule 28. Accelerated, Agreed, and Permissive (a) Motion to Review Further Orders.

Appeals in Civil Cases (b) Record.

Rule 34. Appellate Record

Rule 30. Restricted Appeal to Court of Appeals in

Civil Cases 34.1. Contents

Rule 31. Appeals in Habeas Corpus, Bail, and 34.2. Agreed Record

Extradition Proceedings in Criminal Cases

34.3. Agreed Statement of the Case

31.1. Filing the Record; Submission

34.4. Form

31.2. Hearing

34.5. Clerk’s Record

31.3. Orders on Appeal (a) Contents.

(b) Request for Additional Items.

31.4. Stay of Mandate (1) Time for Request.

(a) When Motion for Stay Required. (2) Request Must Be Specific.

(b) Determination of the motion. (3) Requesting Unnecessary Items.

31.5. Judgment Conclusive (d) Defects or Inaccuracies.

(e) Clerk’s Record Lost or Destroyed.

31.6. Defendant Detained by Other Than (f) Original Documents.

Officer (g) Additional Copies of Clerk’s Record

in Criminal Cases.

31.7. Judgment to be Certified (h) Clerk May Consult With Parties.

Rule 32. Docketing Statement 34.6. Reporter’s Record

(a) Contents.

32.1. Civil Cases (1) Stenographic Recording.

(2) Electronic Recording.

32.2. Criminal Cases (b) Request for Preparation.

(1) Request to Court Reporter.

32.3. Supplemental Statements (2) Filing.

(3) Failure to Timely Request.

32.4. Purpose of Statement (c) Partial Reporter’s Record.

(1) Effect on Appellate Points or

Rule 33. Preservation of Appellate Complaints Issues.

(2) Other Parties May Designate

33.1. Preservation; How Shown Additions.

(a) In General. (3) Costs; Requesting Unnecessary

(b) Ruling by Operation of Law. Matter.

Order Not Required. (5) Criminal Cases.

(d) Sufficiency of Evidence Complaints (d) Supplementation.

in Nonjury Cases. (e) Inaccuracies in the Reporter’s

Record.

33.2. Formal Bills of Exception (1) Correction of Inaccuracies by

(a) Form. Agreement.

(b) Evidence. (2) Correction of Inaccuracies by

(d) Conflict. (3) Correction After Filing in

(e) Time to File. Appellate Court.

(1) Civil Cases. (f) Reporter’s Record Lost or

(2) Criminal Cases. Destroyed.

(3) Extension of Time. (g) Original Exhibits.

(f) Inclusion in Clerk’s Record. (1) Reporter May Use in

Preparing Reporter’s Record.

(2) Use of Original Exhibits by (g) Statement of Facts.

Appellate Court. (h) Summary of the Argument.

(h) Additional Copies of Reporter’s (i) Argument.

Record in Criminal Cases. (j) Prayer.

(i) Supreme Court and Court of (k) Appendix in Civil Cases.

Criminal Appeals May Set Fee. (1) Necessary Contents.

(2) Optional Contents.

Rule 35. Time to File Record; Responsibility for

Filing Record 38.2. Appellee's Brief

(a) Form of Brief.

35.1. Civil Cases (b) Cross-Points.

(1) Judgment Notwithstanding the

35.2. Criminal Cases Verdict.

(2) When Evidentiary Hearing

35.3. Responsibility for Filing Record Needed.

(a) Clerk’s Record.

(b) Reporter’s Record. 38.3. Reply Brief

Filed. 38.4. Deleted

Rule 36. Agency Record in Administrative Appeals 38.5. Appendix for Cases Recorded

Electronically

36.1. Scope (a) Appendix.

(1) In General.

36.2. Inclusion in Appellate Record (2) Repetition Not Required.

(3) Form.

36.3. Correcting the Record (4) Notice.

(a) Correction by Agreement. (b) Presumptions.

(b) Correction by Trial Court. (c) Supplemental Appendix.

(d) Inability to Pay.

Rule 37. Duties of the Appellate Clerk on Receiving (e) Inaccuracies.

the Notice of Appeal and Record (1) Correction by Agreement.

(2) Correction by Appellate or

37.1. On Receiving the Notice of Appeal Trial Court.

(f) Costs.

37.2. On Receiving the Record

38.6. Time to File Briefs

37.3. If No Record Filed (a) Appellant's Filing Date.

(a) Notice of late record. (b) Appellee's Filing Date.

(1) Civil Cases. (c) Filing Date for Reply Brief.

(2) Criminal Cases. (d) Modifications of Filing Time.

(b) If No Clerk’s Record Filed Due to

Appellant's Fault. 38.7. Amendment or Supplementation

Due to Appellant's Fault. 38.8. Failure of Appellant to File Brief

(a) Civil Cases.

Rule 38. Requisites of Briefs (b) Criminal Cases.

(1) Effect.

38.1. Appellant's Brief (2) Notice.

(a) Identity of Parties and Counsel. (3) Hearing.

(b) Table of Contents. (4) Appellate Court Action.

(d) Statement of the Case. 38.9. Briefing Rules to be Construed

(e) Any Statement Regarding Oral Liberally

Argument. (a) Formal Defects.

(f) Issues Presented. (b) Substantive Defects.

vii

42.3. Involuntary Dismissal in Civil Cases

Rule 39. Oral Argument; Decision Without

Argument 42.4. Involuntary Dismissal in Criminal

Cases

39.1. Right to Oral Argument (a) Timely Return to Custody;

Reinstatement.

39.2. Purpose of Argument (b) Life Sentence.

39.3. Time Allowed Rule 43. Judgment of the Court of Appeals

39.4. Number of Counsel 43.1. Time

39.5. Argument by Amicus 43.2. Types of Judgment

39.6. When Only One Party Files a Brief 43.3. Rendition Appropriate Unless

Remand Necessary

39.7. Request and Waiver

43.4. Judgment for Costs in Civil Cases

39.8. Clerk’s Notice

43.5. Judgment Against Sureties in Civil

Rule 40. ORDER OF DECISION Cases

40.1. Civil Cases 43.6. Other Orders

40.2. Criminal Cases Rule 44. Reversible Error

Rule 41. Panel and En Banc Decision 44.1. Reversible Error in Civil Cases

(a) Standard for Reversible Error.

41.1. Decision by Panel (b) Error Affecting Only Part of Case.

(a) Constitution of Panel.

(b) When Panel Cannot Agree on 44.2. Reversible Error in Criminal Cases

Judgment. (a) Constitutional Error.

Judgment. (c) Presumptions.

41.2. Decision by En Banc Court 44.3. Defects in Procedure

(a) Constitution of En Banc Court.

(b) When En Banc Court Cannot Agree 44.4. Remediable Error of the Trial Court

on Judgment. (a) Generally.

Remediable.

41.3. Precedent in Transferred Cases.

Rule 45. Damages for Frivolous Appeals in Civil

Rule 42. Dismissal Cases

42.1. Voluntary Dismissal in Civil Cases Rule 46. Remittitur in Civil Cases

(a) On Motion or By Agreement.

(1) On Motion of Appellant. 46.1. Remittitur After Appeal Perfected

(2) By Agreement. Trial

(b) Partial Disposition.

(d) Costs.

46.3. Suggestion of Remittitur by Court of

42.2. Voluntary Dismissal in Criminal Appeals

Cases

46.4. Refusal to Remit Must Not Be

viii

Mentioned in Later

49.8. Extensions of Time

46.5. Voluntary Remittitur

49.9. Not Required for Review

Rule 47. Opinions, Publication, and Citation

49.10. Deleted

47.1. Written Opinions

49.11. Relationship to Petition for Review

47.2. Designation and Signing of Opinions;

Participating Justices 49.12. Certificate of Conference Not

(a) Civil and Criminal Cases. Required

(b) Criminal Cases.

47.3. Distribution of Opinions Rule 51. Enforcement of Judgments After Mandate

47.4. Memorandum Opinions 51.1. Civil Cases

(a) Statement of Costs.

47.5. Concurring and Dissenting Opinions (b) Enforcement of Judgment.

47.6. Change in Designation by En Banc 51.2. Criminal Cases

Court (a) Clerk’s Duties.

(b) Judgment of Affirmance; Defendant

47.7. Citation of Unpublished Opinions Not in Custody.

(a) Criminal Cases. (1) Capias to Be Issued.

(b) Civil Cases. (2) Contents of Capias.

(3) Sheriff's Duties.

Rule 48. Copy of Opinion and Judgment to (c) Judgment of Reversal.

Interested Parties and Other Courts (1) When new Trial Ordered.

(2) When Case Dismissed.

