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Crafting a TRAP 9.4(i)(3) Certificate of Compliance

Posted in Appellate Practice, Briefs, Procedure, Texas Supreme Court

As promised yesterday, this post will cover what a certificate of compliance under the new word-count rules might look like, now that every computer-generated document filed in a Texas appellate court on or after December 1, 2012—yes, every one, except for the record—must include such a certificate.

The new rules provide the logical starting place. TRAP 9.4(i)(3) provides:

Certificate of Compliance. A computer-generated document must include a certificate by counsel or an unrepresented party stating the number of words in the document. The person certifying may rely on the word count of the computer program used to prepare the document.

I received some unsolicited suggestions today and quickly realized that I had lost an opportunity in not holding a contest to craft the best certificate. Here are what some of my Texas appellate brethren have put together so far:

I certify that this document contains ____ words (counting all parts of the document). The body text is in 14 point font, and the footnote text is in 12 point font.  —Rob Gilbreath

I certify that this document brief/petition was prepared with Microsoft Word 2012, and that, according to that program’s word-count function, the sections covered by TRAP 9.4(i)(1) contain ____ words.  —Leif Olson

Relying on the word count function in the word processing software used to produce this document, I certify that the number of words in this reply (excluding any caption, identity of parties and counsel, statement regarding oral argument, table of contents, index of authorities, statement of the case, statement of issues presented, statement of jurisdiction, statement of procedural history, signature, proof of service, certification, certificate of compliance, and appendix) is ____.  Ben Taylor

I think all of these comply with the letter of TRAP 9.4(i)(3), considering its rather sparse express requirements. Rob’s sticks to the literal text, except to note compliance with the new font mandate, and does not rely on exclusions to come in under the word limit. Leif’s goes on to identify his word-processing program, express reliance on it to determine word count, and cite the rule on exclusions. Ben’s takes yet a third approach, reciting the sections excluded from the word count and noting reliance on his word-processing program in determining it, yet does not cite the rule on exclusions or identifying the software used to produce the document.

My stab at a certificate of compliance is based on the 5th Circuit form, which addresses similar typeface and word-count requirements, modified to fit the structure and content of the new Texas rules:

This document complies with the typeface requirements of Tex. R. App. P. 9.4(e) because it has been prepared in a conventional typeface no smaller than 14-point for text and 12-point for footnotes. This document also complies with the word-count limitations of Tex. R. App. P. 9.4(i), if applicable, because it contains ____ words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).

As a practical matter, the first sentence is probably unnecessary because TRAP 9.4(i)(3) doesn’t require any certification regarding typeface. Presumably, the clerk’s office will bounce any brief that fails to use a proper-sized font.

Which approach is best? It would depend in large part on the document being filed. For a letter or motion—neither of which are actually subject to word limits at this point—shorter is probably better. For a petition or brief, more detail may be warranted. Otherwise, it will be mostly a matter of preference. As long as the the document uses the right font sizes and the letter of Rule 9.4(i)((3) is satisfied, the filer will probably be fine.

12/19/12 Update:

I’m going to add some additional certificate-of-compliance language to the end of this post, with attribution to the authors, and may include more samples as they come in.

Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that this brief contains ____ words (excluding the caption, table of contents, table of authorities, signature, proof of service, certification, and certificate of compliance). This is a computer-generated document created in Microsoft Word, using 14-point typeface for all text, except for footnotes which are in 12-point typeface. In making this certificate of compliance, I am relying on the word count provided by the software used to prepare the document.  Lisa Hobbs

Pursuant to TEX. R. APP. P. 9.4, I hereby certify that this ____ contains ____ words. This is a computer-generated document created in Microsoft Word, using 14-point typeface for all text, except for footnotes which are in 12-point typeface. In making this certificate of compliance, I am relying on the word count provided by the software used to prepare the document.  Kurt Kuhn

Margaret Schmucker, who handles mostly criminal appeals, has taken a different tack, creating “check off” list identifying the different types of documents and the relevant word limits.

  • Ryan Kellus Turner

    Well said!

  • Heidi Bloch

    Many of the suggestions you have posted certify the font size, but the rule does not require it. I say too much clutter. How about: I certify that the foregoing document contains _____ words, according to the word count of the computer program used to prepare it, in compliance with Rule 9.4(i)(2).

    • http://www.appealsplus.com/ D. Todd Smith

      Approve.

      D. Todd Smith
      (512) 439-3230
      todd@appealsplus.com

  • http://www.appealsplus.com/ D. Todd Smith

    That’s true, Heidi, as I point out in the post. However, according to a letter I got from the Eastland Court this week, “The 11th Court of Appeals also requires a certification as to the font size in the Certificate of Compliance.” Who knows whether other courts will follow this path.

  • Don Cruse

    For what it’s worth, I have used something like this:

    > The length of this ___________ brief was computed using Microsoft Word for
    Mac 2011, which was instructed to include all portions of the document not
    excluded by Texas Rule of Appellate Procedure 9.4(i). The word count so
    computed is ____.

    Because I use a word processor unlikely to be installed on the court’s machines, I specify the make and model. (I’ve noticed slight variations in word counts across different word processors, at least on the Mac platform.)

    I also saw the Eastland statement about certifying font sizes. Its webpage characterizes the new TRAPs as “includ[ing] the mandatory use of a 14-point font on all computer-generated documents” and requiring that footnotes “must use a 12-point font.” But I read TRAP 9.4 to set a floor, not a ceiling. Brief argument headings are commonly set in varying sizes, and one might choose fractionally larger font sizes (like 12.5) to make footnotes slightly easier to read.

    My inclination is — like your suggested language — to certify compliance with the rule: “The typeface used in the brief is no smaller than 14-point, except for footnotes, which are no smaller than 12-point.”

  • David Weiner

    For a combined appellee/cross-appellant’s brief: “I certifiy under TEX. R. APP. P. 9.4(i)(1), (3) that the Brief for Appellee contains ___ words and that the Brief for Cross-Appellant contains ___ words.”