In early June, Fifth Court of Appeals Justice Jim Moseley (pictured) announced that he would be leaving the Court this month. He has since decided to join Gray, Reed & McGraw, where he will chair the firm’s appellate section.
I have appeared before Justice Moseley several times and have always found him to be a thoughtful and considerate jurist, even when I disagreed with the outcome. I’m sure he will do very well in private practice.
The timing of Justice Moseley’s departure has created an interesting and unusual situation. Generally when a sitting justice leaves an appellate court, the Governor appoints a replacement, who takes office subject to Senate confirmation and must run in the next general election to retain the seat. However, because Justice Moseley is departing between the March 2014 primary and the November 2014 general election, his replacement will be elected rather than appointed. The party chairs for the six counties in the Fifth Court’s district will choose candidates to appear on the November ballot.
Texas Lawyer reports on this development here.
Texas litigators are generally familiar with the TRCP 166a requirement that a motion for summary judgment be served at least 21 days before the date specified for a hearing. But what notice is required when the hearing does not go forward on the originally noticed date?
If the nonmovant received the required 21-day notice before the original setting, then another full 21 days is not necessary. In this situation, the intermediate appellate courts have widely recognized that the movant is only obligated to provide reasonable notice of the rescheduled hearing. The issue becomes what is reasonable.
A number of appellate courts have concluded that reasonableness in this context means no less than seven days notice. The thinking is that Rule 166a allows nonmovants that much time to file summary-judgment evidence without leave of court, so they should receive at least that much notice of a re-setting.
This approach seems logical and fair, but the appellate courts have not followed it uniformly. In Hart v. State, the Third Court of Appeals held that three days notice was not unreasonable because the nonmovant, despite receiving the motion more than 75 days before the originally scheduled hearing and 45 days before the re-setting, nevertheless failed to file any response. See No. 03-02-00542-CV, 2003 WL 549273 (Tex. App.—Austin Feb. 27, 2003, no pet.) (mem. op.).
Is the seven-day reasonableness rule absolute? Some decisions treat it that way, but the law is not so certain. Until the Texas Supreme Court addresses this issue, summary-judgment movants should avoid re-setting hearings on less than seven days notice, and respondents should object to any rescheduling notice providing something less.
The State Bar Appellate Section and Texas Bar CLE are co-sponsoring the 28th Annual Advanced Civil Appellate Practice Course, which will take place September 4-5, 2014 here in Austin. Related events are the popular Civil Appellate Practice 101 course on September 3 and the Section’s annual meeting on September 4, to be followed by a reception honoring the judiciary.
I have been privileged to serve on the planning committee and to present at this seminar for several years now. This time around, I will moderate one of two panels in which justices from 8 of our 14 intermediate courts of appeals will discuss issues arising during various stages of the appellate process, as well as practices specific to their courts.
If the past is any indication, attendees can expect a top-notch program. The registration brochure with all the details is available here.
As co-chair of the State Bar of Texas Appellate Section’s Website Committee, I am pleased to share that the Section’s completely revamped website is now live at www.tex-app.org.
The redesigned site allows visitors easy access to information about the Appellate Section, including the latest news and upcoming events, a searchable membership directory, and details about the Section’s award-winning pro bono program. Past issues of The Appellate Advocate are also available, as are several helpful research tools and appellate-related links.
Section members enjoy additional benefits, such as online access to the current Appellate Advocate and a searchable library of CLE articles covering a variety of topics relevant to Texas appellate practice. And, the new site makes joining the Section easy.
The new website—the Committee’s main project over the past two years—is something Section members and leadership should be proud of. It will be a useful resource for years to come.
The Appellate Sections of the State Bar of Texas and the Austin Bar Association are co-sponsoring a program entitled “An Evening with the Texas Supreme Court.” This event—previously held in 2008, 2010, and 2012—will take place on Thursday, April 17, 2014, from 4:30 to 7:00 p.m. at the InterContinental Stephen F. Austin Hotel here in Austin. CLE credit (1.5 hours, .33 ethics) has been requested.
Chief Justice Hecht and Justices Green, Johnson, Willett, Guzman, Lehrmann, Boyd, and Devine will participate in a panel discussion about practice before the Court and other relevant issues. A cocktail reception will follow. Information about cost and how to RSVP is available here.