48.1. Mailing Opinion and Judgment in All (d) Judgment of Acquittal.

Cases

SECTION THREE. ORIGINAL PROCEEDINGS

48.2. Additional Recipients in Criminal IN THE SUPREME COURT AND THE

Cases COURTS OF APPEALS

48.3. Filing Opinion and Judgment Rule 52. Original Proceedings

48.4. Opinion Sent to Criminal Defendant 52.1. Commencement

Rule 49. Motion for Rehearing and En Banc 52.2. Designation of Parties

Reconsideration

52.3. Form and Contents of Petition

49.1. Further Motion for Rehearing (a) Identity of Parties and Counsel.

(b) Table of Contents.

49.2. Response (c) Index of Authorities.

(d) Statement of the Case.

49.3. Decision on Motion (e) Statement of Jurisdiction.

(f) Issues Presented.

49.4. Accelerated Appeals. (g) Statement of Facts.

(h) Argument.

49.5. Further Motion for Rehearing (i) Prayer.

(j) Certification.

49.6. Amendments (k) Appendix.

(1) Necessary Contents.

49.7. En Banc Reconsideration (2) Optional Contents.

53.5. Petitioner's Reply to Response

52.4. Response

53.6. Deleted

52.5. Relator’s Reply to Response

53.7. Time and Place of Filing

52.6. Deleted (a) Petition.

(b) Premature Filing.

52.7. Record (c) Petitions Filed by Other Parties.

(a) Filing by Relator Required. (d) Response.

(b) Supplementation Permitted. (e) Reply.

(g) Petition Filed in Court of Appeals.

52.8. Action on Petition

(a) Relief Denied. 53.8. Amendment

(b) Interim Action.

(d) Opinion.

Rule 54. Filing the Record

52.9. Motion for Rehearing

54.1. Request for Record

52.10. Temporary Relief

(a) Motion for Temporary Relief; 54.2. Duty of Court of Appeals Clerk

Certificate of Compliance. (a) Request for Record.

(b) Grant of Temporary Relief. (b) Nondocumentary Exhibits.

54.3. Expenses

52.11. Groundless Petition or Misleading

Statement or Record 54.4. Duty of Supreme Court Clerk

SECTION FOUR. PROCEEDINGS IN THE Rule 55. Briefs on the Merits

SUPREME COURT

55.1. Request by Court

Rule 53. Petition for Review

55.2. Petitioner's Brief on the Merits

53.1. Method of Review (a) Identity of Parties and Counsel.

(b) Table of Contents.

53.2. Contents of Petition (c) Index of Authorities.

(a) Identity of Parties and Counsel. (d) Statement of the Case.

(b) Table of Contents. (e) Statement of Jurisdiction.

(d) Statement of the Case. (g) Statement of Facts.

(e) Statement of Jurisdiction. (h) Summary of the Argument.

(f) Issues Presented. (i) Argument.

(g) Statement of Facts. (j) Prayer.

(h) Summary of the Argument.

(i) Argument. 55.3. Respondent's Brief

(j) Prayer.

(k) Appendix. 55.4. Petitioner's Brief in Reply

(1) Necessary Contents.

(2) Optional Contents. 55.5. Reliance on Prior Brief

53.3. Response to Petition for Review 55.6. Deleted

53.4. Points Not Considered in Court of 55.7. Time and Place of Filing; Extension of

Appeals Time

55.8. Amendment

58.9. Opinion on Certified Questions

55.9. Court May Require Revision

58.10. Answering Certified Questions

Rule 56. Orders on Petition for Review

Rule 59. Submission and Argument

56.1. Orders on Petition for Review

(a) Considerations in Granting Review. 59.1. Submission Without Argument

(b) Petition Denied or Dismissed.

(1) “Denied.” 59.2. Submission With Argument

(2) “Dismissed w.o.j.”

(d) Improvident Grant.

59.4. Time for Argument

56.2. Moot Cases

59.5. Number of Counsel

56.3. Settled Cases

59.6. Argument by Amicus Curiae

56.4. Notice to Parties

Rule 60. Judgments in the Supreme Court

56.5. Return of Documents to Court of

Appeals 60.1. Announcement of Judgments

Rule 57. Direct Appeals to the Supreme Court 60.2. Types of Judgment

57.1. Application 60.3. Remand in the Interest of Justice

57.2. Jurisdiction 60.4. Judgment for Costs

57.3. Statement of Jurisdiction 60.5. Judgment Against Sureties

57.4. Preliminary Ruling on Jurisdiction 60.6. Other Orders

57.5. Direct Appeal Exclusive While Rule 61. Reversible Error

Pending

61.1. Standard for Reversible Error

Rule 58. Certification of Questions of Law by

United States Courts 61.2. Error Affecting Only Part of the Case

58.1. Certification 61.3. Defects in Procedure

58.2. Contents of the Certification Order 61.4. Remediable Error of the Trial Court

or Court of Appeals

58.3. Transmission of Certification Order (a) Generally.

(b) Supreme Court Direction if Error

58.4. Transmission of Record Remediable.

58.5. Fees and Costs Rule 62. Damages for Frivolous Appeals

58.6. Notice Rule 63. Opinions; Copy of Opinion and Judgment

to Interested Parties and Other Courts

58.7. Briefs and Oral Argument

(a) Briefs. Rule 64. Motion for Rehearing

(b) Oral Argument.

64.1. Time for Filing

58.8. Intervention by the State

64.2. Contents (d) Statement of the Case.

(e) Statement of Procedural History.

64.3. Response and Decision (f) Grounds for Review.

(g) Argument.

64.4. Second Motion (h) Prayer for Relief.

(i) Appendix.

64.5. Extensions of Time

68.5. Deleted

64.6. Deleted

68.6. Nonconforming Petition

Rule 65. Enforcement of Judgment after Mandate

68.7. Court of Appeals Clerk's Duties

65.1. Statement of Costs (a) On filing of the Petition.

(b) Reply.

65.2. Enforcement of Judgment (c) Sending Petition and Reply to Court

of Criminal Appeals.

SECTION FIVE. PROCEEDINGS IN THE 68.8. Court of Criminal Appeals Clerk’s

COURT OF CRIMINAL APPEALS Duties

Rule 66. Discretionary Review in General 68.9. Reply

66.1. With or Without Petition 68.10. Amendment

66.2. Not a Matter of Right 68.11. Service on State Prosecuting Attorney

66.3. Reasons for Granting Review Rule 69. Action of Court on Petition for

Discretionary Review and After Granting Review

66.4. Documents to Aid Decision

(a) Acquiring Documents. 69.1. Granting or Refusal

(b) Return of Documents.

69.2. Setting Case for Submission

Rule 67. Discretionary Review Without Petition

69.3. Improvident Grant of Review

67.1. Four Judges' Vote

69.4. Clerk's Duties

67.2. Order Staying Mandate (a) On Refusal or Dismissal.

(b) On Granting Review.

67.3. Time to Issue Mandate Extended

Rule 70. Brief on the Merits

Rule 68. Discretionary Review with Petition

70.1. Initial Brief

68.1. Generally

70.2. Reply Brief

68.2. Time to File Petition

(a) First Petition. 70.3. Brief Contents and Form

(b) Subsequent Petition.

68.3. Where to File Petition Rule 71. Direct Appeals

68.4. Contents of Petition 71.1. Direct Appeal

(a) Table of Contents.

(b) Index of Authorities. 71.2. Record

Argument. 71.3. Briefs

xii

Submission

71.4. Additional Briefs

75.2. Request for Argument

Rule 72. Extraordinary Matters

75.3. Oral Argument

72.1. Leave to File

Rule 76. Submissions En Banc

72.2. Disposition

Rule 77. Opinions

Rule 73. Postconviction Applications for Writs of

Habeas Corpus 77.1. Generally

73.1. Form for Application Filed Under 77.2. Signing; Publication

Article 11.07 of the Code of Criminal

Procedure 77.3. Unpublished Opinions

73.2. Noncompliant Applications 77.4. Copies

73.3. State’s Response Rule 78. Judgments in the Court of Criminal

Appeals

73.4. Filing and Transmission of Habeas

Corpus 78.1. Types of Judgment

73.5. Time Frame for Resolution of Claims 78.2. Remand in the Interests of Justice

Raised in Application

78.3. Other Orders

73.6. Action on Application

Rule 79. Rehearings

Rule 74. Review of Certified State Criminal-Law

Questions 79.1. Motion for Rehearing

74.1. Certification 79.2. Contents

74.2. Contents of the Certification Order 79.3. Amendments

74.3. Transmission of Certification Order 79.4. Decision

74.4. Transmission of Record 79.5. Further Motion for Rehearing

74.5. Notice 79.6. Extension of Time

74.6. Briefs and Oral Argument 79.7. Service

(a) Briefs.

(b) Oral Argument.

