Texas Appellate Law Blog : Texas Appellate Lawyer & Attorney : Smith Law Group, P.C. : Appeals, Sanctions, Summary Judgment : Austin, Texas

With yesterday's regular Friday orders, the Texas Supreme Court denied the petitions for review in five family law cases with the following notation:

The petition for review is denied.  In denying the petition, we neither approve nor disapprove the holding of the court of appeals regarding the constitutionality of Texas Family Code section 263.405(i).

This statute requires potential appellants whose parental rights have been terminated for child abuse or neglect to file a statement of grounds for appeal within 15 days after the trial court signs the termination order.  Jeff Rambin at Tyler Appeals has followed the issue and discusses its significance in this thoughtful post.

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Even before the Texas Supreme Court began live webcasting oral arguments and archiving recent arguments last year (previously discussed here and here), the Court had ditched its old system of recording oral argument on audio cassette tapes.  Digital audio files from oral arguments dating back to 2004 are available through the Oral Argument Audio link on the Court's website.  Now, two new projects are continuing the Court's transition into the digital age.

First, the clerk's office is in the process of converting all the old oral argument cassettes to digital .mp3 files and making them available via the same link.  The Court used to charge for copies of oral argument tapes, but decided to preserve the arguments by converting them into digital files and to make them available to the public for free.  Audio of all oral arguments going back to 1989 will be available soon, and when complete, the project is expected to reach back to at least 1985.

Clerk Blake Hawthorne does not believe that any other state supreme court has made oral argument recordings dating back that far available on the web.  The Court's total expenditure on this project has been minimal (about $400) thanks to a cooperative agreement with Thomson West, who loaned the equipment necessary to convert the audio cassettes to digital files.  

Thomson West is also involved in the second project.  In exchange for providing transcripts of oral arguments dating back to January 2000—which will be available for free on the Court's website—Thomson West will be able to use video from the Court's oral arguments in a new service that will allow subscribers to search oral argument transcripts just as they do any other document.  The transcript search results will be linked to the oral argument video, so subscribers will effectively be able to search the oral argument video for words or phrases.

Anyone who reads this blog knows I'm a big proponent of technology, and digitization is an important way of preserving information that otherwise could be lost to history.  The Court and the clerk's office should be commended for these efforts.

Source:  Blake Hawthorne, Clerk, Supreme Court of Texas.  The Supreme Court of Texas Blog has also commented on these developments.

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Now that the Texas Supreme Court has broken for the summer (sort of), I'd like to start a series I'm calling "20 Questions About Texas Appellate Practice."  My intent is to answer the questions someone unfamiliar with Texas appellate law might ask when faced with the prospect of taking or defending an appeal in the Lone Star State.

Here's what I've come up with so far: 

1.   How is the Texas appellate court system structured?

2.   What kinds of orders are subject to appeal in Texas?

3.   What is required to perfect appeal?

4.   If an appeal is not available, do I have any other options for obtaining higher court review?

5.   What are post-trial motions, and what is their effect?

6.   Is a judgment automatically stayed while the case is on appeal?

7.   What is the appellate record, and how do I go about getting it?

8.   What is a docketing statement?

9.   What rules apply to appellate briefs, and when must briefs be filed?

10.  What standards do appellate courts use when reviewing a trial court’s rulings?

11.  How long will an appeal take?

12.  What will an appeal cost?

13.  Will the court of appeals hold oral argument in my case?

14.  What can I expect from oral argument?

15.  What are my chances for obtaining relief on appeal?

16.  What are my options if I lose in the court of appeals?

17.  How does the Texas Supreme Court’s petition for review process work?

18.  When does an appellate court’s judgment become final and enforceable?

19.  Does Texas recognize appellate practice as a specialty?

20.  What value does an appellate specialist add to a trial team?

Each question will be the subject of its own post.  As I go through them, I will update this post to hyperlink each question to its respective answer.  The list is flexible, so if you have a question that you don't think I intend to cover, please send it to me, and I'll see about working it in.

As always, comments are welcome.  Stay tuned!

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This past Saturday marked the second anniversary of my law firm.  My sentiments today are much the same as when I wrote this post marking the first year:

One year ago today, I departed big firm life to start my own appellate boutique—if you can call one lawyer a boutique!  The result has exceeded my expectations in almost every way.  While I am grateful for the opportunities I had at Fulbright & Jaworski and the excellent experience I obtained there, my current practice is a much better fit for my personality and work style, and it is also better for my family (although my wife would say that I don't work any less).  Special thanks to all the folks who have referred cases to me or hired me over the past year.  Without you, I wouldn't be posting this message.

I am fortunate to continue working on a number of interesting matters with great clients who are also really great people.  In this day and age, that makes all the difference in the world.

I remain thankful to those who have sent me referrals or retained me to work alongside them on their own cases this past year.  The continued success of my practice depends on these existing relationships and on developing new ones.  If you have a matter that could use the attention of an appellate specialist, please don't hesitate to contact me to discuss how I can help.

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The Texas Supreme Court issued four decisions with this week's regular orders.

