Header graphic for print

Texas Appellate Law Blog

Civil Appellate Practice Tips, Resources, and News

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.

Registration Open for 28th Annual Advanced Civil Appellate Practice Course

Posted in Appellate Practice

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.

State Bar Appellate Section Launches Redesigned Website

Posted in Announcements, Technology

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.

Appellate Sections Once Again Co-Sponsoring SCOTX Event

Posted in Announcements, Texas Supreme Court

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.

SCOTX: Postjudgment Interest—All Accrual Dates Are Not Created Equal

Posted in Appellate Practice, Opinions & Judgments, Procedure, Supreme Court Orders, Texas Supreme Court, Trial Courts

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.