74.7. Intervention by the State

74.8. Opinion on Certified Question

74.9. Motion for Rehearing

74.10. Answering Certified Questions

Rule 75. Notification; Oral Argument

75.1. Notification of Argument or

xiii

TEXAS RULES OF APPELLATE PROCEDURE

Updated with Amendments Effective September 1, 2016

SECTION ONE: GENERAL PROVISIONS

Notes and Comments

Rule 1. Scope of Rule; Local Rules of Courts of Comment to 1997 change: Former

Appeals subdivision (a) regarding appellate court jurisdiction is

deleted. The power to suspend rules is extended to

1.1. Scope civil cases. Other nonsubstantive changes are made.

These rules govern procedure in appellate Rule 3. Definitions; Uniform Terminology

courts and before appellate judges and post-trial

procedure in trial courts in criminal cases. 3.1. Definitions

1.2. Local Rules (a) Appellant means a party taking an appeal to

an appellate court.

(a) Promulgation. A court of appeals may

promulgate rules governing its practice that (b) Appellate court means the courts of appeals,

are not inconsistent with these rules. Local the Court of Criminal Appeals, and the

rules governing civil cases must first be Supreme Court.

approved by the Supreme Court. Local rules

governing criminal cases must first be (c) Appellee means a party adverse to an

approved by the Court of Criminal Appeals. appellant.

(b) Copies. The clerk must provide a copy of the (d) Applicant means a person seeking relief by a

court's local rules to anyone who requests it. habeas corpus in a criminal case;

dismiss an appeal for noncompliance with a Supreme Court or the Court of Criminal

local rule without giving the noncomplying Appeals for review.

party notice and a reasonable opportunity to

cure the noncompliance. (f) Relator means a person seeking relief in an

original proceeding in an appellate court

Notes and Comments other than by habeas corpus in a criminal

case.

Comment to 1997 change: Subdivision 1.1 is

simplified without substantive change. Subdivision (g) Reporter or court reporter means the court

1.2 is amended to make clear that any person is entitled reporter or court recorder.

to a copy of local rules. Paragraph 1.2(c), restricting

dismissal of a case for noncompliance with a local (h) Respondent means:

rule, is added.

(1) a party adverse to a petitioner in the

Rule 2. Suspension of Rule Supreme Court or the Court of Criminal

Appeals; or

On a party's motion or on its own initiative an

appellate court may — to expedite a decision or for (2) a party against whom relief is sought in

other good cause — suspend a rule's operation in a an original proceeding in an appellate

particular case and order a different procedure; but a court.

court must not construe this rule to suspend any

provision in the Code of Criminal Procedure or to alter 3.2. Uniform Terminology in Criminal Cases

the time for perfecting an appeal in a civil case.

In documents filed in criminal appeals, the parties by Texas Rule of Civil Procedure

are the State and the appellant. But if the State has 306a.3 or acquired actual

appealed under Article 44.01 of the Code of Criminal knowledge of the signing, then a

Procedure, the defendant is the appellee. Otherwise, period that, under these rules, runs

papers should use real names for parties, and such from the signing will begin for that

labels as appellee, petitioner, respondent, and movant party on the earlier of the date when

should be avoided unless necessary for clarity. In the party receives notice or acquires

habeas corpus proceedings, the person for whose relief actual knowledge of the signing.

the writ is requested is the applicant; Code of Criminal But in no event may the period

Procedure article 11.13. begin more than 90 days after the

judgment or order was signed.

Notes and Comments

(2) Exception for restricted appeal.

Comment to 1997 change: The definition of court Subparagraph (1) does not extend

below and the reference to “suing out a writ of error to the time for perfecting a restricted

the court of appeals,” are deleted as those terms are no appeal.

longer used in these rules. Other changes are made.

(b) Procedure to Gain Additional Time. The

Rule 4. Time and Notice Provisions procedure to gain additional time is governed

by Texas Rule of Civil Procedure 306a.5.

4.1. Computing Time

(a) In General. The day of an act, event, or the trial court must sign a written order that

default after which a designated period finds the date when the party or the party’s

begins to run is not included when computing attorney first either received notice or

a period prescribed or allowed by these rules, acquired actual knowledge that the judgment

by court order, or by statute. The last day of or order was signed.

the period is included, but if that day is a

Saturday, Sunday, or legal holiday, the period 4.3. Periods Affected by Modified Judgment in

extends to the end of the next day that is not Civil Case

a Saturday, Sunday, or legal holiday.

(a) During Plenary-Power Period. If a judgment

(b) Clerk's Office Closed or Inaccessible. If the is modified in any respect while the trial court

act to be done is filing a document, and if the retains plenary power, a period that, under

clerk's office where the document is to be these rules, runs from the date when the

filed is closed or inaccessible during regular judgment is signed will run from the date

hours on the last day for filing the document, when the modified judgment is signed.

the period for filing the document extends to

the end of the next day when the clerk's office (b) After Plenary Power Expires. If the trial court

is open and accessible. The closing or corrects or reforms the judgment under Texas

inaccessibility of the clerk's office may be Rule of Civil Procedure 316 after expiration

proved by a certificate of the clerk or counsel, of the trial court’s plenary power, all periods

by a party's affidavit, or by other satisfactory provided in these rules that run from the date

proof, and may be controverted in the same the judgment is signed run from the date the

manner. corrected judgment is signed for complaints

that would not apply to the original judgment.

4.2. No Notice of Trial Court’s Judgment in Civil

Case 4.4. Periods Affected When Process Served by

Publication

(a) Additional Time to File Documents.

If process was served by publication and if a

(1) In general. If a party affected by a motion for new trial was filed under Texas Rule of

judgment or other appealable order Civil Procedure 329 more than 30 days after the

has not — within 20 days after the judgment was signed, a period that, under these rules,

judgment or order was signed — runs from the date when the judgment is signed will be

either received the notice required computed as if the judgment were signed on the date

when the motion for new trial was filed.

Notes and Comments

4.5. No Notice of Judgment or Order of Appellate Comment to 1997 change: This is former Rule 5.

Court; Effect on Time to File Certain Documents. Paragraph 4.1(b) is added. Former paragraph (b)(1) is

omitted because it is covered by other provisions of

(a) Additional Time to File Documents. A party the rules. Former paragraphs (b)(2) and (b)(3) are

may move for additional time to file a omitted because they are duplicative of provisions in

motion for rehearing or en banc the Rules of Civil Procedure, which prescribes the

reconsideration in the court of appeals, a applicable procedure. The phrase “modified, corrected

petition for review, or a petition for or reformed in any respect” in paragraph 4.3(a) is

discretionary review, if the party did not— changed to “modified in any respect,” but no change

until after the time expired for filing the in substance is intended. Former subdivision (e)

document—either receive notice of the regarding notice of judgment by the court of appeals is

judgment or order from the clerk or acquire moved to Rule 12.6. Subdivision 4.5 is revised and

actual knowledge of the rendition of the now makes clear that the court must grant the motion

judgment or order. for additional time if the court finds that the party did

not receive the notice or acquire actual knowledge in

(b) Procedure to Gain Additional Time. The time. Other changes are made throughout the rule.

motion must state the earliest date when the

party or the party's attorney received notice Comment to 2002 change: Subdivision 4.5 is

or acquired actual knowledge that the amended to clarify that a party may obtain additional

judgment or order had been rendered. The time to file documents when the party fails to receive

motion must be filed within 15 days of that notice not only of an appellate court judgment, but of

date but in no event more than 90 days after an appellate court order - such as one denying a motion

the date of the judgment or order. for rehearing - that triggers the appeal period.

changed, consistent with other changes in the rules, to

(1) A motion for additional time to file a specifically address a motion for en banc

motion for rehearing or en banc reconsideration and treat it as a motion for rehearing.

reconsideration in the court of appeals

must be filed in and ruled on by the court

of appeals in which the case is pending. Rule 5. Fees in Civil Cases

(2) A motion for additional time to file a A party who is not excused by statute or these

petition for review must be filed in and rules from paying costs must pay — at the time an item

ruled on by the Supreme Court. is presented for filing — whatever fees are required by

statute or Supreme Court order. The appellate court

(3) A motion for additional time to file a may enforce this rule by any order that is just.

petition for discretionary review must be

filed in and ruled on by the Court of Notes and Comments

Criminal Appeals. Comment to 1997 change: This is former Rule 13.

