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Texas Appellate Law Blog Civil Appellate Practice Tips, Resources, and News

An Unopposed Briefing Extension Request Will Be Granted, Right?

Posted in Appellate Practice, Briefs, Procedure

Appellate work is very time- and labor-intensive. Because it’s difficult to work on more than one matter at a time, appellate lawyers often rely on extensions of briefing deadlines to manage workloads. Texas appellate courts are usually very generous about granting such extensions, particularly when they are unopposed.

So I’m sure appellant’s counsel was surprised when he received this letter in response to an unopposed extension request:

This was a second extension request regarding appellant’s reply brief. The appellate court granted additional time in response to the first request, but not as much as the appellant sought. The basic reason given for the second request was “we’re really busy” and the extension granted was not enough.

However, when granting first extensions, the Amarillo Court of Appeals sends a letter informing counsel as follows:

Ordinarily, the Court does not grant requests for subsequent extensions absent good cause. The Court does not generally consider the normal press of business good cause. See Curry v. Clayton, 715 S.W.2d 77, 79 (Tex. App.-Dallas 1986, no writ).

Curry involved a motion to extend time for responding to requests for admissions. The party stated that his delay was not intentional, but was merely the result of his attorney’s “busy schedule.” The appellate court concluded that “[a] statement that the delay was due to the attorney’s ‘busy schedule,’ without more, is not sufficient to show good cause for permitting the late filing of a response to requests for admissions.”

Technically, “good cause” is not the standard for seeking appellate briefing extensions. Under TRAP 10.5(b), incorporated through TRAP 38.6(d), a motion for extension of time to file a brief need only “reasonably explain the need for an extension.”

Whatever the standard and wherever the court, the moral here is that movants should say more than “we’re really busy” when explaining why a briefing extension is necessary, especially when seeking a second extension of the same deadline. Including some details about concurrent and conflicting deadlines, holiday office closures, recent or upcoming vacations, or even personal matters can help increase the chances that the extension will be granted.

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

    I received a notice from another intermediate court that included the following language:

    The Court notes that motions for extension of time to file brief alleging only that counsel is busy will no longer be accepted as a reason for an extension. Pursuant to Tex. R. App. P. 38.6 and 10.5b, any motions for extension will need to be in detail, and include an explanation why your other work takes precedence over this case. A motion requesting an extension of more than 60 days to file a brief and successive motions for extensions of time to file a brief are disfavored and rarely will be granted.