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

Early this year, I accepted an offer from Texas Lawyer to write a quarterly column on technology issues affecting the publication’s namesake audience.  The first article in this series—an update on appellate e-filing in Texas—appeared in this week’s issue. I am happy to report that Law.com picked it up as well.

I've received some nice feedback about the article since it came out.  One particular commenter, Houston’s Scott Rothenberg (who, by the way, gives great ethics CLE presentations and is one of the funniest appellate lawyers you could ever meet) pointed out to me that the Supreme Court Advisory Committee has been considering how the appellate rules should be modified in conjunction with the TAMES program’s forthcoming launch.  The SCAC’s initial rule re-draft and a proposed order directing the form of the record in civil cases are available through the links provided.

The SCAC thoroughly debated this initial proposal about a year ago (the meeting transcripts are here and here), but apparently has not come back to it since then. Though not an item on the current SCAC meeting agenda, the working re-draft provides a glimpse of the kinds of rule changes we should expect to hear more about soon.

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Following up on this post, the Texas Supreme Court has quietly issued orders formally amending the Texas Rules of Appellate Procedure and making technical corrections to the amendments.  

The amendments went into effect today.  A redline comparison of the proposed changes and the final version is available here.

The most significant change from the proposed amendments announced in March appears to be a newly restructured Rule 28, which governs accelerated appeals.  Rather than trump statutory perfection deadlines, the revision clarifies (through the comment to the 2008 changes) that any statutory deadlines will control.

Special thanks to Lisa Hobbs for bringing these orders to my attention.

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The Texas Supreme Court recently announced changes to several Texas Rules of Appellate Procedure and the adoption of Texas Rule of Judicial Administration 15 .  The rules highlighted below will have the broadest effect in civil cases.  My comments appear in italics.

• TRAP 9.3 reduces the number of copies of certain documents a party must file with the Supreme Court and Court of Criminal Appeals.  Great.  Now please give us e-filing.
  
  
• TRAP 9.8 allows appellate courts to use fictitious names or initials in certain family law cases to protect the privacy of minor children.  A sensible move.
  
  
• TRAP 10.1(a)(5) eliminates the certificate-of-conference requirement for motions for rehearing and motions for en banc reconsideration of panel decisions.  It's about time.  Why did it take more than 10 years after the new TRAPs were adopted to fix this quirk?
  
  
• TRAPs 28.1 and 28.2 establish a more uniform appellate timetable for accelerated appeals and add new procedures governing agreed interlocutory appeals.
  
  
• TRAP 38.1 allows parties to include optional written statements regarding oral argument in their briefs.  A lot of us were doing this anyway.
  
  
• TRAP 39  provides the grounds on which the intermediate appellate courts may determine that oral argument is unnecessary.  While well intentioned, this change is meaningless as a practical matter because the court of appeals doesn't have to give the parties a reason for denying oral argument.
  
  
• TRAP 41.3 addresses the precedent that applies in cases transferred from one court of appeals to another for docket-equalization or other purposes.  The transferee court is to apply the law of the transferor.  I always thought that the courts of appeals were to apply the law of Texas, not their own version of it.  This could get interesting if the transferee and transferor courts are split on a given issue.
  
  
• TRAP 49 governs panel rehearing and en banc reconsideration, including new provisions clarifying the procedures for seeking en banc review.
  
  
• TRAP 52 re-focuses the verification requirement in original proceedings from factual statements in the petition to a certification that the filer has reviewed the petition and concluded that factual statements are supported by record evidence.  This change should allow counsel to do the verifying, which will help speed the process of preparing and filing the petition.
  
  
• RJA 15 addresses appeals from trial courts in counties falling in more than one appellate district (Texarkana and Tyler, and Texarkana and Dallas).  When separate appeals are properly filed in more than one court of appeals and the parties cannot agree to consolidate, the trial-court clerk is to randomly select one of the appellate courts for consolidation.  This rule wouldn't be necessary if the legislature would revamp the appellate districts and eliminate the dual-jurisdiction counties. 

The Court is accepting public comments on the proposed changes through June 30, 2008.  The amendments, with any changes, will take effect September 1.

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