The rule is simplified. The fees an appellate court may

(d) Order of the Court. If the court finds that charge in a civil case are now specified by Supreme

the motion for additional time was Court order.

timely filed and the party did not—

within the time for filing the motion for Rule 6. Representation by Counsel

rehearing or en banc reconsideration,

petition for review, or petition for 6.1. Lead Counsel

discretionary review, as the case may

be—receive the notice or have actual (a) For Appellant. Unless another attorney is

knowledge of the judgment or order, the designated, lead counsel for an appellant is

court must grant the motion. The time the attorney whose signature first appears on

for filing the document will begin to run the notice of appeal.

on the date when the court grants the

motion. (b) For a Party Other Than Appellant. Unless

another attorney is designated, lead counsel being sent notices, copies of documents, or

for a party other than an appellant is the other communications, that attorney may file

attorney whose signature first appears on the a nonrepresentation notice in the appellate

first document filed in the appellate court on court. The notice must:

that party's behalf.

(1) state that the attorney is not representing

counsel may be designated by filing a notice

stating that attorney's name, mailing address, (2) state that the court and other counsel

telephone number, fax number, if any, email should communicate directly with the

address, and State Bar of Texas identification party in the future;

number. If a new lead counsel is being

designated, both the new attorney and either (3) give the party's name and last known

the party or the former lead counsel must sign address and telephone number; and

the notice.

(4) be signed by the party.

6.2. Appearance of Other Attorneys

(b) Appointed Counsel. In a criminal case, an

An attorney other than lead counsel may file a attorney appointed by the trial court to

notice stating that the attorney represents a specified represent an indigent party cannot file a

party to the proceeding and giving that attorney's nonrepresentation notice.

name, mailing address, telephone number, fax

number, if any, and State Bar of Texas identification 6.5. Withdrawal

number. The clerk will note on the docket the

attorney's appearance. When a brief or motion is filed, An appellate court may, on appropriate terms and

the clerk will note on the docket the name of each conditions, permit an attorney to withdraw from

attorney, if not already noted, who appears on the representing a party in the appellate court.

document.

(a) Contents of Motion. A motion for leave to

6.3. To Whom Communications Sent withdraw must contain the following:

Any notice, copies of documents filed in an (1) a list of current deadlines and settings in

appellate court, or other communications must be sent the case;

to:

(2) the party's name and last known address

(a) each party’s lead counsel on appeal; and telephone number;

(b) a party’s lead counsel in the trial court if: (3) a statement that a copy of the motion was

delivered to the party; and

(1) that party was represented by counsel in

the trial court; (4) a statement that the party was notified in

writing of the right to object to the

(2) lead counsel on appeal has not yet been motion.

designated for that party; and

(b) Delivery to Party. The motion must be

(3) lead counsel in the trial court has not delivered to the party in person or mailed —

filed a nonrepresentation notice or been both by certified and by first-class mail — to

allowed to withdraw; the party at the party's last known address.

counsel. motion, the withdrawing attorney must

immediately notify the party, in writing, of

6.4. Nonrepresentation Notice any deadlines or settings that the attorney

knows about at the time of withdrawal but

(a) In General. If, in accordance with paragraph that were not previously disclosed to the

6.3(b), the lead counsel in the trial court is party. The withdrawing attorney must file a

copy of that notice with the court clerk. appellate court may order substitution on

any party's motion at any time.

(d) Exception for Substitution of Counsel. If an

attorney substitutes for a withdrawing 7.2. Public Officers

attorney, the motion to withdraw need not

comply with (a) but must state only the (a) Automatic Substitution of Officer. When a

substitute attorney’s name, mailing address, public officer is a party in an official capacity

telephone number, fax number, if any, and to an appeal or original proceeding, and if

State Bar of Texas identification number. that person ceases to hold office before the

The withdrawing attorney must comply with appeal or original proceeding is finally

(b) but not (c). disposed of, the public officer’s successor is

automatically substituted as a party if

6.6. Agreements of Parties or Counsel appropriate. Proceedings following

substitution are to be in the name of the

To be enforceable, an agreement of parties or their substituted party, but any misnomer that does

counsel concerning an appellate court proceeding not affect the substantial rights of the parties

must be in writing and signed by the parties or their may be disregarded. Substitution may be

counsel. Such an agreement is subject to any appellate ordered at any time, but failure to order

court order necessary to ensure that the case is substitution of the successor does not affect

properly presented. the substitution.

Notes and Comments (b) Abatement. If the case is an original

Comment to 1997 change: Former Rules 7 and proceeding under Rule 52, the court must

57 are merged and substantially revised. Former Rule abate the proceeding to allow the successor to

8 regarding agreements of counsel is included here as reconsider the original party's decision. In all

subdivision 6.6 and the requirement that an agreement other cases, the suit will not abate, and the

be filed and included in the record is deleted. successor will be bound by the appellate

court's judgment or order as if the successor

were the original party.

Rule 7. Substituting Parties

Notes and Comments

7.1. Parties Who Are Not Public Officers Comment to 1997 change: This is former Rule 9.

Former subdivision (a) regarding death of a party in a

(a) Death of a Party. civil case is now subparagraph 7.1(a)(1). Former

subdivision (b) regarding death of a party in a criminal

(1) Civil Cases. If a party to a civil case dies case is now subparagraph 7.1(a)(2). Former

after the trial court renders judgment but subdivision (c) regarding separation of office by

before the case has been finally disposed public officers is now subdivision 7.2. Former

of on appeal, the appeal may be paragraph (c)(3) regarding a successor's liability for

perfected, and the appellate court will costs is omitted as unnecessary. Former subdivision

proceed to adjudicate the appeal as if all (d) regarding substitution for other causes is now

parties were alive. The appellate court's paragraph 7.1(b). Subdivision 7.2 is revised to make it

judgment will have the same force and applicable to all cases in which a public officer is a

effect as if rendered when all parties party, and to make substitution automatic if

were living. The decedent party's name appropriate.

may be used on all papers.

(2) Criminal Cases. If the appellant in a Rule 8. Bankruptcy in Civil Cases

criminal case dies after an appeal is

perfected but before the appellate court 8.1. Notice of Bankruptcy

issues the mandate, the appeal will be

permanently abated. Any party may file a notice that a party is in

bankruptcy. The notice must contain:

(b) Substitution for Other Reasons. If

substitution of a party in the appellate court is (a) the bankrupt party’s name;

necessary for a reason other than death, the

(b) the court in which the bankruptcy proceeding

is pending; 9.1. Signing

number; and by counsel, a document filed on that party's

behalf must be signed by at least one of the

(d) the date when the bankruptcy petition was party's attorneys. For each attorney whose

filed. Comment to 2008 change: The name appears on a document as representing

requirement that the bankruptcy notice that party, the document must contain that

contain certain pages of the bankruptcy attorney's State Bar of Texas identification

petition is eliminated, given that electronic number, mailing address, telephone number,

filing is now prevalent in bankruptcy courts fax number, if any, and email address.

and bankruptcy petitions are available

through the federal PACER system. (b) Unrepresented Parties. A party not

represented by counsel must sign any

8.2. Effect of Bankruptcy document that the party files and give the

party’s mailing address, telephone number,

A bankruptcy suspends the appeal and all periods fax number, if any, and email address.

in these rules from the date when the bankruptcy

petition is filed until the appellate court reinstates or (c) Electronic Signatures. A document that

severs the appeal in accordance with federal law. A is electronically served, filed, or issued by a

period that began to run and had not expired at the time court or clerk is considered signed if the

the proceeding was suspended begins anew when the document includes:

proceeding is reinstated or severed under 8.3. A

document filed by a party while the proceeding is (1) a "/s/" and name typed in the space where

suspended will be deemed filed on the same day, but the signature would otherwise appear,

after, the court reinstates or severs the appeal and will unless the document is notarized or

not be considered ineffective because it was filed sworn; or

while the proceeding was suspended.

(2) an electronic image or scanned image of

8.3. Motion to Reinstate or Sever Appeal the signature.

Suspended by Bankruptcy

(a) Motion to Reinstate. If a case has been 9.2. Filing

suspended by a bankruptcy filing, a party

may move that the appellate court reinstate (a) With Whom. A document is filed in an

the appeal if permitted by federal law or the appellate court by delivering it to:

bankruptcy court. If the bankruptcy court has

lifted or terminated the stay, a certified copy (1) the clerk of the court in which the

of the order must be attached to the motion. document is to be filed; or

(b) Motion to Sever. A party may move to sever (2) a justice or judge of that court who is

the appeal with respect to the bankrupt party willing to accept delivery. A justice or

and to reinstate the appeal with respect to the judge who accepts delivery must note on

other parties. The motion must show that the the document the date and time of

case is severable and must comply with delivery, which will be considered the

applicable federal law regarding severance of time of filing, and must promptly send it

a bankrupt party. The court may proceed to the clerk.

under this paragraph on its own initiative.

(b) Filing by Mail.

