Handling your first appeal can be a daunting task. Truth be told, a lot can go wrong. Appeals in Texas courts are so complex that Texas has developed two separate specialty areas of expertise for experienced appellate practitioners (Civil Appellate Law & Criminal Appellate Law). But following a few basic steps can help you get through your first civil appeal.
A few cautions: The following is intended to explain only some of the steps for handling your first civil appeal from a county or district court to the court of appeals when your client is the appellant (or the appealing party). Ensure you have reviewed the law applicable to your case, including the Texas Rules of Appellate Procedure. Furthermore, the following steps are not applicable in every case and are intended only to provide general information, and not legal advice for what you should do in your particular case.
Step 1. Ascertain your client’s goals.
Make sure you know what your client’s goals are. Sometimes clients express a desire to appeal, but their goals can be accomplished through other means, such as a settlement or Rule 11 agreement, or filing a motion to reconsider or motion for new trial with the trial court. Generally, the relief sought by an appellant on appeal is reversal. But appellate courts can either reverse and remand for further proceedings or a new trial, or reverse and render the judgment or order the trial court should have rendered. See Tex. R. App. P. 43.2. Certain trial court errors give rise to these two different outcomes. If your client has already gone through a jury trial and wants the case to be finally resolved—either way—in the appellate court and absolutely does not want to retry the case, ensure that your brief presents only those issues that would result in a reversal and rendition of judgment, as opposed to a remand. See id. R. 38.1(f). Similarly, the prayer section of your brief (see Step 6) should specify whether your client is seeking only a rendition of judgment on appeal or a remand for further proceedings or a new trial. See id. R. 38.1(j).
Step 2. Assess your options in the court of appeals.
Generally, the options in the appellate court are regular appeals (for most appeals from final judgments), accelerated appeals (for appeals from interlocutory orders), and original proceedings (usually mandamus) for orders that are not appealable by statute. Determine whether the ruling, order, or judgment your client desires to challenge is an appealable final or interlocutory order. This determination will affect the proper procedure you must follow in the court of appeals. For further information about determining whether a ruling, order, or judgment is appealable, see Michael J. Ritter, Let It Go: Has Texas Actually Disposed of the Final Judgment Rule as the “General” Rule?, 30:2 & 3 App. Advocate 227 (2018). If you determine the ruling, order, or judgment is not appealable, you can seek permission to appeal in a special discretionary review procedure under section 51.014(d)–(f) of the Civil Practice & Remedies Code, or file an original proceeding in the appellate court. For further information about those procedures, see id.; Michael J. Ritter & Ben Allen, Beware the “Substantive Ruling” Requirement: Preparing a Trial Court’s Order to Avoid Dismissal of Your Permissive Appeal, 80 Tex. Bar. J. 504 (2017); Michael J. Ritter, Permissive Appeals in Texas State Courts: Reconciling Judicial Procedure with Legislative Intent, 36 Rev. Litig. 55 (2017).
Step 3. To get your appeal moving, file the notice of appeal, docketing statement, and request for the reporter’s record.
Generally, an appeal in the court of appeals is initiated when the trial court clerk forwards the notice of appeal to the court of appeals; you must timely file that notice of appeal with the trial court clerk or the appellate court clerk. See Tex. R. App. P. 25.1, 26.1. If you do not timely file the notice of appeal, your appeal might be dismissed because the appellate court loses jurisdiction over the appeal. See id. R. 25.1, 26.1. You must also file a docketing statement “[p]romptly upon filing the notice of appeal.” Id. R. 32.1. The docketing statement typically is a form you fill out, and the form is usually provided by the court of appeals. The docketing statement form will request all the case information and is used by the appellate court “for administrative purposes and does not affect the appellate court’s jurisdiction.” Id. R. 32.4. You must also request the record on appeal. Usually, the record on appeal consists of the “clerk’s record” and the “reporter’s record.” Id. R. 34.1. “Clerk” in clerk’s record refers to the trial court clerk, not the appellate court clerk, and the clerk’s record will consist of certain documents filed with the trial court clerk. Unless you specify more filings to be included in the clerk’s record, the clerk’s record should automatically, without a specific request, contain the documents listed in Rule 34.5. Id. R. 34.5(a). The filing of the notice of appeal in the trial court puts the trial court clerk on notice that you will need a clerk’s record for your appeal. However, for the reporter’s record, you will have to file a request with court reporter(s) who took the record at the hearing or trial that resulted in the ruling, order, or judgment your client desires to appeal. Id. R. 34.6(b). The request for the reporter’s record must be filed “[a]t or before the time for perfecting the appeal.” Id.
Step 4. Pay the costs of the appeal or file a statement of inability to afford payment of costs.