Prior versions of this event were highly informative and very well attended. I was privileged to serve as moderator in 2012, when I was both the sitting ABA Appellate Section Chair and a member of the State Bar Appellate Section Council. The Court has gone through significant changes since then. I would encourage all Texas lawyers to take advantage of this special opportunity to hear what the new chief justice and the Court’s other members have to say.
Statutes that appear clear are oft fraught with unanswered questions. This is unsurprising, as drafters cannot anticipate every scenario when crafting legislation. Falling into that vein, last week, the Texas Supreme Court decided a previously unaddressed question regarding the accrual date of postjudgment interest under the Texas Finance Code. In Long v. Castle Texas Production Limited Partnership (No. 11-0161), the Court determined the date from which postjudgment interest begins to accrue when remand mandates further evidentiary proceedings. The relevant code subsection, 304.005(a), while not the most elegant prose, adequately conveys its message as follows: “[P]ostjudgment interest on a money judgment of a court in this state accrues during the period beginning on the date the judgment is rendered and ending on the date the judgment is satisfied.” Read simply, the postjudgment interest meter starts running on the date the trial court renders judgment. But what happens when a trial court issues a second judgment on remand after accepting new evidence? Or, in other words, which judgment is considered the court’s rendered “judgment” under section 304.005(a)?
In examining this very question, the Court disagreed with earlier, intermediate appellate decisions and determined the answer depends on whether the trial court must reopen the record on remand. First, the Court revisited earlier precedent, an exception under the Texas Rule of Appellate Procedure 43.3, the Texas Finance Code, and rules of civil procedure to determine that “judgment” meant final judgment. The Court then applied similar authority to outline different scenarios and decide that the accrual date differed depending on whether the trial court must reopen the record. To illustrate the first scenario, the Court recounted the general rule that postjudgment interest accrues from the date of final judgment. It then discussed a limited exception under Rule 43.3: postjudgment interest accrues from the date of the trial court’s original, erroneous judgment when an appellate court renders (or could have rendered) judgment on appeal. Lastly, as a departure from earlier appellate decisions, the Court held that, under circumstances like these, the accrual date coincides with the judgment issued after the trial court reopens the record on remand. The Court reasoned that, in the last scenario, remand for retrial or introducing more evidence would require a different result because the trial court did not originally possess a sufficient record to issue a final judgment.
As a bonus, the Court provided lower courts with some procedural guidance regarding which court, the trial or appellate, decides whether the record needs reopening on remand, and when that court should determine when the record is reopened. Due to the limited nature of an appellate record, the Court held that the trial court should determine whether the record requires reopening on remand; subject, of course, to review on appeal of the final judgment. It also concluded that the trial court should make that determination at the time the appellate court remanded the proceeding.
In the end, the Texas Supreme Court definitively answered a legal question and helped further elucidate the postjudgment interest statute. It also provided some procedural guidance to lower courts.
Since I became a practicing lawyer, I’ve been called for jury duty four times: twice in Dallas County (where I lived from 1997 to 2003), and twice in Travis County (where I live now). This past week, I served my second stint as an actual juror.
My first experience as a juror was in Dallas. It was a felony assault case with facts better suited to a soap opera than a criminal trial. As we began deliberating, one juror announced that he didn’t care what any of us said; he didn’t trust the Dallas Police Department, and he would never vote to convict the defendant. The gentleman stuck to his guns, even though everyone else thought the defendant guilty. Just as we were about to send out a note telling the judge we were deadlocked, we were notified that the prosecution and defense had reached a plea agreement. Thus ended our service.
Last week’s case—also a criminal matter—was tried to a verdict. I don’t want to reveal too many details, but I left with a few observations worth sharing and throwing out for discussion:
- Don’t assume you’ll be struck just because you’re a lawyer. I was the second civil-practice lawyer seated on this jury. Each side only had 30 minutes for voir dire, which provided a very limited opportunity for vetting and ferreting out the potential jurors the parties might find undesirable. We had a Travis County Sheriff’s officer and an Austin Police Department officer—both in uniform—on the venire. Neither of them made it on the jury.
- Criminal cases need better pretrial procedures. Considerable time was wasted sending the jury in and out because the parties didn’t seem to know who the other side’s witnesses were going to be or what exhibits were going to be offered into evidence. The trial judge (who I think did a first-class job) had to take up a lot of objections that could have been dealt with up front.