Notes and Comments

(1) Timely Filing. A document received

Comment to 1997 change: This is a new rule. within ten days after the filing deadline

is considered timely filed if:

Rule 9. Documents Generally (A) it was sent to the proper clerk by

United States Postal Service or a particular case.

commercial delivery service;

(4) Timely Filing. Unless a document must

(B) it was placed in an envelope or be filed by a certain time of day, a

wrapper properly addressed and document is considered timely filed if it

stamped; and is electronically filed at any time before

midnight (in the court's time zone) on the

delivered to a commercial delivery document is deemed filed when

service on or before the last day for transmitted to the filing party's electronic

filing. filing service provider, except:

(2) Proof of Mailing. Though it may (A) if a document is transmitted on a

consider other proof, the appellate court Saturday, Sunday, or legal holiday,

will accept the following as conclusive it is deemed filed on the next day

proof of the date of mailing: that is not a Saturday, Sunday, or

legal holiday; and

(A) a legible postmark affixed by the

United States Postal Service; (B) if a document requires a motion and

an order allowing its filing, the

(B) a receipt for registered or certified document is deemed filed on the

mail if the receipt is endorsed by the date the motion is granted.

United States Postal Service;

(5) Technical Failure. If a document is

States Postal Service; or system outage, the filing party may seek

appropriate relief from the court.

(D) a receipt endorsed by the

commercial delivery service. (6) Confirmation of Filing. The electronic

filing manager will send a filing

(1) Requirement. Attorneys in civil cases (7) Electronic Notices From the Court. The

must electronically file documents. clerk may send notices, orders, or other

Attorneys in criminal cases must communications about the case to the

electronically file documents except for party electronically. A court seal may be

good cause shown in a motion filed in electronic.

the appellate court. Unrepresented

parties in civil and criminal cases may 9.3. Number of Copies

electronically file documents, but it is

not required. (a) Courts of Appeals.

(2) Mechanism. Electronic filing must be (1) Document Filed in Paper Form. If a

done through the electronic filing document is not electronically filed, a

manager established by the Office of party must file the original and one

Court Administration and an electronic unbound copy of the document unless

filing service provider certified by the otherwise required by local rule. The

Office of Court Administration. unbound copy of an appendix must

contain a separate page before each

(3) Exceptions. Documents filed under seal, document and must not include tabs that

subject to a pending motion to seal, or to extend beyond the edge of the page.

which access is otherwise restricted by

law or court order must not be (2) Electronically Filed Document.

electronically filed. For good cause, an Unless required by local rule, a party

appellate court may permit a party to file need not file a paper copy of an

other documents in paper form in a electronically filed document.

inch margins on both sides and at the top and

(b) Supreme Court and Court of Criminal bottom.

Appeals.

(d) Spacing. Text must be double-spaced, but

(1) Document Filed in Paper Form. If a footnotes, block quotations, short lists, and

document is not electronically filed, a issues or points of error may be single-

party must file the original and 11 copies spaced.

of any document addressed to either the

Supreme Court or the Court of Criminal (e) Typeface. A document produced on a

Appeals, except that in the Supreme computer must be printed in a conventional

Court only an original and one copy must typeface no smaller than 14-point except for

be filed of any motion, response to the footnotes, which must be no smaller than 12-

motion, and reply in support of the point. A typewritten document must be

motion, and in the Court of Criminal printed in standard 10-character-per-inch

Appeals, only the original must be filed (cpi) monospaced typeface.

of a motion for extension of time or a

response to the motion, or a pleading (f) Binding and Covering. A paper document

under Code of Criminal Procedure must be bound so as to ensure that it will not

article 11.07. lose its cover or fall apart in regular use. A

paper document should be stapled once in the

(2) Electronically Filed Document. Paper top left-hand corner or be bound so that it will

copies of each document that is lie flat when open. A paper petition or brief

electronically filed with the Supreme should have durable front and back covers

Court or the Court of Criminal Appeals which must not be plastic or be red, black, or

must be mailed or hand- delivered to the dark blue.

Supreme Court or the Court of Criminal

Appeals, as appropriate, within three (g) Contents of Cover. A document's front cover,

business days after the document is if any, must contain the case style, the case

electronically filed. The number of number, the title of the document being filed,

paper copies required shall be the name of the party filing the document,

determined, respectively, by order of the and the name, mailing address, telephone

Supreme Court or the Court of Criminal number, fax number, if any, email address,

Appeals. and State Bar of Texas identification number

of the lead counsel for the filing party. If a

record need be filed in any proceeding. appeals, the request must appear on the front

cover of that party’s first brief.

9.4. Form

(h) Appendix and Original Proceeding Record.

Except for the record, a document filed with an A appendix may be bound either with the

appellate court, including a paper copy of an document to which it is related or separately.

electronically filed document, must — unless the court If separately bound, the appendix must

accepts another form in the interest of justice — be in comply with paragraph (f). A paper record in

the following form: an original proceeding or a paper appendix

must be tabbed and indexed. An

(a) Printing. A document may be produced by electronically filed record in an original

standard typographic printing or by any proceeding or an electronically filed

duplicating process that produces a distinct appendix that includes more than one item

black image. Printing must be on one side of must contain bookmarks to assist in locating

the paper. each item.

(b) Paper Type and Size. The paper on which (i) Length.

a document is produced must be 8a/2 by 11

inches, white or nearly white, and opaque. (1) Contents Included and Excluded.

In calculating the length of a document,

document, including headings, reply to a response to a petition in an

footnotes, and quotations, must be original proceeding in the Supreme

counted except the following: caption, Court, and a reply to a response to a

identity of parties and counsel, statement petition for discretionary review in

regarding oral argument, table of the Court of Criminal Appeals:

contents, index of authorities, statement 2,400 words if computer-generated,

of the case, statement of issues and 8 pages if not.

presented, statement of jurisdiction,

statement of procedural history, (3) Certificate of Compliance. A computer-

signature, proof of service, certification, generated document that is subject to a

certificate of compliance, and appendix. word limit under this rule must include a

certificate by counsel or an

(2) Maximum Length. The documents unrepresented party stating the number

listed below must not exceed the of words in the document. The person

following limits: certifying may rely on the word count of

the computer program used to prepare

(A) A brief and response in a direct the document.

appeal to the Court of Criminal

Appeals in a case in which the death (4) Extensions. A court may, on motion,

penalty has been assessed: 37,500 permit a document that exceeds the

words if computer- generated, and prescribed limit.

125 pages if not.

(j) Electronically Filed Documents. An

(B) A brief and response in an appellate electronically filed document must:

court (other than a brief under

subparagraph (A)) and a petition (1) be in text-searchable portable

and response in an original document format (PDF);

proceeding in the court of appeals:

15,000 words if computer- (2) be directly converted to PDF

generated, and 50 pages if not. In a rather than scanned, if possible;

civil case in the court of appeals, the

aggregate of all briefs filed by a (3) not be locked;

party must not exceed 27,000 words

if computer- generated, and 90 (4) be combined with any appendix

pages if not. into one computer file, unless that

file would exceed the size limit

and a reply to a response to a manager; and

petition in an original proceeding in

the court of appeals: 7,500 words if (5) otherwise comply with the

computer- generated, and 25 pages Technology Standards set by the

if not. Judicial Committee on Information

Technology and approved by the

(D) A petition and response in an Supreme Court.

original proceeding in the Supreme

Court, a petition for review and (k) Nonconforming Documents. If a document

response in the Supreme Court, a fails to conform with these rules, the court

petition for discretionary review and may strike the document or identify the error

response in the Court of Criminal and permit the party to resubmit the

Appeals, and a motion for rehearing document in a conforming format by a

and response in an appellate court: specified deadline.

4,500 words if computer- generated,

and 15 pages if not. 9.5. Service

(E) A reply to a response to a petition (a) Service of All Documents Required. At or

for review in the Supreme Court, a before the time of a document's filing, the

filing party must serve a copy on all parties to filed promptly.

the proceeding. Service on a party

represented by counsel must be made on that (e) Certificate Requirements. A certificate of

party’s lead counsel. Except in original service must be signed by the person who

proceedings, a party need not serve a copy of made the service and must state:

the record.

(1) the date and manner of service;

(b) Manner of Service.

(2) the name and address of each person

(1) Documents Filed Electronically. A served; and

document filed electronically under Rule

9.2 must be served electronically (3) if the person served is a party's attorney,

through the electronic filing manager if the name of the party represented by that

the email address of the party or attorney attorney.

to be served is on file with the electronic

filing manager. If the email address of 9.6. Communications With the Court

the party or attorney to be served is not

on file with the electronic filing Parties and counsel may communicate with the

manager, the document may be served appellate court about a case only through the clerk.

on that party or attorney under

subparagraph (2). 9.7. Adoption by Reference

(2) Documents Not Filed Electronically. A Any party may join in or adopt by reference all or

document that is not filed electronically any part of a brief, petition, response, motion, or other

may be served in person, by mail, by document filed in an appellate court by another party

commercial delivery service, by fax, or in the same case.

by email. Personal service includes

delivery to any responsible person at the 9.8. Protection of Minor's Identity in Parental-

office of the lead counsel for the party Rights Termination Cases and Juvenile Court

served. Cases

alias means one or more of a person's initials

(1) Service by mail is complete on mailing. or a fictitious name, used to refer to the

person.