Usually, the appellant (the appealing party) must initially pay the costs for the appeal. The costs for the appeal broadly include the court of appeals’ filing fee and the payments to the trial court clerk and the court reporter(s) for preparation of the record on appeal. If your client is unable to afford payment of these costs, you can file a statement of inability to afford payment of court costs in the trial court under Texas Rule of Civil Procedure 145. More specifically, in the trial court, under TRCP Rule 145, “costs” include costs for the preparation of the record on appeal. Tex. R. Civ. P. 145(c). Under Texas Rule of Appellate Procedure 20.1, “costs” of the appeal refer only to the filing fee, not for the record on appeal. See Tex. R. App. P. 20.1(a). If you or your client does not pay the filing fee or for the clerk’s record, then the appeal may be dismissed for want of prosecution. Id. R. 5, 37.3, 42.3(b). If you or your client does not pay the court reporter for the reporter’s record, then the appeal may proceed without a reporter’s record, which can have the effect of forfeiting most, and sometimes all, complaints you might have about trial court’s errors. If you prevail on appeal, the court should usually order in its judgment that your client recover the costs it incurred related the appeal. Id. R. 43.4.
Step 5. Ensure the record on appeal is accurate and sufficient for the issues you want to present in you brief.
As soon as the record is filed, ensure that the clerk’s record contains all of the filings that you need to show that you presented a matter to the trial court’s attention. If the record on appeal is insufficient or inaccurate, it has the possibility rendering a potentially meritorious issue meritless. Review the transcript in the reporter’s record to make sure it is accurate. “A motion relating to informalities in the manner of bringing a case into court must be filed within 30 days after the record is filed in the court of appeals. The objection, if waivable, will otherwise be deemed waived.” Id. R. 10.5(a). If the clerk’s record or reporter’s record is lacking, notify the court of appeals because once the complete record is filed your brief will become due. Id. R. 38.6(a), (b). Avoid waiting until after your brief is due (or overdue) before informing the court of appeals that the record is not actually complete. If needed, you can request a supplementation of the clerk’s record or reporter’s record without obtaining the court of appeals’ permission; but if you do request supplementation of the record, file a courtesy copy with the court of appeals so the court can accordingly adjust your deadline for filing the appellant’s brief. Id. R. 34.5(c), 34.6(d).
Step 6. Once the complete record is filed, start drafting your appellant’s brief.
The appellant’s brief should include the contents listed in Texas Rule of Appellate Procedure 38.1, in the order that those contents are listed. Id. R. 38.1. For models you can adapt into a template of your own, research recent cases decided by appellate courts involving similar issues as those in your case. Those briefs might also include law relevant to your case. Not all briefs you will find will be the best models, but they can provide a starting point. To see if you can access the briefs, visit http://www.txcourts.gov and navigate to the webpage of the court of appeals that decided the case. Click “Case Search” on the left-hand-side navigation bar. Insert some of the case information, and click “Search.” There is a section, “Appellate Briefs,” where you can view the PDFs of the briefs filed in the case. If the PDFs are not available, you can call the appellate court clerk’s office and request that they email you the briefs, which should be e-filed and in electronic form if the case is recent. Once you start drafting, keep in mind that while all parts of the brief are important, the most important parts are the issues presented (or points of error) and the argument section. When deciding what issues to raise, keep in mind that the court of appeals generally cannot reverse the trial court without preserved error that is harmful. Ensure that your argument section addresses preservation, error, and harm, and also “contain[s] a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” Tex. R. App. P. 38.1(i). If your argument is unclear or does not contain appropriate citations, then the issues you raise on appeal can be considered waived by the court of appeals. This does not necessarily mean you should include unnecessary or redundant information; use your best judgment of what is sufficient, but for appellate briefs, less is usually more. As always remember your duty of candor to the court when making statements of fact or in not disclosing authority adverse to your client’s position. See Tex. Disc. R. Prof. Conduct 3.03(a)(1), (2), (4).
Step 7. Timely file the appellant’s brief or timely request an extension.
Once the trial court clerk has filed the clerk’s record and all volumes of the reporter’s record are filed, the appellant’s brief becomes due. Tex. R. App. P. 38.6(a). In a regular appeal, the appellant’s brief is due within 30 days of the complete record on appeal being filed. Id. In an accelerated appeal, the appellant’s brief is due within 20 days of the complete record on appeal being filed. Id. If you fail to file the appellant’s brief, or fail to do so timely, the court of appeals may dismiss your appeal for want of prosecution. Id. R. 38.8(a)(1). If you need additional time to file your appellant’s brief, file a motion for an extension of time that contains the contents required by Rule 10.1. Id. R. 10.1(b)(1). A good rule of thumb for requesting an extension is to request the amount of time you originally had to file your brief; so, 20-day extensions in accelerated appeals, and 30-day extensions in regular appeals. If you think you only need five more days, for example, you can always file your brief early and impress the Court. But if you’re wrong about needing only five days, requesting a 20- or 30-day extension will prevent you from having to file, and the court from having to rule on, multiple motions. In other words, it’s preferable to file one motion for a thirty day extension, than six motions requesting five-day extensions Also, keep in mind that motions for extensions, and almost all motions in civil appeals, must contain a certificate of conference, stating you conferred or attempted to confer with opposing counsel and stating whether the motion is opposed. Id. R. 10.1(a)(5).