- Some cases can be tried without over-relying on technology. The prosecution, led by a young lawyer, used PowerPoint and video evidence, but relied mostly on police officers’ testimony. The defense, led by a very seasoned attorney, tried the case by pen and legal pad. Both were legitimate approaches for what turned out to be a simple case.
- Advocates should get to the heart of the matter and avoid redundancy. Some of the evidence was repetitive, of questionable relevance, and arguably hurt the party putting it on. When the jury starts rolling its collective eyes, watch out. A jury that feels like you’re wasting its time can turn on you.
- Explain uncommon terms. The name of a physiological condition was repeated throughout the trial, but neither side defined it or told the jury how to spell it. Trial lawyers should make sure the jury understands what you’re referring to and its significance to the case.
- Criminal jury charges are much simpler than civil charges. At the guilt/innocence phase, we received a three-page jury charge instructing us on the law and asking us to render one of two possible verdicts. As I read the charge, I felt a bit sorry for civil juries, which must deal with complex instructions and definitions and often have pages upon pages of questions to answer. (I should know, because I’m frequently the one who drafts them.)
Several lawyers have told me they would like to serve on a jury. If called, it’s an experience I highly recommend, despite lost time at work and other inconveniences that come along with it. Getting first-hand experience as a juror provides a unique perspective of the system we are sworn to support and a renewed appreciation for our respective roles in that system.
Governor Perry has appointed Fourteenth Court of Appeals Justice Jeff Brown (pictured) to fill the seat being vacated by Justice Nathan Hecht, who in turn is replacing departing Chief Justice Wallace Jefferson. All of these moves officially become effective on October 1, 2013.
Brown began his career clerking for Supreme Court Justice Jack Hightower, then worked at Baker Botts before taking the bench, first as a Harris County district judge and then an appellate justice. He ran for the Supreme Court in 2010 in what wound up as a six-way Republican primary race filled with qualified candidates.
Justice Brown will hit the statewide campaign trail immediately, as he must run in the 2014 general election to retain his new seat. Chief Justice Hecht, Justice Phil Johnson, and Justice Jeff Boyd will also be on the ballot next November.
I am proud to say I knew Justice Brown way back when—I clerked for Justice Raul Gonzalez when he started out with Justice Hightower and have enjoyed following his career since. The Court is getting an excellent jurist who will work hard and treat everyone fairly. Congratulations, Justice Brown!
Related links and posts:
Yesterday afternoon, I spoke at the Advanced Civil Appellate Practice Course, an annual program sponsored by TexasBarCLE and the State Bar Appellate Section. My topic was “How to Handle Cross-Appeals.”
I promised the attendees that I would make my paper and slides available over the web. Clicking the links should open each one in a new window. I hope they are helpful to anyone considering or responding to a cross-appeal in Texas state court.
I have long advocated for adoption of a Texas equivalent to Federal Rule of Appellate Procedure 28.1. That rule—which establishes a uniform method for handling cross-appeals in federal appellate courts—cuts the total number of briefs from six to four, specifies type-volume limits (word counts), and sets a default briefing schedule. I urge the Texas Supreme Court to simplify Texas cross-appeal practice and adopt a similar rule.
Chief Justice Wallace Jefferson (pictured) has announced that he will be departing the Texas Supreme Court effective October 1, 2013. The Texas Lawbook, a Dallas Morning News affiliate, first reported the announcement. It appears that Chief Justice Jefferson, like others who have left the Court in recent years, will return to private practice.
As noted at the Supreme Court of Texas Blog, Chief Justice Jefferson’s decision and timing could allow Governor Perry to make two two appointments to the Court. First, the Governor will appoint Chief Justice Jefferson’s replacement. If that person is a sitting SCOTX justice—and, presumably, he or she will be—the Governor will then appoint someone to fill the seat vacated by the newly appointed chief justice. Because they must stand for election in 2014, the appointees will be campaigning to keep their new jobs from day one.
Chief Justice Jefferson has served on the Supreme Court since 2001 and in his current position since 2004. The Court’s first African-American justice and chief justice, he has steered the Court steadily into the electronic age and has been a staunch advocate for judicial selection reform and judicial pay increases. Jefferson’s predecessor, former Chief Justice Thomas R. Phillips, has been quoted as saying about him: “I can make a strong argument that he is the best chief justice in my lifetime.”