(2) Service by commercial delivery service

is complete when the document is placed (b) Parental-Rights Termination Cases. In an

in the control of the delivery service. appeal or an original proceeding in an

appellate court, arising out of a case in which

(3) Service by fax is complete on receipt. the termination of parental rights was at

issue:

(4) Electronic service is complete on

transmission of the document to the (1) except for a docketing statement, in all

serving party's electronic filing service papers submitted to the court, including

provider. The electronic filing manager all appendix items submitted with a

will send confirmation of service to the brief, petition, or motion:

serving party.

(A) a minor must be identified only by

(d) Proof of Service. A document presented for an alias unless the court orders

filing must contain a proof of service in the otherwise;

form of either an acknowledgment of service

by the person served or a certificate of (B) the court may order that a minor's

service. Proof of service may appear on or be parent or other family member be

affixed to the filed document. The clerk may identified only by an alias if

permit a document to be filed without proof necessary to protect a minor's

of service, but will require the proof to be identity; and

when the underlying suit was filed.

accordingly; (b) Filing of Documents Containing Sensitive

Data Prohibited. Unless the inclusion of

(2) the court must, in its opinion, use an alias sensitive data is specifically required by a

to refer to a minor, and if necessary to statute, court rule, or administrative

protect the minor's identity, to the regulation, an electronic or paper document

minor's parent or other family member. containing sensitive data may not be filed

with a court unless the sensitive data is

original proceeding in an appellate court, under Section Two.

arising out of a case under Title 3 of the

Family Code: (c) Redaction of Sensitive Data; Retention

Requirement. Sensitive data must be redacted

(1) except for a docketing statement, in all by using the letter "X" in place of each

papers submitted to the court, including omitted digit or character or by removing the

all appendix items submitted with a sensitive data in a manner indicating that the

brief, petition, or motion: data has been redacted. The filing party must

retain an unredacted version of the filed

(A) a minor must be identified only by document during the pendency of the appeal

an alias; and any related proceedings filed within six

months of the date the judgment is signed.

(B) a minor's parent or other family

member must be identified only by (d) Notice to Clerk. If a document must

an alias; and contain sensitive data, the filing party must

notify the clerk by:

accordingly; (1) designating the document as

containing sensitive data when the

(2) the court must, in its opinion, use an alias document is electronically filed; or

to refer to a minor and to the minor's

parent or other family member. (2) if the document is not electronically

filed, by including, on the upper left-

(d) No Alteration of Appellate Record. Nothing hand side of the first page, the phrase:

in this rule permits alteration of the original "NOTICE: THIS DOCUMENT

appellate record except as specifically CONTAINS SENSITIVE DATA."

authorized by court order.

(e) Restriction on Remote Access. Documents

9.9 Privacy Protection for Documents Filed in that contain unredacted sensitive data in

Civil Cases. violation of this rule must not be posted on

the Internet.

(a) Sensitive Data Defined. Sensitive data

consists of: Notes and Comments

(1) a driver's license number, passport Comment to 1997 change: This is former Rule

number, social security number, tax 4. Subdivision 9.4, prescribing the form of documents

identification number or similar filed in the appellate courts, is changed and the form

government-issued personal to be used is stated in significantly more detail.

identification number; Former subdivisions (f) and (g), regarding service of

documents, are merged into subdivision 9.5. Former

(2) a bank account number, credit card Rule 6 is included as subdivision 9.6, but no

number, or other financial account substantive change is made. Other changes are made

number; and throughout the rule. Electronic filing is authorized by

§§ 51.801-.807 of the Government Code.

(3) a birth date, a home address, and the

name of any person who was a minor Comment to 2002 change: The change [to Rule

9.5(a)] clarifies that the filing party must serve a copy appellate courts, effective January 1, 2014. In

of the document filed on all other parties, not only in addition, Rule 9.9 is added to provide privacy

an appeal or review, but in original proceedings as protection for all documents, both paper and

well. The rule applies only to filing parties. Thus, electronic, filed in civil cases in appellate courts.

when the clerk or court reporter is responsible for

filing the record, as in cases on appeal, a copy need not 9.10 Privacy Protection for Documents Filed in

be served on the parties. The rule for original civil Criminal Cases.

proceedings, in which a party is responsible for filing

the record, is stated in subdivision 52.7. (a) Sensitive Data Defined. Sensitive data

consists of:

Subdivision 9.7 is added to provide express

authorization for the practice of adopting by reference (1) a driver's license number, passport

all or part of another party's filing. number, social security number, tax

identification number or similar

Comment to 2008 change: Subdivision 9.3 is government-issued personal

amended to reduce the number of copies of a motion identification number;

for extension of time or response filed in the Supreme

Court. Subdivision 9.8 is new. To protect the privacy (2) bank account number, credit card

of minors in suits affecting the parent-child number, and other financial account

relationship (SAPCR), including suits to terminate number;

parental rights, Section 109.002(d) of the Family Code

authorizes appellate courts, in their opinions, to (3) a birth date, a home address, and the

identify parties only by fictitious names or by initials. name of any person who was a minor at

Similarly, Section 56.01(j) of the Family Code the time the offense was committed.

prohibits identification of a minor or a minor's family

in an appellate opinion related to juvenile court (b) Redacted Filings. Unless a court orders

proceedings. But as appellate briefing becomes more otherwise, an electronic or paper filing with

widely available through electronic media sources, the court, including the contents of any

appellate courts' efforts to protect minors' privacy by appendices, must not contain sensitive data.

disguising their identities in appellate opinions may be

defeated if the same children are fully identified in (c) Exemptions from the Redaction Requirement.

briefs and other court papers available to the public. The redaction requirement does not apply to

The rule provides protection from such disclosures. the following:

Any fictitious name should not be pejorative or

suggest the person's true identity. The rule does not (1) A court filing that is related to a criminal

limit an appellate court's authority to disguise parties' matter or investigation and that is

identities in appropriate circumstances in other cases. prepared before the filing of a criminal

Although appellate courts are authorized to enforce the charge or is not filed as part of any

rule's provisions requiring redaction, parties and amici docketed criminal case;

curiae are responsible for ensuring that briefs and

other papers submitted to the court fully comply with (2) An arrest or search warrant;

the rule.

(3) A charging document and an affidavit

Comment to 2012 Change: Rule 9 is revised to filed in support of any charging

consolidate all length limits and establish word limits document;

for documents produced on a computer. All

documents produced on a computer must comply with (4) A defendant’s date of birth;

the word limits. Page limits are retained for documents

that are typewritten or otherwise not produced on a (5) A defendant’s address; and

computer.

(6) Any government issued number

Comment to 2013 Change: Rule 9 is revised to intended to identify the defendant

incorporate rules for electronic filing, in accordance associated with a criminal filing, except

with the Supreme Court's order - Misc. Docket No. 12- for the defendant’s social security

9206, amended by Misc. Docket Nos. 13-9092 and 13- number or driver’s license number.

9164 - mandating electronic filing in civil cases in

(d) Redaction procedures. Sensitive data must be sealed container if the sealed material is filed

redacted by using the letter “X” in place of in paper form, or be the first document that

each omitted digit or character or by appears if filed in electronic form. Sealed

removing the sensitive data in a manner portions of the clerk's and reporter's records

indicating that the data has been redacted. should be clearly marked and separated from

The filer must retain an unredacted version of unsealed portions and tendered as separate

the filed document during the pendency of records, whether in paper form or electronic

the appeal and any related proceedings filed form. Sealed material shall not be available

within three years of the date the judgment is either on the internet or in other form without

signed. If a district court clerk or appellate court order.

court clerk discovers unredacted sensitive

data in the record, the clerk shall notify the (h) Waiver of Protection of Identifiers. A person

parties and seek a ruling from the court. waives the protection of this rule as to a

person’s own information by filing it without

(e) Certification. The filing of a document redaction and not under seal.

constitutes a certification by the filer that the

document complies with paragraphs (a) and Rule 10. Motions in the Appellate Courts

(b) of this rule.