Step 8. Consider whether to file a reply brief.
After you file your appellant’s brief, the appellee’s brief will be due. Id. R. 38.6(b). After the appellee’s brief is filed, review the appellee’s brief and determine whether to file a reply brief. Not all cases justify a reply brief. Most don’t. But a reply brief might be justified if the appellee misrepresents facts or authority that your original appellant’s brief has not already addressed, or to respond to arguments the appellee raises that your appellant’s brief has not already addressed. Id. R. 38.3 (stating the reply brief may address any matter in the appellee’s brief). Typically, there is no need to file a reply brief to remind the court of issues and arguments already raised in your original appellant’s brief. See id. A reply brief that simply restates what your appellant’s brief says can simply be a waste of your time and/or your client’s money. Also note that there is no such thing as a default appellate judgment; technically speaking, the appellee does not even need to file a brief. The appellee’s mere failure to respond to an issue or respond sufficiently does not mean that you automatically prevail, so there’s not point in filing a reply brief to identify what the appellee did not respond to. The court of appeals must consider the issues and argument you present, apply the proper law to the record, and determine whether or not your client is entitled to relief. Additionally, the reply brief is too late to raise new issues and arguments as to why the trial court erred; make sure you present all issues in support of reversal in the original appellant’s brief.
Step 9. Read the court of appeals’ local rules.
Most, if not all, Texas courts of appeals have local rules. Like a trial court’s local rules, a court of appeals’ local rules provide more specifically the procedures adopted by that particular court. These rules are promulgated under Rule 1.2 with the approval of the Supreme Court of Texas, and they can have the same force of the Texas Rules of Appellate Procedure. Id. R. 1.2(a). The courts of appeals’ local rules can be found on their respective webpages on the www.txcourts.gov website. A court of appeals may dismiss your appeal for failing to comply with a local rule, but it must provide you notice and a reasonable opportunity to cure the noncompliance before dismissing an appeal. Id. R. 1.2(c).
Step 10. After the court of appeals decides the case, review the opinion and judgment and again ascertain your client’s goals for pursuing further appellate relief.
Circling back to the first step, you might need to revisit with your client once the court of appeals issues its opinion and judgment in the case. If the court affirms the appealed order or judgment, your client may want to seek further appellate relief. The Texas Rules of Appellate Procedure provide two further appellate options: rehearing in the court of appeals and a petition for review in the Supreme Court of Texas. There are two types of rehearing in the court of appeals: panel rehearing and, for courts with more than three justices, en banc reconsideration. Id. R. 49.1, 49.7. A panel rehearing can be better for identifying oversights of the panel: such as the panel omitted or misstated a material, outcome-determinative fact, failed to address one or more independent issues presented in your brief, or relied on a clearly distinguishable case for its key holdings. If there are typos or mistakes in the opinion that are truly not outcome-determinative, a motion for rehearing generally is not appropriate and if you desire to bring those mistakes to the attention of the court, then consider filing a letter instead of a motion requesting relief. A motion for en banc reconsideration can require that there be truly extraordinary circumstances or a true conflict with a prior decision of the same court of appeals. See id. R. 41.2(c). The second option, which may be pursued with or without filing a motion for panel or en banc rehearing, is timely filing a petition for review in the Supreme Court of Texas. To be timely, a petition for review must be filed within 45 days of court of appeals’ judgment or of its last ruling on all timely filed motion for panel or en banc rehearing. Id. R. 53.7(a). If you prevail in the court of appeals, review the court of appeals’ opinion for language that might adversely affect your client’s interests on remand or in the case the supreme court grants review. Lastly, if you prevail in the court of appeals, check the court of appeals’ judgment to see if the court properly awarded your client costs. Id. R. 43.4 (see Step 4).
Again, the above list contains just some of the basic steps for your first appeal when your client desires to appeal a trial court’s ruling, order, or judgment from a county or district court to the court of appeals. The list is not comprehensive and might not be sufficient in every appeal, but provides some information for steps to take during your first appeal. If you determine that the appeal is more complex than you believe you are competent to address, ensure to gain that competence with further research or study, consult with a senior attorney or law partner, or hire an outside appellate specialist.
Michael is a staff attorney at the Fourth Court of Appeals of Texas. He is board certified in civil appellate law, president of the Texas Association of Appellate Court Attorneys, and an at-large director of the Texas Young Lawyers Association. He created and manages Texas’ first court of appeals blog, 4thCourtUpdates.com. Michael can be reached at michaeljamesritter@gmail.com.