Texas Appellate Law Blog : Texas Appellate Lawyer & Attorney : D. Todd Smith Law Firm : Appeals, Sanctions, Summary Judgment : Austin, Texas

This is the first installment of my series entitled "20 Questions About Texas Appellate Practice."  The question answered here is:  "How is the Texas appellate court system structured?"  Visit the original post (linked above) for the list of questions updated with links to their respective answers.

Texas has 14 intermediate courts of appeals, each of which hears both civil and criminal cases.  The intermediate courts are located in Houston (1st and 14th Districts), Fort Worth (2nd District), Austin (3rd), San Antonio (4th), Dallas (5th), Texarkana (6th), Amarillo (7th), El Paso (8th), Beaumont (9th), Waco (10th), Eastland (11th), Tyler (12th), and Corpus Christi (13th).  Generally, each court draws cases from its assigned geographic region, although transfers sometimes occur through a process known as "docket equalization."  There are some other jurisdictional quirks, as a handful of the state's 254 counties fall into more than one appellate district, and the state's most densely populated region is served by two intermediate appellate courts (1st and 14th).

A court of appeals has appellate jurisdiction in all civil cases over which the district or county courts have jurisdiction when the amount in controversy or the judgment exceeds $100, exclusive of interest and costs.  The court of appeals has final authority on all factual issues—applying standards of review, it can “unfind” facts the jury found and review the jury’s failure to find certain facts, but it cannot simply substitute its judgment for the jury’s.

Texas is one of only two states with a dual high-court system.  (Oklahoma is the other.)  The Texas Supreme Court has jurisdiction over civil cases as described below.  The Texas Court of Criminal Appeals is the criminal-law equivalent to the supreme court.

The supreme court's jurisdiction is limited to questions of law.  Among the statutory jurisdictional grounds, the following are most common:

• the justices of a court of appeals disagree on a question of law material to the decision (“dissent jurisdiction”);
  
  
• the decision conflicts with a prior decision from another court of appeals or of the supreme court on a question of law material to the case (“conflicts jurisdiction”);
  
  
• the case involves the construction or validity of a statute; or
  
  
• it appears that the court of appeals has committed an error of law, and that the error is of such importance to state jurisprudence that it requires correction.

Although the supreme court cannot decide fact issues of fact, it is the ultimate arbiter of the law. The supreme court may review the court of appeals’ decision to make sure it applied the correct legal standards.

Members of the Texas appellate judiciary run in partisan elections and fill six-year terms.  When a justice leaves office during his or her term, the Governor appoints a replacement.  An appointee must run in the next general election to retain the position for the rest of an unexpired term.

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On the heels of a hotly debated study declaring that California has the top state high court (see discussion here, here, and here), another paper has reached the same conclusion.  At least this time the authors are from other states.

Neither the Texas Supreme Court  nor the Texas Court of Criminal Appeals fared particularly well.  The paper contains several different categories of data, the foundations of which are not always clear.  In a composite of all the categories, ranking a total of 52 courts (Texas and Oklahoma each have separate high courts for civil and criminal matters), SCOTX came in 39th, and the CCA came in 43rd.

Thanks to the Legal Theory Blog, via How Appealing.

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The following is a guest post from Roger Hughes of Adams & Graham, LLP:

Lawyers, and perhaps appellate attorneys, now face a new problem if their briefs or pleadings stretch facts or are flat wrong about them.  That problem is indictment and jail.  This week, the Texas Court of Criminal Appeal decided round two of Vasilas v. State ( PD-1473-06) (May 7, 2008).  The Court reversed the trial court’s ruling that quashed the indictment against an attorney who allegedly made a false statement in a civil pleading.

Vasilas was an attorney for a criminal defendant who beat the criminal charges; Vasilas then filed an expunction suit.  The petition he prepared contained factual error.  Unamused, the DA indicted Vasilas under Texas Penal Code § 37.10(a), which prohibits making false entries in a “government record.”  This is a felony if there is an intent to defraud.  The trial judge quashed the indictment.  Still unamused, the DA appealed.

In the first round, the Court held that a petition in a civil case was a “government record” for the purpose of Section 37.10.  Vasilas v. State, 187 S.W.3d 486 (Tex. Crim. App. 2006).  It remanded to the Dallas Court of Appeals, which determined that the civil rule about frivolous pleadings, TRCP 13, did not supplant the Penal Code and remanded for trial.  Vasilas returned to Court of Criminal Appeals, joined by amici TTLA and TADC.

In Vasilas II, the Court decided that the doctrine of in pari materia did not apply.  Because TRCP 13 was a court rule, not a statute, it doesn't trump the Penal Code for false statements in civil case pleadings.  The Legislature did not write TRCP 13, so there was no reason to use it construe or control Section 37.10.