10.1. Contents of Motions; Response

(f) Reference List. If a filer believes any

information described in paragraph (a) of this (a) Motion. Unless these rules prescribe another

rule is essential to a document or that the form, a party must apply by motion for an

document would be confusing without the order or other relief. The motion must:

information, the filer may submit the

information to the court in a reference list that (1) contain or be accompanied by any matter

is in paper form and under seal. The reference specifically required by a rule governing

list must specify an appropriate identifier that such a motion;

corresponds uniquely to each item listed. Any

reference in the document to a listed (2) state with particularity the grounds on

identifier will be construed to refer to the which it is based;

corresponding item of information. If the filer

provides a reference list pursuant to this rule, (3) set forth the order or relief sought;

the front page of the document containing the

redacted information must indicate that the (4) be served and filed with any brief,

reference list has been, or will be, provided. affidavit, or other paper filed in support

On its own initiative, the court may order a of the motion; and

sealed reference list in any case.

(5) in civil cases, except for motions for

(g) Sealed materials. Materials that are required rehearing and en banc reconsideration,

by statute to be sealed, redacted, or kept contain or be accompanied by a

confidential, such as the items set out in certificate stating that the filing party

Articles 35.29 (Personal Information About conferred, or made a reasonable attempt

Jurors), 38.45 (Evidence Depicting or to confer, with all other parties about the

Describing Abuse of or Sexual Conduct by merits of the motion and whether those

Child or Minor), and 42.12, § 9(j), must be parties oppose the motion.

treated in accordance with the pertinent

statutes and shall not be publicly available on (b) Response. A party may file a response to a

the internet. A court may also order that a motion at any time before the court rules on

document be filed under seal in paper form or the motion or by any deadline set by the

electronic form, without redaction. The court court. The court may determine a motion

may later unseal the document or order the before a response is filed.

filer to provide a redacted version of the

document for the public record. If a court 10.2. Evidence on Motions

orders material sealed, whether it be sensitive

data or other materials, the court's sealing A motion need not be verified unless it depends

order must be affixed to the outside of the on the following types of facts, in which case the

motion must be supported by affidavit or other Record. A motion relating to informalities in

satisfactory evidence. The types of facts requiring the manner of bringing a case into court must

proof are those that are: be filed within 30 days after the record is filed

in the court of appeals. The objection, if

(a) not in the record; waivable, will otherwise be deemed waived.

(b) not within the court's knowledge in its official (b) Motions to Extend Time.

capacity; and

(1) Contents of Motion in General. All

attorney signing the motion. to extend time for filing a notice of

appeal, must state:

10.3. Determining Motions

(A) the deadline for filing the item in

(a) Time for Determination. A court should not question;

hear or determine a motion until 10 days after

the motion was filed, unless: (B) the length of the extension sought;

(1) the motion is to extend time to file a (C) the facts relied on to reasonably

brief, a petition for review, or a explain the need for an extension;

petition for discretionary review; and

(2) the motion states that the parties have (D) the number of previous extensions

conferred and that no party opposes the granted regarding the item in

motion; or question.

(3) the motion is an emergency. (2) Contents of Motion to Extend Time to

File Notice of appeal. A motion to

(b) Reconsideration. If a motion is determined extend the time for filing a notice of

prematurely, any party adversely affected appeal must:

may request the court to reconsider its order.

(A) comply with (1)(A) and (C);

10.4. Power of Panel or Single Justice or Judge to

Entertain Motions (B) identify the trial court;

(a) Single Justice. In addition to the authority (C) state the date of the trial court’s

expressly conferred by these rules or by law, judgment or appealable order; and

a single justice or judge of an appellate court

may grant or deny a request for relief that (D) state the case number and style of

these rules allow to be sought by motion. But the case in the trial court.

in a civil case, a single justice should not do

the following: (3) Contents of motion to extend time to file

petition for review or petition for

(1) act on a petition for an extraordinary discretionary review. A motion to

writ; or extend time to file a petition for review

or petition for discretionary review must

(2) dismiss or otherwise determine an also specify:

appeal or a motion for rehearing.

(A) the court of appeals;

(b) Panel. An appellate court may provide, by

order or rule, that a panel or the full court (B) the date of the court of appeals’

must act on any motion or class of motions. judgment;

10.5. Particular Motions (C) the case number and style of the

case in the court of appeals; and

(a) Motions Relating to Informalities in the

(D) the date every motion for rehearing

or en banc reconsideration was (c) disclose the source of any fee paid or to be

filed, and either the date and nature paid for preparing the brief; and

of the court of appeals' ruling on the

motion, or that it remains pending. (d) certify that copies have been served on all

parties.

parties agree, or unless sufficient cause is Notes and Comments

apparent to the court, a motion to postpone

argument of a case must be supported by Comment to 1997 change: This is former Rule 20.

sufficient cause. The rule is rewritten and now requires disclosure of

the identity of the person or entity on whose behalf the

Notes and Comments brief is filed, and the source of any fee paid.

Comment to 1997 change: This is former Rule 19. Comment to 2002 change: The change expressly

Under subdivision 10.1, a response may be filed at any recognizes that a court may refuse to consider an

time before the court rules on the motion. The amicus curiae brief for good cause.

provision of former subdivision (b) regarding

docketing motions is incorporated in Rule 12.2. The

provision of former subdivision (b) for noting Rule 12. Duties of Appellate Clerk

attorneys’ names on the docket is incorporated in Rule

6.2. Former subdivision (c), requiring the clerk to 12.1. Docketing the Case

send notices of the filing of motions is deleted as

unnecessary because the parties must serve all motions On receiving a copy of the notice of appeal, the

under Rule 9.5. Subdivision 10.2 is amended to petition for review, the petition for discretionary

eliminate the requirement of an oath where the facts review, the petition in an original proceeding, or a

are within the personal knowledge of the attorney. certified question, the appellate clerk must:

Subdivision 10.5 is new and incorporates the

provisions of other rules concerning motions, as (a) endorse on the document the date of receipt;

follows: 10.5(a) from former Rule 71; 10.5(b) from

former Rules 73, 130(d), and 160; and 10.5(c) from (b) collect any filing fee;

former Rule 70. Other changes are made.

Comment to 2008 change: It happens so

infrequently that a non-movant does not oppose a (d) notify all parties of the receipt of the

motion for rehearing or en banc reconsideration that document; and

such motions are excepted from the certificate-of-

conference requirement in Subdivision 10.1(a)(5). (e) if the document filed is a petition for review

Subdivision 10.2 is revised to clarify that facts filed in the Supreme Court, notify the court

supporting a motion need not be verified by the filer if of appeals clerk of the filing of the petition.

supporting evidence is in the record, the facts are

known to the court, or the filer has personal knowledge 12.2. Docket Numbers

of them. Subdivision 10.5(b)(3)(D) is added.

The clerk must put the case's docket number on

each item received in connection with the case and

Rule 11. Amicus Curiae Briefs must put the docket number on the envelope in which

the record is stored.

An appellate clerk may receive, but not file, an

amicus curiae brief. But the court for good cause may (a) Numbering System. Each case filed in a court

refuse to consider the brief and order that it be of appeals must be assigned a docket number

returned. An amicus curiae brief must: consisting of the following four parts,

separated by hyphens:

(a) comply with the briefing rules for parties;

(1) the number of the court of appeals

(b) identify the person or entity on whose behalf district;

the brief is tendered;

(2) the last two digits of the year in which clerk’s office;

the case is filed;

(g) if the court allows an original document or

(3) the number assigned to the case; and exhibit to be taken by a party and it is not

returned, the court may accept the opposing

(4) the designation “CV” for a civil case or party’s statement concerning the document’s

“CR” for a criminal case. or exhibit’s nature and contents;

(b) Numbering Order. Each case must be (h) withdrawn material must not be removed

docketed in the order of its filing. from the court’s jurisdiction; and

appeal filed in the same case must be given its own initiative, modify any of these

the same docket number. conditions.

(d) Appeals Not Yet Filed. A motion relating to 12.5. Clerk's Duty to Account

an appeal that has been perfected but not yet

filed must be docketed and assigned a docket The clerk of an appellate court who receives

number that will also be assigned to the money due another court must promptly pay the

appeal when it is filed. money to the court to whom it is due. This rule is

enforceable by the Supreme Court.

12.3. Custody of Papers

12.6. Notices of Court’s Judgments and Orders

The clerk must safeguard the record and every

other item filed in a case. If the record or any part of it In any proceeding, the clerk of an appellate court

or any other item is missing, the court will make an must promptly send a notice of any judgment, mandate

order for the replacement of the record or item that is or other court order to all parties to the proceeding.

just under the circumstances.

Notes and Comments

12.4. Withdrawing Papers

Comment to 1997 change: This is former Rule 18.

