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Texas Appellate Law Blog

Civil Appellate Practice Tips, Resources, and News

Tips for Superseding Travis County District Court Judgments

Posted in Appellate Practice, Supersedeas

Along with retiring Chief Deputy Clerk Michelle Brinkman, I spoke to the Austin Bar Civil Appellate Section today on “Tips for Superseding Travis County District Court Judgments.” New Travis County District Clerk Velva Price and the incoming Chief Deputy Clerk Caroline Legette—both of whom are lawyers— attended the luncheon as Section guests. As a former Chair of the Section, I was pleased to be invited as a speaker.

I arrived early to make sure my MacBook would communicate with the venue’s projector and even had a backup plan, but alas, I could not get the projector to work. It may have been for the best. Supersedeas is a somewhat difficult topic, and not having slides forced me to try and engage the audience without visuals. Having Michelle present with me was a big plus, as she has more than a few war stories from her years in the trenches.

A big takeway from our discussion was to use the District Clerk’s bond calculation spreadsheet as a starting point for determining the amount needed to supersede a judgment pending appeal. The form has some rules emanating from case law and other sources built into it, and it is an extremely useful tool even if your case is not in Travis County.

We did not have the opportunity to mention some statistics Michelle pulled before our talk:

  • About 75% of the supersedeas bonds filed in District Court are accompanied by the calculation form.
  • The District Clerk prepared 343 abstracts of judgment in Fiscal Year 2014.
  • 186 writs of execution were issued in Fiscal Year 2014.
  • There are currently no supersedeas funds held in the registry.

The phantom slides from this presentation appear below, in case anyone is interested.

Old-School Legal Researchers: ThomsonWest Is Shuttering Westlaw Classic—and Soon

Posted in Appellate Practice, Technology

It’s been five years since ThomsonReuters (then ThomsonWest) launched WestlawNext and re-branded the legal research database many lawyers grew up on as “Westlaw Classic.” I received notice yesterday that my firm’s access to the old version will cease at the end of March, leaving WestlawNext as the only option available under our contract. This is part of TR’s planned takedown of Westlaw Classic.

I have used WestlawNext exclusively since its launch. I find it fairly intuitive, and the interface is undoubtedly more pleasing to the eye than the old version. I love being able to filter searches down to a particular appellate court, save my research into folders, and share those folders with other users on our account. WestlawNext is not perfect, but it gets the job done for our practice.

It’s a cliché, but lawyers as a group are resistant to change. Some have hung onto Westlaw Classic tightly, either because they’re comfortable with it and it meets their needs or because they just won’t take the time to learn something new. Change is hard, but it’s inevitable. If you’re still using Westlaw Classic, it’s time to evolve.

Image courtesy of Flickr by Blake Patterson 

The Last of the Perry Appointees

Posted in Courts of Appeals, News & Politics

Post updated 1/12/15.

As reported on this blog’s Twitter feed, Governor Rick Perry has appointed five new justices to various intermediate courts of appeals. They are:

  • 352nd District Court Judge Bonnie Sudderth, who will replace new Tarrant County Criminal Court at Law Judge Bob McCoy on the Second Court of Appeals;
  • Cindy Bourland (pictured), a private practitioner with Bourland Law Firm PC, who will fill the Third Court of Appeals seat vacated by new Chief Justice Jeff Rose;
  • Bexar County Court at Law Judge Jason Pulliam, who will replace newly-elected Chief Justice Sandee Bryan Marion on the Fourth Court of Appeals;
  • David Schenck, an appellate lawyer with Dykema Gossett PLLC, who will fill the seat opened by long-serving Fifth Court of Appeals Justice Michael O’Neill’s retirement; and
  • Sole practitioner Greg Neely, who will replace retiring Justice Sam Griffith on the Twelfth Court of Appeals.

Each of the new justices is filling an unexpired term and will stand for election in 2016.

Many assumed that Governor-Elect Greg Abbott would be making these appointments after he takes office on January 20. The reason Governor Perry made them instead most likely involves the timing of the upcoming legislative session, which begins on January 13. Under the Texas Constitution, recess appointees may take office immediately, subject to later approval from the Texas Senate. However, when the Senate is in session—as it will be starting next Tuesday—the appointee must be confirmed before being sworn in. See Tex. Const. art. IV § 12(b)-(c). Because our legislature only meets every other year, its agenda is quite full with matters of statewide importance (i.e., school finance). Thus, leaving these appointments to Governor Abbott could have significantly delayed seating the new justices and hindered their respective courts’ dockets.

Chief Justices Rose and Marion Take Office

Posted in Announcements, News & Politics

Two Texas intermediate appellate courts have begun the new year under new leadership from judges whom the voters elevated from other positions on those courts. Jeff Rose (pictured) has taken the oath as Chief Justice of Austin’s Third Court of Appeals, and Sandee Bryan Marion has now assumed her duties as Chief Justice of San Antonio’s Fourth Court of Appeals. These promotions leave each court short one justice until the appointment process plays out.

Practicing in Austin and primarily before the Third Court, I have had the opportunity to watch Chief Justice Rose’s career develop and to get to know him both personally and as a jurist. He ran an excellent campaign devoid of party politics and has pledged to continue the good work begun by former Chief Justice Woodie Jones, who came to a court beleaguered by infighting and inefficiency when he took the helm six years ago. I expect Chief Justice Rose to lead a collegial court whose members are faithful to the law and take their responsibility to the people of Texas seriously.