The upshot is that, no matter what the judge in a civil case does, the DA can still indict and prosecute for arguably false statements in a brief or pleading.  It's a bit scary to think that you can defeat a motion for sanctions over a statement in your brief, but your opponent can still get you indicted.

Think about going to jail for something in your factual statement the next time you write a a brief.  Your ultimate audience may be the DA and a criminal jury.

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Following up on this post, about 300 Texas lawyers have petitioned the Court of Criminal Appeals to adopt a rule permitting the e-filing of petitions, motions, and other documents in death penalty cases.  (UPDATE:  Per this news report, the CCA has agreed to allow e-mail filingfor emergency motions in death penalty cases and other "extraordinary matters.")

As mentioned here, the Texas Supreme Court allows parties to e-mail documents in emergency situations, although it doesn't consider them filed until it receives paper copies.  Change is on the horizon, however, as the state legislature appropriated $2.3 million in the current budget cycle for the State Office of Court Administration to start working on the Texas Appeals Management and E-Filing System.  As with anything government-related, it won't happen quickly, but it will happen.

(Hat tip to the Tex Parte Blog.)

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Austin Lawyer Chuck Herring is circulating a petition to be submitted to the Court of Criminal Appeals (download PDF here), along with the following message:

RE: Rule-Making Petition To Permit E-Filing in Death Penalty Cases

You may have seen the extensive press reports concerning the recent actions of Presiding Judge Sharon Keller of the Texas Court of Criminal Appeals.  In a death-penalty case (Richard), she allegedly refused to permit Mr. Richards lawyers to file papers after 5:00 p.m. on the very day when he was scheduled to be executed.  The lawyers computer had crashed, and they asked for only a twenty minute extension of time to permit the filing which ordinarily the Court grants routinely in death penalty cases when execution is imminent.  On that same day the United States Supreme Court had granted certiorari review on the same point that Mr. Richards's lawyers attempted to raise on his behalf concerning the constitutionality of lethal injection.  Thus, almost certainly a stay of execution would have been granted if Judge Keller had permitted the filing.  She also concealed her unilateral ruling from other judges on the Court, some of whom have publicly criticized her conduct.  As a result, Mr. Richard was executed at 6:00 p.m.on a day when he should have lived.

The press has reported that some twenty prominent Texas lawyers—including a former Bar president and various law professors—have filed a judicial disciplinary complaint against Judge Keller.  Press coverage and editorials across Texas, the country, and even in other nations, have condemned both Judge Keller's actions and the Texas system of justice. . . .

The Richard case dramatizes a glaring deficiency in the Courts procedures:  the Court does not permit e-filing (filing by electronic means).  Many courts and agencies, of course, permit e-filing.  Some require e-filing.  If the Court of Criminal Appeals had permitted e-filing in the Richard case, his lawyers would have been able to file the papers even by the 5:00 p.m. deadline that Judge Keller unilaterally imposed.

Therefore, to help avoid a recurrence of such a tragic, unnecessary execution, lawyers across Texas are joining together to petition the Court to adopt a rule to permit e-filings in death-penalty cases.

Please take a moment to review, sign, and return the attached petition, so that we can help avoid another similar malfunction of justice—and please circulate this petition to other attorneys who may be willing to sign the petition.

Please mail or email (pdf) completed petitions for delivery by Wednesday, October 24th, to:

Chuck Herring
Herring & Irwin, L.L.P.
1105 W. 12^th Street
Austin, Texas 78703
email: cherring@herring-irwin.com

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I don't practice criminal appellate law, and I don't ordinarily follow the the Texas Court of Criminal Appeals, but even I notice when the CCA makes front-page news for the wrong reasons.

In case you haven't heard, the media is lambasting the CCA (more specifically, Presiding Judge Sharon Keller) for refusing to keep the clerk's office open past 5:00 to accept a last-minute filing in a death penalty appeal.  Earlier the same day, the U.S. Supreme Court granted certiorari in a Kentucky case challenging lethal injections as cruel and unusual punishment, and Texas death row inmate Michael Richard was scheduled to die by lethal injection that evening.  The media coverage provides the details, but because of Presiding Judge Keller's decision, the Richard execution went forward without the possibility of court intervention on potentially meritorious grounds.

The Texas Supreme Court doesn't make life-or-death decisions, and it is receiving its share of negative press these days.  But one of the things that court does right is allow electronic or after-hours submissions (with an advance call to the clerk's office, as apparently occurred in the Richard case) to get emergencies in front of the Court when its decisions can still make a difference.  One would think that if a civil court can accommodate litigants when money is the only thing at stake, a criminal court could do the same in matters of life and death.

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