The clerk may permit the record or other filed Former subdivision (b), regarding the preparation of

item to be taken from the clerk’s office at any time, on the record, is moved to the order concerning the

the following conditions: preparation of the appellate record. Former Rule 14,

which is revised and simplified, is relocated here as

(a) the clerk must have a receipt for the record or subdivision 12.5. Subdivision 12.6, requiring the clerk

item; to send a notice of any order or judgment of an

appellate court, is added. Other changes are made.

(b) the clerk should make reasonable conditions

to ensure that the withdrawn record or item is Comment to 2002 change: Subdivision 12.6 is

preserved and returned; amended to require the clerk to notify the parties of all

of the court's rulings, including the mandate.

or item at any time;

Rule 13. Court Reporters and Court Recorders

(d) after the case is submitted to the court and

before the court’s decision, the record cannot 13.1. Duties of Court Reporters and Recorders

be withdrawn;

The official court reporter or court recorder must:

(e) after the court’s decision, the losing party

must be given priority in withdrawing the (a) unless excused by agreement of the parties,

record; attend court sessions and make a full record

of the proceedings;

(f) the clerk may not allow original documents

filed under Rule 34.5(f) or original exhibits (b) take all exhibits offered in evidence during a

filed under Rule 34.6(g) to be taken from the proceeding and ensure that they are marked;

before the court take preference over other work.

a proceeding ends; 13.4. Report of Reporters

(d) perform the duties prescribed by Rules 34.6 To aid the trial court in setting priorities under

and 35; and 13.3, each court reporter must give the trial court a

monthly written report showing the amount and nature

(e) perform other acts relating to the reporter's of the business pending in the reporter's office. A copy

or recorder's official duties, as the trial court of this report must be filed with the appellate clerk of

directs. each district in which the court sits.

13.2. Additional Duties of Court Recorder 13.5. Appointing Deputy Reporter

The official court recorder must also: When the official court reporter is unable to

perform the duties in 13.1 or 13.2 because of illness,

(a) ensure that the recording system functions press of official work, or unavoidable absence or

properly throughout the proceeding and that disability, the trial court may designate a deputy

a complete, clear, and transcribable recording reporter. If the court appoints a deputy reporter, that

is made; person must file with the trial court clerk a document

stating:

(b) make a detailed, legible log of all proceedings

being recorded, showing: (a) the date the deputy worked;

(1) the number and style of the case before (b) the court in which the deputy worked; and

the court;

(2) the name of each person speaking; deputy worked.

(3) the event being recorded such as the voir 13.6. Filing of Notes in a Criminal Case

dire, the opening statement, direct and

cross- examinations, and bench When a defendant is convicted and sentenced, or

conferences; is granted deferred adjudication for a felony other that

a state jail felony, and does not appeal, the court

(4) each exhibit offered, admitted, or reporter must — within 20 days after the time to

excluded; perfect the appeal has expired — file the untranscribed

notes or the original recording of the proceeding with

(5) the time of day of each event; and the trial court clerk. The trial court clerk need not

retain the notes beyond 15 years of their filing date.

(6) the index number on the recording

device showing where each event is Notes and Comments

recorded;

Comment to 1997 change: Former Rules 11 and

the original log; appear as subdivisions 13.1, 13.5 and 13.6. Former

Rule 11(b) is omitted as unnecessary. The provisions

(d) have the original recording stored to ensure of former Rule 12(a) are moved to Rule 35.3. Former

that it is preserved and is accessible; and Rules 12(b) and (c) now appear as subdivisions 13.3

and 13.4. The rule is made to apply to court recorders

(e) ensure that no one gains access to the original as well as court reporters. Paragraph 13.1(a) merges

recording without the court's written order. paragraphs (a)(1) and (2) of former Rule 11, and now

requires the reporter to make a record of voir dire and

13.3. Priorities of Reporters closing argument unless excused by agreement of the

parties. Paragraph 13.1(b) is new, but codifies current

The trial court must help ensure that the court practice. Subdivision 13.2 is new and specifies rules

reporter's work is timely accomplished by setting work for electronic recording of proceedings. A provision

priorities. The reporter's duties relating to proceedings requiring a deputy court reporter to file with the trial

court clerk a document identifying the proceedings in argument, the response should state the injury

which the reporter worked is included in paragraph that will allegedly result from coverage.

13.5. Other changes are made.

Comment to 2002 change: Subdivision 13.1(a) is the interest of justice, shorten the time for

amended merely for clarification. filing a document under this rule if no party

or interested person would be unduly

prejudiced.

Rule 14. Recording and Broadcasting Court

Proceedings (d) Decision of Court. In deciding whether to

allow coverage, the court may consider

14.1. Recording and Broadcasting Permitted information known ex parte to the court. The

court may allow, deny, limit, or terminate

An appellate court may permit courtroom coverage for any reason the court considers

proceedings to be broadcast, televised, recorded, or necessary or appropriate, such as protecting

photographed in accordance with this rule. the parties' rights or the dignity of the court

and ensuring the orderly conduct of the

14.2. Procedure proceedings.

(a) Request to Cover Court Proceeding. 14.3. Equipment and Personnel

(1) A person wishing to broadcast, televise, The court may, among other things:

record, or photograph a court proceeding

must file with the court clerk a request to (a) require that a person seeking to cover a

cover the proceeding. The request must proceeding demonstrate or display the

state: equipment that will be used;

(A) the case style and number; (b) prohibit equipment that produces distracting

sound or light;

(B) the date and time when the

proceeding is to begin; (c) prohibit signal lights or devices showing

when equipment is operating, or require their

or organization;

(d) prohibit moving lights, flash attachments, or

(D) the type of coverage requested (for sudden lighting changes;

example, televising or

photographing); and (e) require the use of the courtroom's existing

video, audio, and lighting systems, if any;

(E) the type and extent of equipment to

be used. (f) specify the placement of personnel and

equipment;

(2) A request to cover argument of a case

must be filed no later than five days (g) determine the number of cameras to be

before the date the case is set for allowed in the courtroom; and

argument and must be served on all

parties to the case. A request to cover any (h) require pooling of equipment if more than

other proceeding must be filed no later one person wishes to cover a proceeding.

than two days before the date when the

proceeding is to begin. 14.4. Enforcement

(b) Response. Any party may file a response to The court may sanction a violation of this rule by

the request. If the request is to cover measures that include barring a person or organization

argument, the response must be filed no later from access to future coverage of proceedings in that

than two days before the date set for court for a defined period.

argument. If a party objects to coverage of the

Notes and Comments

The grounds for disqualification of an appellate

Comment to 1997 change: This is former Rule 21. court justice or judge are determined by the

The rule is rewritten and now allows recording and Constitution and laws of Texas.

broadcasting of court proceedings at the discretion of

the court and subject to the stated guidelines. 16.2. Grounds for Recusal

The grounds for recusal of an appellate court

Rule 15. Issuance of Writ or Process by Appellate justice or judge are the same as those provided in the

Court Rules of Civil Procedure. In addition, a justice or

judge must recuse in a proceeding if it presents a

15.1. In General material issue which the justice or judge participated

in deciding while serving on another court in which

(a) Signature Under Seal. A writ or process the proceeding was pending.

issuing from an appellate court must bear the

court's seal and be signed by the clerk. 16.3. Procedure for Recusal

(b) To Whom Directed; by Whom Served. Unless (a) Motion. A party may file a motion to recuse

a rule or statute provides otherwise, the writ a justice or judge before whom the case is

or process must be directed to the person or pending. The motion must be filed promptly

court to be served. The writ or process may after the party has reason to believe that the

be served by the sheriff, constable, or other justice or judge should not participate in

peace officer whose jurisdiction includes the deciding the case.

county in which the person or court to be

served may be found. (b) Decision. Before any further proceeding in

the case, the challenged justice or judge must

Writs. The writ or process must be returned participation in the case or certify the matter

to the issuing court according to the writ's to the entire court, which will decide the

direction. If the writ or process is not motion by a majority of the remaining judges

executed, the clerk may issue another writ or sitting en banc. The challenged justice or

process if requested by the party who judge must not sit with the remainder of the

requested the former writ or process. At a court to consider the motion as to him or her.

party's request, the clerk may issue two or

more writs simultaneously. (c) Appeal. An order of recusal is not reviewable,

but the denial of a recusal motion is

15.2. Appearance Without Service; Actual reviewable.

Knowledge

Notes and Comments

A party who appears in person or by attorney in

an appellate court proceeding — or who has actual Comment to 1997 change: Former Rules 15 and

knowledge of the court's opinion, judgment, or order 15a are merged. Former Rule 15a appears as

related to a writ or process — is bound by the opinion, subdivision 16.2. For grounds for disqualification,

judgment, or order to the same extent as if personally reference is made to the Constitution and statutes

served under 15.1. rather than the Rules of Civil Procedure. The

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