Photo credit: Justice Scott Field (@ScottKingField) via Twitter

Celebrating Chief Justice Woodie Jones

Posted in Announcements, Courts of Appeals, News & Politics

The Austin Bar Association Civil Appellate Law Section, along with several law-firm sponsors (including Smith Law Group, P.C.), is hosting a retirement reception for Third Court of Appeals Chief Justice Woodie Jones on Thursday, December 11, 2014, from 5:00 to 7:00 p.m. at the Headliners Club.

As many Austin-area readers know, Chief Justice Jones is winding up his second stint on the Third Court. He was elected Justice in 1998 and served in that capacity for twelve years. After a successful run in private practice, he unseated the incumbent chief justice in the 2008 election and has led the Court successfully ever since.

Justice Jeff Rose won a contested election to replace the Chief and knows he has big shoes to fill. Come out Thursday evening and help us celebrate Chief Justice Jones’s fine judicial career.

2014 Election Results, Texas Appellate Edition

Posted in Courts of Appeals, Criminal Appeals, Texas Supreme Court

Republicans continued their dominance of statewide judicial races in yesterday’s election, with Chief Justice Nathan Hecht and Justices Jeff Brown, Jeff Boyd, and Phil Johnson winning new six-year terms on the Texas Supreme Court. In the Court of Criminal Appeals, Judge Bert Richardson, Kevin Patrick Yeary, and David Newell all prevailed by wide margins.

Two sitting court of appeals justices were elevated to chief justice of their respective courts, creating immediate judicial appointment opportunities for Governor-Elect Greg Abbott. Justice Jeff Rose defeated former Justice Diane Henson in the race to take the open seat being vacated by Third Court of Appeals Chief Justice Woodie Jones. Similarly, Justice Sandee Bryan Marion defeated Judge Irene Rios in the race to replace departing Chief Justice Catherine Stone on the Fourth Court of Appeals.

Recent appointee Justice Craig Stoddart and incumbent Justices Kem Thompson Frost and Ken Wise retained their positions on the Fifth and Fourteenth Courts, respectively. Incumbent Justice Dori Contreras Garza, a Democrat, narrowly retained her seat on the Thirteenth Court, defeating Republican challenger Doug Norman by just over 1,500 votes.

The only incumbent to lose an appellate-court race was First Court Justice Jim Sharp, a Democrat. Justice Sharp was defeated by Republican challenger, former district judge Russell Lloyd.

Texas Appellate Courts Get a Major Website Upgrade

Posted in Court Administration, Courts of Appeals, Technology, Texas Supreme Court, Trial Courts

If you’ve received CaseMail updates this week, you’ve likely noticed something new when clicking on the link embedded in your notification emails. Last Friday, the Texas appellate courts got a major online upgrade with the launch of the new and improved txcourts.gov site.

The new site is very user-friendly and much more pleasing to the eye than the old one (courts.state.tx.us). It features drop-down menus and many functions common to modern web design, including a timeline for @txcourts on Twitter. And for those on the move, a well designed mobile version is available on handheld devices.

Content-wise, the user can easily access information about all Texas state courts, specific appellate courts and matters, procedural rules, e-filing, and a host of statistical and other resources. Users of the old site will be able to quickly locate the key information they’re used to accessing, such as online dockets, documents, and submission calendars. After navigating around a bit, I think appellate practitioners and other visitors will be pleased with the change.

Are Lawyer-Hyperlinked Briefs Headed for Extinction?

Posted in Appellate Practice, Briefs, Court Administration, Technology

When used appropriately, hyperlinks to specific portions of the record or to on-point authorities can be a very effective tool in the appellate lawyer’s arsenal. But are recent developments enhancing that tool or effectively taking it away?

Last year, the U.S. Court of Appeals for the Fifth Circuit standardized the format for citing electronic official records. In such cases, the parties are to “cite the short citation form, “ROA,” followed by a period, followed by the page number. For example, “ROA.123.” 5th Cir. R. 28.2.2. The Fifth Circuit made this change largely because it had acquired the ability to generate hyperlinks to the record when uniformly cited, thereby allowing judges to jump to pages they (rather than the advocates) may find important.

Texas appellate courts aren’t far behind. According to a recent report to the Texas Judicial Council, the Fifth Circuit has inspired upcoming enhancements to the Texas Appeals Management and E-filing System (TAMES) that will include automatic linking to record citations. As an additional step, TAMES will “take a properly formatted cite and automatically link it to the case in Westlaw or LexisNexis.”

These developments flow from increased use of technology in processing appellate cases, as well as higher numbers of appellate judges who consume briefs electronically, i.e. on a large monitor or on an iPad. The flexibility and efficiency that goes along with screen reading is generally a good thing—it’s difficult to argue against giving judges the ability to easily pull up any case or record cite they choose when reviewing a party’s brief. And, standardizing record and case cites should level the playing field between the technology haves and have-nots. From the advocate’s perspective, though, hyperlinking everything will make it more challenging to set critical cases or key portions of the record apart.

Justice Moseley’s Departure Creates Unusual Election Scenario

Posted in News & Politics

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.

Update: The Republican party chairs selected former Rockwall County First Assistant District Attorney Craig Stoddart as their candidate, and Governor Perry has since appointed him to fill Justice Moseley’s seat until the election. He will face 95th District Court Judge Ken Molberg, whom the Democratic party chairs chose to fill that side of the ballot.

What Notice Is Required When a Summary-Judgment Hearing Is Re-set?

Posted in Appellate Practice, Courts of Appeals, Motions, Procedure

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.