In City of Waco v. Lopez (No. 06‑0089), a retaliatory discharge action in which the City filed a plea to the jurisdiction, the Court held that  the Texas Commission on Human Rights Act  provided the exclusive state statutory remedy.  The Court reversed the court of appeals’ judgment and dismissed the case because the only pleaded theory was not actionable and because plaintiff had not satisfied the administrative prerequisites for maintaining a retaliation claim.

In David J. Sacks, P.C. v. Haden (07‑0472) (per curiam), the Court concluded that an unambiguous written attorney's fee agreement specifying only hourly rates could not be modified by any oral agreement to cap the total fees to be charged.  Because the court of appeals held that evidence of an oral agreement raised a fact issue on whether the parties had a meeting of the minds, the supreme court reversed and reinstated the trial court's judgment awarding damages to the law firm for breach of contract.

In a related case, David J. Sacks, P.C. v. Haden (07‑0487) (per curiam), the court of appeals reversed a turnover order in the law firm's favor after reversing the trial court's money judgment.  Because of the result reached in No. 07-0472, the supreme court reversed and remanded so the court of appeals could consider whether the turnover order was proper under Section 31.002(e) of the Civil Practice and Remedies Code. 

In Sells v. Drott (07‑0848) (per curiam), the Court reversed a default judgment granted after the trial court struck facially valid answers filed on defendant's behalf without notice to defendant that the answers' validity was in dispute.

This set of orders marks the beginning of "summer recess."  A few opinions and rulings on petitions may trickle out over the next several weeks, but the Court has no conferences scheduled until mid-August.

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Several months ago, Tyler appellate lawyer Jeff Rambin contacted me for input on a blog he was putting together focusing on appellate matters in East Texas.  Like me, Jeff signed up with LexBlog, whose designers did just as good a job with his blog as they did with mine.

I'm finally getting around to giving the Tyler Appeals Blog its own link in the "Texas Law Blogs" category on the right, although it could just as easily be listed under "Appellate Blogs."  I'm choosing the former, given Jeff's focus on Texas law.

A belated welcome to the blogosphere, Jeff, and congratulations on being named yesterday's Inter Alia Blawg of the Day!

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Faced with an opposing brief that preceded a conclusion with the word "clearly," my first supervising partner sometimes responded with this quote from Texas Supreme Court Justice Nathan Hecht:

I have learned in more than a decade of judging that what is claimed to be clear seldom is.

Nathan L. Hecht, Foreword to W. Wendell Hall, Revisiting Standards of Review in Civil Appeals, 24 St. Mary's L.J. 1041, 1043 (1993).

I always thought this was an effective—if pithy—way of highlighting the weakness in reasoning that intensifiers tend to reveal.  Now, a legal-writing professor and a statistics professor have teamed up to show a correlation between using intensifiers in appellate briefs and bad appellate outcomes.   It's not a causal relationship, mind you, but the study provides another reason to avoid lapsing into "an intensifier-rich mode of writing."

Thanks to Rob Gilbreath for bringing this article to my attention.

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The State Bar Appellate Section and Texas Bar CLE are co-sponsoring the 22nd Annual Advanced Civil Appellate Practice Course, which is set for September 4-5, 2008 at the Four Seasons Hotel here in Austin.  The popular Appellate Boot Camp will take place on September 3 and the Section's annual meeting is scheduled for September 6, to be followed by a cocktail reception with the judiciary.

I have attended this seminar for many years and strongly recommend it to any lawyer who handles appeals with any regularity or who is interested in doing so.  A brochure with registration information is available here.

Aside from its timely topics, informative speakers, and excellent written materials, the best part of this program may be what has become an annual Appellate Song Lyrics Contest, in which contestants are asked to alter the lyrics of a well known song to give it an "appellate" touch.  You will find the contest rules here and in the Summer issue of The Appellate Advocate, which should be hitting Section members' mailboxes in the next couple of weeks. The contest submission deadline is 5:00 p.m. on Friday, August, 15.

To give you an idea how creative (and fun!) appellate lawyers can be, here is last year's winning entry, set to the tune of Paul Simon's "50 Ways to Leave Your Lover":

50 Ways To Waive Your Error

The problem's all in your record she said to me.
The answer is easy if you brief it legally.
I'd like to help you but your objection's absentee.
There must be fifty ways to waive your error.

She said it's really not my habit to advise.
Furthermore, I hope my counsel won't lead to your demise.
But I'll repeat myself so the court's words won't surprise.
There must be fifty ways to waive your error.
Fifty ways to waive your error

CHORUS 1:
You just fail to object, Hecht
Leave it outta the brief, Chief
You don't need to be seen, Green
Just get it denied PC
Don't make a bill, Phil
just take a big chill pill
don't timely appeal, O'Neill
and get it denied PC

She said it grieves me so to see you in such straits.
I wish there was something I could do to lower your rates.
I said I appreciate that, as again she explicates.
About the fifty ways...

She said why don't we both just work on it all night.
And I believe by the morning you'll begin to see the light.
The error's jurisdictional, my liability is slight.
There must be... fifty ways to waive your error
Fifty ways to waive your error

CHORUS 2:
You just fail to object, Hecht
Leave it outta the brief, Chief
don't bother to call, Paul
Just get denied PC
Just say you forgot, Scott
The issue's long gone, Don
it's already stale, Dale
And it's been denied... PC

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